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

1. Finding Talent and Labor Laws
March 7, 2012
Presented by Grace H. Lee, Esq.
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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.
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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 Categories
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4. Hiring New Employees
 Hiring process
– Consistency is key (application, interview, background
check, etc).
 Pre-Employment Inquiries
– Interviewing Do‟s and Don'ts (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 decision
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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 handbook
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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 documents
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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)
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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
benefit
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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 service
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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 leave
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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
job
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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)
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13. DC Accrued Sick and Safe Leave Act
 ASSLA provides paid sick leave for absences due to the employee‟s
or family member's 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 abuse
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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 pay
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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 Agreement
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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.
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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 Covenants
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18. Employment Separation
 Exit Interviews
 Post-Employment Benefits Entitlement
 The Return of Property & Confidential Information
– Company Confidentiality Policy
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19. Questions?
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