Doing Business in DC | Finding Talent and Labor Laws in DC | Recent Developments in Labor and Employment Laws


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Washington, DC Economic Partnership’s Doing Business in DC program on Recent Developments in Labor and Employment Laws featuring Grace Lee from Venable, LLP.

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Doing Business in DC | Finding Talent and Labor Laws in DC | Recent Developments in Labor and Employment Laws

  1. 1. Finding Talent and Labor Laws March 7, 2012 Presented by Grace H. Lee, Esq.1
  2. 2. Hiring New Employees  Anti-Discrimination Laws: Federal and state laws prohibit hiring procedures which discriminate on the basis of protected characteristics  Applies to discrimination in: hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of various protected characteristics.2
  3. 3. Protected Categories Federal: D.C. Adds:  Sex  Sexual Orientation  Race  Marital Status  Age  Matriculation  Religion  Family Responsibilities  National Origin  Familial Status  Gender Identity  Color  Personal Appearance  Disability  Political Affiliation  Veterans Status  Genetic Information  Pregnancy  Other Categories3
  4. 4. Hiring New Employees  Hiring process – Consistency is key (application, interview, background check, etc).  Pre-Employment Inquiries – Interviewing Do‟s and Donts (illegal questions) – Testing (ensure consistency)  ADAAA – Respond to request for reasonable accommodation  Background Checks (Credit & Criminal) – Can be done (and, in some cases, it is mandatory) – Must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws – Must notify the applicant – Offense must be job related to be used as basis of employment decision4
  5. 5. Hiring: The At-Will Doctrine  The “at-will” employment relationship means you may terminate for any reason or no reason at any time, with or without notice.  Caveat: You cannot terminate an at-will employee for an illegal reason (i.e. discrimination, retaliation) or in a manner contrary to an agreement.  Offer letter v. employment agreement – Offer Letter • Important if you have weak or non-existent employment policies or employee manual. • Can be used to clarify issues raised during the recruitment process and set expectations from both parties. • Typically not for a term and should contain affirmation of at-will status. – Employment Contract • Typically at odds with the at-will concept, and it should be drafted as such. • Used as a recruitment and retention tool. • Used to protect highly sensitive and proprietary information through the use of restrictive covenants. • Normally recommended only for executives, professionals or confidential (i.e., IT) positions.  Ensure consistency with employee handbook5
  6. 6. Hiring: Immigration Compliance  Form I-9 – Verify that employees are legally authorized to work in the U.S. • Does not apply to volunteers • Does not apply to independent contractors – Refrain from discrimination against individuals based on national origin, race, or citizenship – Must complete Form I-9 within three business days of the first day of work for pay – Begin I-9 process after you offer the job and the employee accepts – Social security number is voluntary – Do not ask request specific documents – let the employee pick from list of options on the form – Maintain for three years after the date of hire, OR one year after the date of termination, whichever is later – Keep I-9 separate from other personnel file documents6
  7. 7. Wage & Hour and Leave Issues  The Law: – The Family & Medical Leave Act of 1993 (FMLA) – The Fair Labor Standards Act  Exempt/Non-Exempt Status  Independent Contractors  Alternative Work Arrangements (e.g. flextime) – Consistency is key. Employees must have equal access to work arrangements, to avoid discrimination claims • Create policies (e.g. Telecommuting Policy and Agreement)7
  8. 8. Family and Medical Leave Act  Federal law and District of Columbia  Updated regulations for Federal FMLA and DC FMLA  Federal FMLA provides up to 12 weeks of family and medical leave per 12 month period  Federal FMLA provides up to 26 weeks of military family leave in a 12 month period  DC FMLA provides up to 16 weeks of family leave AND 16 weeks of medical leave in a 24-month period  Federal and D.C. FMLA run concurrently, if applicable  Should comply with the law that provides employee with greater benefit8
  9. 9. FMLA Coverage  Federal – Must be employed by an employer with 50 or more employees in a 75 mile radius of the place the employee works – Employee must have worked at least 1,250 hours during the previous 12 months prior to the request for leave  DC – Employer must have at least 20 employees – Employee must have worked at least 1,000 hours in the 12-month period immediately preceding the request for leave – Employment must be without a break in service9
  10. 10. FMLA Leave Benefits  Job Security – Must hold position – Employee entitled to return to same or equivalent job – May fill position temporarily until employee returns – Can eliminate job if would have done so even if employee not out on leave  Unpaid leave  Benefits – Employer must continue to receive benefits during the leave – Health insurance must continue as if the employee was still working  No loss of benefit or seniority accrued prior to the start of the employee‟s leave10
  11. 11. Federal and DC FMLA Reasons for Leave  Birth of a child or to care for a newborn child;  Placement of a child with the employee for adoption or foster care, or placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility;  Employee is needed to care for a “family member” with a serious health condition;  Employee‟s own „serious health condition‟ that makes the employee unable to perform the functions of the job11
  12. 12. Military Leave Entitlement  Under Federal Military FMLA an eligible employee may take leave for the following reasons: – To address certain qualifying exigencies arising out of the fact that the spouse, or a son, daughter or parent of the employee is on „covered active duty‟ (or has been notified of an impending call or order to covered active duty) in the Armed Forces • Up to 12 workweeks of leave in a 12-month period (rolling back) – To address military caregiver leave to care for a son, daughter, parent, or next of kin who is an injured or ill servicemember or veteran • Up to 26 workweeks of leave in a 12-month period (rolling forward)12
  13. 13. DC Accrued Sick and Safe Leave Act  ASSLA provides paid sick leave for absences due to the employee‟s or family members medical condition, domestic violence or sexual abuse  Up to seven days of paid leave per year  Reasons for leave – Absence resulting from physical or mental illness, injury, or medical condition of the employee – Absence resulting from obtaining professional medical diagnosis or care, preventative medical care (must make reasonable efforts to schedule leave so it does not unduly disrupt school‟s operations) – Absence for purpose for caring for a child, parents, spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care described above – Absence if the employee or employee‟s family member is a victim of stalking, domestic violence, or sexual abuse13
  14. 14. Wage and Hour  Federal law - Fair Labor Standards Act (FLSA)  DC same as Federal for exempt v. nonexempt  Two Classifications – Overtime eligible (non-exempt) • Entitled to overtime pay (one and half times the regular rate of pay) for hours worked over forty in a workweek • Paid hourly • Salaried employees can be overtime eligible – Non-Overtime eligible (exempt) • Paid the same amount regardless of number of hours worked • Must meet certain requirements to be exempt from overtime pay14
  15. 15. Employee or Independent Contractor  Legal Tests (no more 20-factor test) – Integral part of business – Permanency of relationship – Who supplies facilities and equipment – Opportunities for profit and loss – Provides this work for other employers – Managed by company employees or independent  Independent Contractor Agreement15
  16. 16. Employment Separation  Separation and Release Agreements (Severance) – Necessary in some circumstances • Troublesome termination • Protected category (i.e. race, disability) • High salary • High profile  Confer with counsel to ensure that the agreements properly protect the company and are legally enforceable.16
  17. 17. Employment Separation  Separation and Release Agreements – Typical provisions: • Date of termination - mutual parting, with non- disparagement • Severance with specific terms (withhold taxes) • General Release (for all entities), with promise not to sue – OWBPA language, consult a lawyer, 21 days to consider, 7 days to revoke ADEA release • Survival of Restrictive Covenants17
  18. 18. Employment Separation  Exit Interviews  Post-Employment Benefits Entitlement  The Return of Property & Confidential Information – Company Confidentiality Policy18
  19. 19. Questions?19