cch_basic_employment_law_manual_for_managers_and_supervisor_8th_ed_2012_Part4.pdf

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA bans discrimination on the basis of past, current, or future military service. It also provides for military leaves of absence and reemployment of employees after military leave. National Labor Relations Act (NLRA). T...

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA bans discrimination on the basis of past, current, or future military service. It also provides for military leaves of absence and reemployment of employees after military leave. National Labor Relations Act (NLRA). The NLRA gives employees the right to unionize, the right to bargain collectively, and the right to engage in other activities for their mutual aid and protection. Sarbanes-Oxley Act of 2002 (SOX). SOX, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, gives whistleblower protection to employees of publicly traded companies (and their subsidiaries) and nationally recognized statistical rating organizations who provide information to governmental authorities about conduct they believe to be mail, wire, securities or shareholder fraud. Employees do not have to prove that actual shareholder fraud occurred before suggesting the need for an investigation. Rather, they need only demonstrate a reasonable belief that the fraud had occurred. Genetic Information Nondiscrimination Act of 2008 (GINA). GINA bars discrimination and retaliation on the basis of genetic information relating to an employee or an employee's family member. Employers may not use genetic information in making employment decisions under any circumstances. Employers are also prohibited from acquiring genetic information about employees and their family members, except in specific circumstances. All genetic information about employees and their family members must be kept confidential under GINA, including information that an employee voluntarily discloses. Lilly Ledbetter Fair Pay Act of 2009. Under the Lilly Ledbetter Fair Pay Act, an employee subjected to compensation discrimination under Title VII, the ADEA or the ADA may file a charge when: • a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted; • an individual becomes subject to the decision or practice; or • an individual is affected by the application of a discriminatory compensation decision or practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from the decision or other practice. This means that the time period for filing a claim restarts each time an employee receives a paycheck based upon a discriminatory compensation decision. The Ledbetter Act applies to all compensation discrimination claims pending on or after that date. STATE LAWS Statutes. Most states have employment laws that provide the same or similar rights as those provided under the federal statutes discussed above. Some state employment laws grant specific additional rights. For instance, discrimination on the basis of sexual orientation or gender identity, political affiliation, marital status, nursing mother status, gun possession or ownership, height or weight, unemployment status, or off-duty conduct may be prohibited under state legislation. 12 Common law. State common law (court-created law) is yet another source of employee rights. Below are some state common law theories under which an employee may sue a company: • Infliction of emotional distress—the employee suffered severe emotional distress as a result of abusive treatment in the workplace. • Defamation—a false or malicious statement (either written or spoken) was made about the employee that resulted in damage to the employee's reputation. • Invasion of privacy—a supervisor publicly disclosed private facts about the employee, such as the details of a performance appraisal. • Interference with employment—a supervisor tried to get the employee fired—or to botch his or her chances of getting or keeping a new job—in order to gain personal revenge or advantage. • Fraud or negligent misrepresentation—the employee suffered harm as a result of reliance on false statements made to the employee about job security, performance evaluations, health hazards, or some other employment matter. • Negligent employment (hiring or retention)—the employee was injured by a coworker whom the company knew or should have known could harm others. • False imprisonment—the employee was detained or restrained against the employee's will. • Battery—the employee was subjected to harmful or offensive contact. • Assault—the employee was threatened with harmful or offensive contact. • Constructive discharge—the employee resigned in response to working conditions that the employee found intolerable. • Discharge in violation of public policy—the employee was fired for exercising a legal right, such as filing a workers' compensation claim; for satisfying a legal obligation, such as serving on a jury or making a required court appearance; or for reporting or protesting the company's illegal conduct. • Breach of contract—an explicit written or spoken employment-related promise (such as a formal agreement to employ the employee for a set number of years) was broken. • Breach of implied contract—an implicit employment-related promise (such as a supervisor's comments implying job security for the employee, or a personnel handbook statement implying that specific disciplinary procedures will be followed before anyone is fired) was broken. 13