Human Resources & Employment Law 2015 - HRD Strategies - Michael Lovett, Nina Lovett

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2015
Human Resources and
Employment Law Update
Presented by:
Michael & Nina Lovett
HRD Strategies, Inc. 3810 N. Elm Street, Suite 207, Greensboro, NC 27405 336-288-3939

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Agenda
Managing Human Resources
At-Will Employment
Employee Relations
Current Focus - In The News
Employment Laws

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Looking Ahead
Can what you don’t know hurt you?
Why can’t we just use our common sense?
Let’s talk !

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The Hiring Process
Before Hiring . . .
Ensure your recruiting process is legal and consistent.
Before beginning the recruiting process determine skill sets
required (Job Description), salary range, who will make the hiring
decision, sources to be utilized, realistic timelines . . .
• Manage the resume flow – fair and consistent evaluation
• Do thorough screening interviews
• Orchestrate the interview process
• Check references and verify credentials
• Guide decision making
• Make offer and close the deal

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The Hiring Process
Before Hiring . . .
• Does your Employment
Application comply with rules
protecting private personal
information?
• Is your screening process non-
discriminatory - are all
applicants are screened using
same criteria?
• Are your interview questions
putting you at risk for
discrimination claims?
• Does your background check
process follow the rules of the
“Fair Credit Reporting Act”?

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• Employment Application
Are you asking for graduation dates,
criminal background, medical info?
• Screening Process
Do you have a formalized criteria
with essential work experience and
educational requirements?
• Interview Process
Have your interviewers been trained
in what they can and cannot ask?
• “Fair Credit Reporting Act”?
Are you only checking items that are
prudent for the position applied?
The Hiring Process
• Does your Employment
Application comply with rules
protecting private personal
information?
• Is your screening process
non-discriminatory - are all
applicants are screened using
same criteria?
• Are your interview questions
putting you at risk for
discrimination claims?
• Does your background check
process follow the rules of the
“Fair Credit Reporting Act”?
Before Hiring . . .

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The Hiring Process
Before Hiring . . .
The Interview Process: Discrimination laws can be
confusing and interviewers sometimes find themselves
surprised at what questions can be considered
discriminatory.
Sex/Marital Status – Instead of:
• Are you married?
• When do you plan to start a family?
• Do you have children?
Ask:
• Are you available to travel frequently?
• Can you work overtime with no notice?
• Can you work evenings and weekends?
• When we check references, are their other names we should look under?
Religion – Instead of:
• What outside activities do you participate in?
Ask:
• What professional societies are you a member of?

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Orientation
After Hiring . . .
• Forms completion (I-9, handbook acknowledgement receipt, federal
and state tax withholding forms, emergency contact information,
benefit enrollment forms, confidentiality/non-disclosure policy
receipt, other business practices policy receipts)
• Benefit plan and enrollment information
• Safety and health policies
• Policy and administrative policy reviews
New Hire Orientation should give new employees an
opportunity to learn more about the organization, their job,
and ensures essential documentation is completed in a timely
fashion.

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Orientation
After Hiring . . .
New Hire Orientation – and don’t forget . . .
Introduce new employees to the organization, its mission,
functions and culture.

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Managing Personnel Records
Practical, Legal, and Security Issues
Personnel records are a well-constructed layout of an
individual’s employment history encompassing all
employment related information collected and
maintained by the employer.
They should provide information on an employee’s work
performance, pay rate, employee benefits, prior work history, work-
related background, training and development, advancement,
counseling and discipline, and other documented employment facts.

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Issues to consider:
• Are personnel record-keeping policies compliant with applicable
state and federal law?
• What should be placed in a personnel file?
• Should I-9’s be kept separately from personnel records?
• Where should medical information be filed? What is considered
protected health information?
• Is the system designed to properly safeguard the privacy of
employee information?
• Are files logistically secure to prevent damage in the event of a
catastrophe (flood, fire, vandalism, theft, tampering, etc.)?

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What to include in Personnel Files:
• Documents used in recruiting, screening and hiring of job candidates ~
includes application of employment, resume, and educational transcripts.
• Job descriptions
• Written documentation of actions taken during course of employment
• Pay and compensation information
• Education and training records
• Receipts for handbooks, employment-at-will disclaimers and policies
• Documentation of employee performance
• Employee recognition programs
• Warnings, counseling and disciplinary action

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What NOT to include in Personnel Files:
• Medical and insurance records, including drug testing
• EEO statistical information pertaining to protected employment status
• Invitation so self-identify disability or veteran status
• Form I-9 and supporting documentation
• Safety training records
• Child support or wage garnishment orders
• Documents created in anticipation of, or in response to litigation
• Confidential, privileged, attorney-client and need-to-know-only information
documentation employee performance
• Information obtained from background investigations and reference checks
• Requests for verification of employment and/or payroll information

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Access Personnel Files:
Personnel records contain a wealth of private and confidential information
susceptible to incidents of identify theft, fraud, and data security breaches.
You should develop a written policy on employee access to personnel files that
will allow the organization to be consistent in response to employees’ requests
to access their files. The policy should:
• Comply with applicable laws
• Specify who is authorized to inspect personnel files
• State, where, when, how often and under what circumstances workers can
review or copy their files
• Provide an opportunity for employees to rebut or challenge information

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Other Considerations for HR
Volunteers: Background checks and screening
 Designing an effective screening program involves: (1)
scrutinizing open positions (what risks does each position pose
to clientele and the nonprofit?), (2) choosing the most
appropriate screening tools for each position or cluster of
positions, and (3) using the screening tools in a consistent,
informed, legally compliant and appropriate fashion.
 The biggest misperception about criminal history background
checks is that they are the only effective way to prevent the
hiring of unsuitable paid or volunteer personnel.
 Criminal history background checks are a single tool in a
toolbox of screening tools that nonprofit leaders should
consider. Applications, interviews, and reference checks are
examples of other invaluable tools that savvy nonprofit leaders
should keep close at hand in the screening toolbox.

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Some Words about Disciplinary Actions:
 In order to operate effectively, organizations need to set standards for
performance and conduct. Cases of minor misconduct or unsatisfactory
performance can sometimes be dealt with informally. A quiet word is
often all that is required to improve an employee's conduct or
performance.
 Where formal action is needed, actions will depend on all the
circumstances of the particular case. Employers should deal with issues
promptly, fairly and consistently. Investigations should be carried out to
gather and establish all the facts of the case.
 A progressive disciplinary process is recommended when practical;
however, some circumstances justify immediate termination of
employment.
 Employees should be given the facts of the case and allowed to put their
response forward.
 Always have a witness and document, document, document!

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Documentation Required
How do you protect yourself?
Documentation.
Any actions taken against these
employees, whether it’s letting them go
or reassigning them to a new job, should
be documented extensively to show the
precise reason why the actions were
taken – just in case you need to defend
them in court.

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HR Self Audit:
 Are personnel files current?
 Are you using the most current versions of state and legal forms (tax forms, I-9,
etc.)?
 Do job descriptions exist and are they up to date? Are the ADA compliant?
 Are workplace policies in place and communicated to all employees?
 Is there an employee handbook in place and is it specific to your workplace? Is it
compliant with current employment laws?
 Are employees correctly designated as exempt or nonexempt (according to
Department of Labor standards)?
 Is there a process for employees to file complaints?
 Are required labor posters displayed in a conspicuous place?

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“At Will” Employment
At-will employment is a doctrine of American law that
defines an employment relationship in which either
party can break the relationship with no liability,
provided there was no express contract for a definite
term governing the employment relationship and that
the employer does not belong to a collective
bargaining group (i.e., has not recognized a union).
Under this legal doctrine:
“Any hiring is presumed to be “at will”; that is,
the employer is free to discharge individuals
“for good cause, or bad cause at all,” and the
employee is equally free to quit, strike, or
otherwise cease work.”

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Current Focus –
In The News

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Current Focus
Obama Administration Initiatives to Help Americans
Meet Work and Family Responsibilities
The economic stability of American families depends in part on policies
that help them balance work and care-giving obligations.
These policies include workplace flexibility and access to paid leave;
affordable, quality child care and elder care; and enforcing equal pay
laws.
“Issues like equal pay, family leave, child care and others are
not just women’s issues; they are family issues and economic
issues. Our progress in these areas is an important measure of
whether we are truly fulfilling the promise of our democracy for
all our people.”
— President Obama, on the creation of the White House
Council on Women and Girls

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Obama Administration Initiatives to Help Americans Meet
Work and Family Responsibilities
Promoting Workplace Flexibility and Access to Paid Leave
• Supporting Paid Sick Leave
• Helping States Establish Paid Leave Funds
• Building the Knowledge Base about Work-Family Policies
• Modernizing the Family and Medical Leave Act
Supporting Quality, Affordable Child Care and Elder Care
• Helping Families with Child Care Costs
• Supporting Families Who Care for Aging Relatives and Family Members with
Disabilities
Access to Equal Pay
• Enhancing Enforcement of Equal Pay Law
Current Focus

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U.S. Equal Employment Opportunity Commission Strategic
Enforcement Plan FY 2013 - 2016
EXECUTIVE SUMMARY – TARGETED ENFORCEMENT AREAS
The U.S. Equal Employment Opportunity Commission's (EEOC or
Commission) Strategic Plan for Fiscal Years 2012 - 2016 directed the
Commission to develop a Strategic Enforcement Plan (SEP) that:
(1) establishes priorities and
(2) integrates all components of EEOC's private, public, and federal sector
enforcement.
The purpose of the SEP is to focus and coordinate the EEOC's programs
to have a sustainable impact in reducing and deterring discriminatory
practices in the workplace.
Current Focus

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How Will They Do It?
EEOC
• Hundreds of additional investigators and staff attorneys being hired
• Enhanced enforcement
• In 2013, the agency obtained the largest amount of monetary recovery from
private sector and state and local government employers through its
administrative process — increasing by $6.4 million to $372.1 million
• Agency received 93,727 charges of workplace discrimination for FY 2013
(decrease of 5.7% from previous year)
DOL (Department of Labor)
• Hiring almost 700 additional investigators and staff attorneys
• Enhanced enforcement of wage laws and affirmative action compliance
Current Focus

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In The News
The U.S. Equal Employment Opportunity Commission (EEOC)
announced that it received 99,412 private sector workplace
discrimination charges during fiscal year 2012, down slightly from the
previous year. 2013 charges were down again to 93,727. However,
monetary awards are at an all time high.
For the 4th year in a row, the EEOC resolved more charges of
discrimination than it took in, despite sequestration which caused the
agency to furlough its entire workforce for 40 hours, freeze hiring and
reduce its budge for litigation, information technology, travel and
contracts for services, among other things.

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In The News
Behind the Numbers: Why are claims so high?
Amid layoffs, and worries about retaining jobs, employees
are more likely to sue. In particular, employees bitter
about being let go increasingly have turned to the courts
for redress – even if they don’t have a strong case.
The majority of charges – 95% - are still found to have no
reasonable cause. That number has stayed steady for the
past number of years.

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In The News
Retaliation claims continue to surpass other claims types.
Why? Two reasons are cited:
 They are easy to prove. Many companies have been
have been found not guilty in court but were nailed for
retaliating against the worker who filed the charge.
 They can be tacked on to bias complaints. Unlike
specific discrimination complaints, staffers can add a
retaliation claim to any bias complaint, not matter what
type of discrimination they are claiming.

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U.S. Department of Labor (DOL) Wage & Hour Division
Employee Misclassification as Independent Contractors
The misclassification of employees as something other than employees, such
as independent contractors, presents a serious problem for affected employees,
employers, and to the entire economy.
Misclassified employees are often denied access to critical benefits and
protections – such as family and medical leave, overtime, minimum wage and
unemployment insurance – to which they are entitled.
Employee misclassification also generates substantial losses to the Treasury
and the Social Security and Medicare funds, as well as to state unemployment
insurance and workers compensation funds.
Employers that misclassify their employees may not be paying the proper
overtime compensation, FICA and Unemployment Insurances taxes, or workers'
compensation premiums.
Current Focus

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In The News
The National Labor Relations Board is an
independent federal agency that protects the rights of
private sector employees to join together, with or
without a union, to improve their wages and working
conditions.
What does this have to do with
a company with non-union employees?

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In The News
Protected Concerted Activity (from the NLRB)
“The law we enforce gives employees the right to act together to
try to improve their pay and working conditions, with or without a
union. If employees are fired, suspended, or otherwise penalized
for taking part in protected group activity, the National Labor
Relations Board will fight to restore what was unlawfully taken
away. These rights were written into the original 1935 National
Labor Relations Act and have been upheld in numerous decisions
by appellate courts and by the U.S. Supreme Court.”
Is the activity concerted?
Generally, this requires two or more employees acting together to
improve wages or working conditions, but the action of a single
employee may be considered concerted if he or she involves co-
workers before acting, or acts on behalf of others.

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In The News
“Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right
to refrain from any or all such activities.”
Deerfield Beach, FL
D.R. Horton, Inc.
An employee for a major homebuilder believed he was improperly denied
overtime pay because he and other employees were misclassified as
supervisors. He wanted to join with the others to file a collective claim
with an arbitrator. But the builder said its arbitration policy, which
employees were required to sign, only allowed for individual claims. The
Board found that the policy was unlawful because it denied the
employees their right to engage in concerted activity by filing jointly.

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Key Question
What Are
Today’s Employees
Seeking
In Their Employers?

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Common Reasons for Lack of Employee
Engagement
• No Identification with the Company or Management
• No Sharing of Company Goals and Vision with
Employees
• Lack of Recognition
• Failure to Foster Participative Management (e.g. safety
teams)
• Poor Supervision on the Front Line (who is viewed as the
Company)
• Lack of leadership and technical abilities among
Management

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Inconsistent Application of Policies, Rules
 Must be administered fair and equitably
 Major offenses vs. less serious offenses degrees of punishment;
how to discipline
Lack Of And Poor Communication
 Communications (poor communications is a symptom of other
problems)
 Real solution to communications problem – just be human
Poor Working Conditions
 Unsafe or dirty working conditions
Wrong Manager, Wrong Employee
 Employers with reputation of poor supervision/management
Engagement

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Do Not Know What is Expected of Them
 No periodic & objective appraisal of performance
 Inadequate training for job
Lack of Advancement Opportunities
Wages/Benefits
 Not competitive with like jobs in other companies in the same
industry or in same geographical operating area
Engagement

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Your Role As A Leader:
Positive employee relations
 Create & Maintain A Positive Work Climate
 Give Praise & Credit
 Deliver & Receive Effective Feedback
 Listen Well
 Follow-Up
 Involve Them, Engage Them
 Encourage Use Of The Open Door Policy
 Follow Your Company’s Policies (Don’t Circumvent Them)
 Be Committed
 Always Be Available

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Assessing Your Workplace
Do You:
• Appreciate Employees’ Work?
• Keep Employees Informed?
• Help When Problems Arise?
• Offer Interesting work, Cross Training Opportunities, &
Work Rotations?
• Encourage Promotion of Most Deserving Employees?
• Demonstrate a Sense of Personal loyalty to All Employees?
• Maintain a Keen Awareness of Employees’ Working Conditions?
• Tactfully & Consistently Administer Discipline?

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Final Thoughts
There is no magic formula for good, consistent employee
relations.
It simply boils down to treating others as you, yourself,
would like to be treated.
By fostering good employee relations, deserving
employees’ trust, and enthusiastically complying with all
labor and employment laws, you can guarantee a more
productive and pleasant workforce environment (and
remain non-union in the process).

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Federal Laws
(reference material)

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Federal Laws
Laws Enforced By the Equal Employment
Opportunity Commission (EEOC)
 Title VI of the Civil Rights Act (Title IV)
 The Pregnancy Discrimination Act
 The Equal Pay Act of 1963 (EPA)
 The Age Discrimination in Employment Act of 1967 (ADEA)
 Title I of the Americans with Disabilities Act (ADA)
 ADA Amendment Act of 2008 – AKA “The ADA Restoration Act”
 Sections 102 and 103 of the Civil Acts Right of 1991
 Sections 501 and 505 of the Rehabilitation Act of 1973
 The Genetic Information Nondiscrimination Action of 2008 (GINA)
 The Lilly Ledbetter Fair Pay Act of 2009

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 Title VII of the Civil Rights Act of 1964
This law makes it illegal to discriminate against someone on the basis of race, color,
religion, national origin, or sex. The law also makes it illegal to retaliate against a
person because the person complained about discrimination, filed a charge of
discrimination, or participated in an employment discrimination investigation or
lawsuit. The law also requires that employers reasonably accommodate applicants'
and employees' sincerely held religious practices, unless doing so would impose an
undue hardship on the operation of the employer's business.
The Pregnancy Discrimination Act
This law amended Title VII to make it illegal to discriminate against a woman because
of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The
law also makes it illegal to retaliate against a person because the person complained
about discrimination, filed a charge of discrimination, or participated in an employment
discrimination investigation or lawsuit.
Federal Laws

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 The Equal Pay Act of 1963 (EPA)
This law makes it illegal to pay different wages to men and women if they perform
equal work in the same workplace. The law also makes it illegal to retaliate against a
person because the person complained about discrimination, filed a charge of
discrimination, or participated in an employment discrimination investigation or
lawsuit.
 The Age Discrimination in Employment Act of 1967
(ADEA)
This law protects people who are 40 or older from discrimination because of age.
The law also makes it illegal to retaliate against a person because the person
complained about discrimination, filed a charge of discrimination, or participated in
an employment discrimination investigation or lawsuit.
Federal Laws

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 Title I of the Americans with Disabilities Act of 1990
(ADA)
This law makes it illegal to discriminate against a qualified person with a disability in
the private sector and in state and local governments. The law also makes it illegal
to retaliate against a person because the person complained about discrimination,
filed a charge of discrimination, or participated in an employment discrimination
investigation or lawsuit. The law also requires that employers reasonably
accommodate the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee, unless doing so would
impose an undue hardship on the operation of the employer's business.
Changes effective March 15, 2011:
Businesses are required to modify their business policies and procedures when
necessary to serve customers with disabilities and take steps to communicate
effectively with customers with disabilities. The ADA requires businesses to remove
architectural barriers in existing buildings and make sure that newly built or altered
facilities are constructed to be accessible to individuals with disabilities.
Federal Laws

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 ADA Amendments Act of 2008 – aka “The ADA
Restoration Act”
“We’re all disabled now” . . . Dramatically broadened the number of individuals that are
considered disabled.
May the positive effects of mitigating measures in limiting the impact of an impairment on
performance of a major life activity be considered when determining whether someone has a
disability?
No, except for ordinary eyeglasses or contact lenses. The ADAAA and the final regulations direct
that the positive (or ameliorative) effects from an individual’s use of one or more mitigating
measures be ignored in determining if an impairment substantially limits a major life activity. In other
words, if a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that
fact cannot be used in determining if a person meets the definition of disability. Instead, the
determination of disability must focus on whether the individual would be substantially limited in
performing a major life activity without the mitigating measure. This may mean focusing on the
extent of limitations prior to use of a mitigating measure or on what would happen if the individual
ceased using a mitigating measure.
Federal Laws

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Disability discrimination also occurs when a covered employer or
other entity treats an applicant or employee less favorably because
she has a history of a disability (such as cancer that is controlled or in
remission) or because she is believed to have a physical or mental
impairment that is not transitory (lasting or expected to last six
months or less) and minor (even if she does not have such an
impairment).
The law requires an employer to provide reasonable accommodation
to an employee or job applicant with a disability, unless doing so
would cause significant difficulty or expense for the employer ("undue
hardship").
The law also protects people from discrimination based on their
relationship with a person with a disability (even if they do not
themselves have a disability). For example, it is illegal to discriminate
against an employee because her husband has a disability.
Federal Laws

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 Sections 10 and 103 of the Civil Rights Act of 1991
Among other things, this law amends Title VII and the ADA to permit jury trials and
compensatory and punitive damage awards in intentional discrimination cases.
 Sections 501 and 505 of the Rehabilitation Act of 1973
This law makes it illegal to discriminate against a qualified person with a disability in
the federal government. The law also makes it illegal to retaliate against a person
because the person complained about discrimination, filed a charge of discrimination,
or participated in an employment discrimination investigation or lawsuit. The law also
requires that employers reasonably accommodate the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant or
employee, unless doing so would impose an undue hardship on the operation of the
employer's business.
Federal Laws

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 The Genetic Information Nondiscrimination Action of
2008 (GINA)
Effective – November 21, 2009
This law makes it illegal to discriminate against employees or applicants because of
genetic information. Genetic information includes information about an individual's
genetic tests and the genetic tests of an individual's family members, as well as
information about any disease, disorder or condition of an individual's family members
(i.e. an individual's family medical history). The law also makes it illegal to retaliate
against a person because the person complained about discrimination, filed a charge
of discrimination, or participated in an employment discrimination investigation or
lawsuit.
An employer may never use genetic information to make an employment decision
because genetic information is not relevant to an individual’s current ability to work.
Federal Laws

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 Lilly Ledbetter Fair Pay Act of 2009
The Lilly Ledbetter Fair Pay Act of 2009 (LLFPA) is an Act of Congress about pay
discrimination that was signed into law by President Barack Obama on January 29,
2009.
The bill amends the Civil Rights Act of 1964 stating that the 180-day statute of
limitations for filing an equal-pay lawsuit regarding pay discrimination resets with
each new discriminatory paycheck.
The law was a direct answer to the Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007), a U.S. Supreme Court decision holding that the statute of
limitations for presenting an equal-pay lawsuit begins on the date that the employer
makes the initial discriminatory wage decision, not at the date of the most recent
paycheck, as a lower court had ruled.
Federal Laws

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Federal Laws
Laws Enforced By the Department of Labor
 Consumer Credit Protection Act (CCPA)
 The Employee Polygraph Protection Act (EPPA)
 Employee Retirement Income Security Act (ERISA)
 The Fair Labor Standards Act (FLSA)
 The Fair Labor Standards Act (FLSA)/Child Labor
 The Family and Medical Leave Act (FMLA)
 The Immigration and Nationality Act (INA)
 The Occupational Safety and Health (OSH) Act
 Uniformed Services Employment and Reemployment Rights Act
(USERRA)
 Whistleblower Protection Provisions
 Worker Adjustment and Retraining Notification Act (WARN)

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Consumer Credit Protection Act (CCPA)
Title III of the Consumer Credit Protection Act (CCPA) is administered
by the Wage and Hour Division (WHD). The CCPA protects employees
from discharge by their employers because their wages have been
garnished for any one debt, and it limits the amount of an employee's
earnings that may be garnished in any one week. Title III applies to all
employers and individuals who receive earnings for personal services
(including wages, salaries, commissions, bonuses, and periodic
payments from a pension or retirement program, but ordinarily does not
include tips).
Wage garnishment occurs when an employer is required to withhold
the earnings of an individual for the payment of a debt in accordance
with a court order or other legal or equitable procedure (e.g., Internal
Revenue Service (IRS) or state tax collection).

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Employee Polygraph Protection Act (EPPA)
The Employee Polygraph Protection Act of 1988 (EPPA) generally
prevents employers from using lie detector tests, either for pre-
employment screening or during the course of employment, with
certain exemptions. Employers generally may not require or
request any employee or job applicant to take a lie detector test,
or discharge, discipline, or discriminate against an employee or
job applicant for refusing to take a test or for exercising other
rights under the Act. In addition, employers are required to display
the EPPA poster in the workplace for their employees.
Employers may not discharge, discipline, discriminate against, deny
employment or promotion, or threaten to take any such action against
an employee or prospective employee for refusal to take a test, on the
basis of the results of a test, for filing a complaint, for testifying in any
proceeding or for exercising any rights afforded by the Act.

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Employee Polygraph Protection Act (EPPA)
Exceptions:
The Act also includes limited exemptions where polygraph tests (but no
other lie detector tests) may be administered in the private sector, subject
to certain restrictions:
 To employees who are reasonably suspected of involvement in a
workplace incident that results in economic loss to the employer and
who had access to the property that is the subject of an investigation;
and
 To prospective employees of armored car, security alarm, and security
guard firms who protect facilities, materials or operations affecting
health or safety, national security, or currency and other like
instruments; and
 To prospective employees of pharmaceutical and other firms
authorized to manufacture, distribute, or dispense controlled
substances who will have direct access to such controlled substances,
as well as current employee who had access to persons or property
that are the subject of an ongoing investigation.

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Employee Retirement Income Security Act (ERISA)
The Employee Retirement Income Security Act of 1974 (ERISA) is a
federal law that sets minimum standards for most voluntarily established
pension and health plans in private industry to provide protection for
individuals in these plans.
ERISA requires plans to provide participants with plan information
including important information about plan features and funding; sets
minimum standards for participation, vesting, benefit accrual and funding;
provides fiduciary responsibilities for those who manage and control plan
assets; requires plans to establish a grievance and appeals process for
participants to get benefits from their plans; gives participants the right to
sue for benefits and breaches of fiduciary duty; and, if a defined benefit
plan is terminated, guarantees payment of certain benefits through a
federally chartered corporation, known as the Pension Benefit Guaranty
Corporation (PBGC).
In general, ERISA does not cover retirement plans established or
maintained by governmental entities, churches for their employees, or
plans which are maintained solely to comply with applicable workers
compensation, unemployment or disability laws.

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Fair Labor Standards Act (FLSA)
The FLSA establishes minimum wage, overtime pay, recordkeeping, and
youth employment standards affecting employees in the private sector
and in Federal, State, and local governments. Covered nonexempt
workers are entitled to a minimum wage of not less than $7.25 per hour
effective July 24, 2009. Overtime pay at a rate not less than one and one-
half times the regular rate of pay is required after 40 hours of work in a
workweek.
Some employees are exempt from the overtime pay provisions, some
from both the minimum wage and overtime pay provisions and some from
the child labor provisions of the Fair Labor Standards Act (FLSA).
Exemptions are narrowly construed against the employer asserting them.
Consequently, employers and employees should always closely check the
exact terms and conditions of an exemption in light of the employee's
actual duties before assuming that the exemption might apply to the
employee. The ultimate burden of supporting the actual application of an
exemption rests on the employer.

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Fair Labor Standards Act (FLSA)
Executive, Administrative, Professional, and
Outside Sales Employees: (as defined in
Department of Labor regulations) and who
are paid on a salary basis are exempt from
both the minimum wage and overtime
provisions of the FLSA.
To qualify for exemption, employees
generally must meet certain tests regarding
their job duties and be paid on a salary
basis at not less than $455 per week. Job
titles do not determine exempt status. In
order for an exemption to apply, an
employee’s specific job duties and salary
must meet all the requirements of the
Department’s regulations.
This is sometimes
called the “White Collar
Exemption”

59
Family Medical Leave Act (FMLA)
The FMLA entitles eligible employees of covered employers to take
unpaid, job-protected leave for specified family and medical reasons with
continuation of group health insurance coverage under the same terms
and conditions as if the employee had not taken leave. Eligible employees
are entitled to:
 Twelve workweeks of leave in a 12-month period for:
 the birth of a child and to care for the newborn child within one year
of birth;
 the placement with the employee of a child for adoption or foster
care and to care for the newly placed child within one year of
placement;
 to care for the employee’s spouse, child, or parent who has a serious
health condition;
 a serious health condition that makes the employee unable to
perform the essential functions of his or her job;

60
(continued)
Recently Added:
 Twelve workweeks of leave in a 12-month period for:
 any qualifying exigency arising out of the fact that the employee’s
spouse, son, daughter, or parent is a covered military member on
“covered active duty;” or
 Twenty-six workweeks of leave during a single 12-month period to care
for a covered servicemember with a serious injury or illness who is the
spouse, son, daughter, parent, or next of kin to the employee (military
caregiver leave).

61
(continued)
The DOL Issued Guidance in June 2010 to clarify the definition of “son”
and “daughter” under the FMLA as it applies to an employee taking FMLA
– protected leave for the birth or placement of a child, to care for a
newborn or newly placed child, or to care for a child with a serious health
condition. The regulations define a son or daughter as a biological or
adopted child, foster child, a stepchild, a legal ward, or a child of a person
standing in loco parentis.
The DOL did not modify the FMLA or its regulations, but merely clarified
this definition. Employers must ensure that their FMLA policy is applied to
include all individuals who may qualify under the DOL’s guidance,
including domestic partners, grandparents or others without a legal
relationship to a child who needs care as long as that employee has stood
in loco parentis.

62
The Immigration and Nationality Act (INA)
The Immigration and Nationality Act (INA) sets forth the conditions for the
temporary and permanent employment of aliens in the United States and
includes provisions that address employment eligibility, employment
verification and nondiscrimination. These provisions apply to all
employers.
 The Immigration and Nationality Act (INA) is administered by the Office
of Foreign Labor Certification (OFLC) of the Employment and Training
Administration (ETA).
 Under the INA, employers may hire only persons who may legally work
in the United States (i.e., citizens and nationals of the U.S.) and aliens
authorized to work in the U.S. The employer must verify the identity and
employment eligibility of anyone to be hired, which includes completing
the Employment Eligibility Verification Form (I-9).

63
The Occupational Safety and Health (OSH) Act
The Occupational Safety and Health (OSH) Act was enacted to "assure
safe and healthful working conditions for working men and women." The
OSH Act created the Occupational Safety and Health Administration
(OSHA) at the federal level and provided that states could run their own
safety and health programs as long as those programs were at least as
effective as the federal program. Enforcement and administration of the
OSH Act in states under federal jurisdiction is handled primarily by OSHA.
The Act assigns OSHA two regulatory functions: setting standards and
conducting inspections to ensure that employers are providing safe and
healthful workplaces. OSHA standards may require that employers adopt
certain practices, means, methods, or processes reasonably necessary
and appropriate to protect workers on the job. Employers must become
familiar with the standards applicable to their establishments and eliminate
hazards.

64
OSHA is currently shifting from helping
employers comply with its rules to enforcing
those rules with stiffer penalties – as
evidenced by its budget requests and
pending legislation before Congress – a
former OSHA leader suggests that employers
prepare for inspectors to come knocking.
Few employers know their rights during
an OSHA inspection.
For example, OSHA inspectors must issue
citations within six months of beginning
inspection. Employers can ask the OSHA
Inspector for a warrant before allowing them
on company property. However, this is not
recommended. If employers do this for
OSHA, they should do it for all other
government agencies.

65
OSHA has the right to inspect workplaces and arrive unannounced.
Times at which OSHA must inspect a workplace are when workers are in
imminent danger; when there has been a fatality or hospitalization of
three or more workers form the same incident; there’s a complaint filed;
and as a part of national emphasis programs, in which OSHA singles out
an industry to examine. Companies in that industry are chosen randomly
for inspection.

66
Whistleblower Protections
The Occupational Safety and Health Act (OSH Act) and a number of
other laws protect workers against retaliation for complaining to their
employers, unions, the Occupational Safety and Health
Administration (OSHA), or other government agencies about unsafe
or unhealthful conditions in the workplace, environmental problems,
certain public safety hazards, and certain violations of federal
provisions concerning securities fraud, as well as for engaging in
other related protected activities.
Whistleblowers may not be transferred, denied a raise, have their
hours reduced, or be fired or punished in any other way because
they have exercised any right afforded to them under one of the laws
that protect whistleblowers.

67
Whistleblower Protections
The protected activities typically include:
 Initiating a proceeding under, or for the enforcement of, any of these
statutes, or causing such a proceeding to be initiated;
 Testifying in any such proceeding;
 Assisting or participating in any such proceeding or in any other action
to carry out the purposes of these statutes; or
 Complaining about a violation.
 Many of the statutes specifically protect an employee's internal
complaints to his or her employer, and it is the Department of Labor's
position, as set forth in regulations, that employees who express safety
or quality assurance concerns internally to their employers are
protected under all of the whistleblower statutes administered by
OSHA.

68
Questions & Feedback
3810 North Elm Street; Suite 207 Greensboro, NC 27455
336.288.3939
www.hrdstrategies.com

Human Resources & Employment Law 2015 - HRD Strategies - Michael Lovett, Nina Lovett

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