Employment and Labor Law

What does the Civil Rights Act of 1964 (Title VII) govern?

Title VII prohibits discrimination in employment including public accommodations, governmental services and education. An employer cannot fail or refuse to hire or refuse to promote, fire anybody or discriminate with respect to compensation, terms, conditions and privileges of employment based on race, color, sex, religion or national origin. An employer cannot limit, segregate or classify employees or applicants in any way that would deprive or tend to deprive employment opportunities or that adversely affects the status of an employee because of race, color, sex, religion or national origin.

Who does the Civil Rights Act of 1964 cover?

Employers with 15 or more employees, affecting commerce, and whose employees have been employed for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, are covered by Title VII. Title VII applies to all employers, potential employers, unions, employment agencies and joint labor-management training committees. Title VII, through subsequent amendments, applies to state and local governments, governmental agencies, and political subdivisions. Religious organizations are exempt when based upon religion.

What administrative body may impose remedies for a violation of the Civil Rights Act of 1964?

The Equal Employment Opportunity Commission (EEOC) administers and enforces Title VII. The EEOC has the power to investigate, litigate and resolve unfair employment practices. The EEOC make take action in a federal district court for appropriate relief and preliminary relief pending disposition of a charge. The EEOC may also issue a notice of right to sue to the charging party following administrative proceedings. Suit may be filed in state or federal court. In Idaho, the administrative complaint under state and federal law is filed with the Idaho Human Rights Commission.

What does the Americans with Disabilities Act ( ADA) govern?

The Americans with Disabilities Act (ADA) prohibits discrimination against qualified disabled individuals in all employment practices including job application procedures, hiring, promotion and advancement, discharge compensation, training and other terms, conditions and privileges of employment. The ADA prohibits employment discrimination on the basis of a disability in all programs, activities and services provided for or operated by state and local governments.

Who is covered by the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) applies to disabled individuals in employment. The ADA applies to private employers, state and local governments, employment agencies and labor unions. The Act broadly defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The definition also includes anyone who has a record of such an impairment or is regarded as having such an impairment.

What administrative body may impose remedies for a violation of the Americans with Disabilities Act?

Individuals seeking to bring a lawsuit under the ADA must first file a charge with the Idaho Human Rights Commission. Remedies under the ADA include compensation and punitive damages in amounts limited by the size of the employer’s work force; these may only be recovered through state or federal courts when a suit is filed following the agency proceedings.

What does the federal Family and Medical Leave Act (FMLA) govern?

The Family and Medical Leave Act (FMLA) allows certain employees up to twelve weeks of unpaid, job-protected leave per year. The FMLA calls for notification responsibilities. It also requires that group health benefits be maintained during the leave. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women. A number of states have also enacted family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by FMLA. In those situations where an employee is covered by both Federal and State FMLA laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law.

Who is covered by the federal Family and Medical Leave Act?

Only employers that carry 50 or more employees at a work site, or within 75 miles, are covered by the FMLA. However, for an employee to be eligible, he or she must have worked for the employer for at least one year and must have worked at least 1,250 hours (an average of 25 hours a week) during the previous 12-month period. An employer may deny leave to any key employee who receives a salary in the top 10% of the work force and whose leave-taking would cause economic harm to the employer.

What administrative body may impose remedies for a violation of the federal Family and Medical Leave Act?

The United States Secretary of Labor, through the Wage and Hour Division of the Employment Standards Administration, has administrative jurisdiction. The Department of Labor will review the merits of the complaint and attempt to negotiate and resolve the complaint administratively with the employer. If the Secretary of Labor is convinced that a violation has occurred, and in the event attempts to resolve the matter with the employer are not successful, the Secretary of Labor may file a lawsuit on behalf of the employee. Complaints are to be filed two years from the date of the last action of the alleged violation. Three years if it is a willful violation. Complaints may be filed by an employee or by any other person on behalf of an employee. There is no federal requirement that the Secretary of State be notified before filing a lawsuit in the event attempts to resolve the matter with the employer are not successful.

What does the Age Discrimination in Employment Act (ADEA) govern?

It is unlawful for an employer, employment agency or labor union to discriminate in employment against anyone because of his or her age. This includes refusing to hire an individual or firing an employee. It also includes an individual’s compensation, terms, conditions or privileges of employment and all employee benefits.

What administrative body may impose remedies for a violation of the Age Discrimination in Employment Act?

Because Idaho has an age anti-discrimination agency (the Idaho Human Rights Commission), complaints are to be sent to the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged unlawful practice or within 30 days after receipt of notice that the state proceedings have been terminated; whichever is earlier. Any individual civil action may be filed 60 days after a charge has been filed with EEOC or state deferral agency. There is a statute of limitation on lawsuits of 2 years. Three years for willful violations.

What does the Fair Labor Standards Act govern?

The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, equal pay, record keeping requirements and child labor standards. As of December 2000, workers covered by the FLSA are entitled to the minimum wage of (click here for the latest amount) per hour and overtime pay at time and one-half rate of pay after 40 hours of work in a workweek. States can set minimum wages higher for their state, but not lower. Various minimum wage exceptions apply under specific circumstances.

Who is covered by the Fair Labor Standards Act?

In order for the FLSA to apply there must be an employment relationship between an employer and an employee. An employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. There are exemptions. 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. Exemptions are narrowly construed against the employer asserting them. Therefore, 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. This type of issue presents a high risk for an employer and consultation with an attorney knowledgeable on the FLSA is recommended.

What administrative body may impose remedies for a violation of the Fair Labor Standards Act?

With the exception of certain federal employees, the administration and enforcement of the FLSA is the responsibility of the Department of Labor’s Wage and Hour Division of the Employment Standards Administration (ESA). The FLSA can be enforced by private employee lawsuits or by actions taken by the Department of Labor. The Department of Labor can also seek injunctive relief. Should an employer lose a case in court, employees generally collect back pay and liquidated damages in the amount of back pay (double damages). Attorney fees are also recoverable. Ignorance of the law is no defense for employers. There is a two-year statute of limitations. There is a three-year limit if a willful violation.

What does the Labor Management Relations Act (LMRA) govern?

Four major historical statutes make up what is now known as the Labor Management Relations Act. The cornerstone of the LMRA provides that protected employees shall have the right to form and join unions and bargain collectively. Such employees can engage in concerted activities for their mutual aid or protection. Employees shall also have the right to refrain from unions unless already represented by a union and subject to a union shop provision. The LMRA further provides which actions or inactions will constitute an unfair labor practice by employer and union. The LMRA establishes the process of elections (conducted by the National Labor Relations Board, NLRB), to determine the desires of the employees for representation, and outlines the NLRB’s powers.

Who is covered by the Labor Management Relations Act?

Generally, the LMRA covers the private sector. Government agencies are excluded. Two exceptions are national banks and mail contractors. Because of this, states have established various labor laws for the public sector. The LMRA does not apply to independent contractors, because they are not considered employees. The LMRA also excludes supervisors and managerial employees under the definitions of the Act, as well as agricultural employees.

What administrative body may impose remedies for a violation of the Labor Management Relations Act?

Because the LMRA was enacted to maintain industrial peace for the benefit of the public, enforcement is geared to be more remedial in nature than punitive. The NLRB has the jurisdiction, but must enforce its decisions and injunctions through the federal courts. Courts have given great discretion and latitude to the NLRB in its interpretations of the Act.

What does the Rehabilitation Act of 1973 govern?

The stated purpose of the Rehabilitation Act is to endorse economic independence of handicapped persons. This is done through the employment of people with disabilities and the inclusion of people with disabilities in American life. The Act thus creates the practical mechanisms and funding authority necessary to achieve these goals. The Rehabilitation Act provides that recipients of federal financial assistance are prohibited from discriminating against otherwise qualified handicapped persons solely by reason of their handicap.

Who does the Rehabilitation Act of 1973 cover?

The Rehabilitation Act covers handicapped persons in the federal government, federal government programs or an employer who contracts or subcontracts with the federal government. A handicapped individual is defined as any individual who has a physical or mental impairment that substantially limits one or more major life activities and either has a record of such impairment or is regarded as having such impairment.

What administrative body can impose remedies for a violation of the Rehabilitation Act of 1973?

The Department of Labor has jurisdiction of the Rehabilitation Act. The employee can recover compensatory and punitive damages in cases of intentional discrimination. Punitive damages, however, may only be recovered against private sector employers who acted with malice or reckless indifference to the victim’s rights. Damages are limited to $50,000 for employers 15-100, $100,000 from 101-200, $200,000 for 201-500 and $300,000 for 501 or more.

What does the Workers Adjustment & Retraining Act (WARN, a.k.a. Plant closure law) govern?

Known as the Plant closure law, WARN requires an employer of 100 or more to give affected employees at least a 60 day written notice prior to any plant closing or mass layoff. This is designed to provide employees and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training that will allow an employee to successfully compete in the job market. WARN further provides for notice to state dislocated worker units so that dislocated worker assistance can be promptly provided. Also, notice is to be sent to local elected officials, so they may prepare a community response. If represented by a union, notice must be given to the Union rather than to the employees.

What administrative body may impose remedies for a violation of the Workers Adjustment and Retraining Act?

An employer can be penalized for failure to give proper notices. These amounts are set for $500.00 per day for each violation, plus paying the affected employee the wages and benefits they should have received. This can be reduced in certain limited circumstances. An action to recover these amounts may be initiated in any federal district court in which a violation is alleged to have occurred or in any federal district court in which the employer transacts business. The Court also has the discretion to award the prevailing party reasonable attorney fees.

Under the Workers Adjustment and Retraining Act (WARN), what must be in the notices to the
Dislocated Worker?

All notices submitted to the State Dislocated Worker Unit and the chief official of the local government must be in writing and include the following:

• The name and address of the employment site where the plant closing or mass layoff will occur.
• The name and phone number of a company official to contact for further information
• A statement if the action is expected to be permanent or temporary and, if the entire plant is affected.

Can WARN notification be shortened or waived?

Yes, the notification under WARN can be shortened when the employer is actively seeking business or capital which would have enabled the employer to avoid or postpone the shutdown and the employer reasonably and in good faith believes that giving the notice required would have precluded them from getting that capital or business to avoid the shutdown. The notification period can be waived if caused by circumstances that were not reasonably foreseeable as of the time notice was required. Such an employer must give as much notice as is practicable and explain the basis in the notification letter. No notice is required if the closing is due to a natural disaster.

Are there requirements for the delivery of the notice under the Workers Adjustment & Retraining Act?

Notice should be given by any reasonable method designed to ensure notice of at least 60 days. Such notice includes first class mail or personal delivery with optional signed receipt. Insertion of notice into pay envelopes is another viable option. A ticketed pre-printed notice regularly included in a pay check or pay envelope does not meet the requirement.

What does the Employee Polygraph Protection Act of 1988 govern?

The Federal Employee Polygraph Protection Act (EPPA) establishes guidelines for polygraph testing and imposes restrictions on most private employers. In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. Nevertheless, the employer cannot require current employees to take and examination, and if an employee refuses a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal to submit to the examination.

Do the requirements under the Workers Adjustment & Retraining Act apply to an employer’s subsidiaries?

WARN’s application to an employer’s subsidiary depends on the degree of the subsidiary’s independence from the parent employer. One must look at such factors as common ownership and common directors and officers, the exercise and control of the subsidiary, dependency of operations and the unity of personnel policies originating from a common source.

Who does the Employee Polygraph Protection Act of 1988 cover?

EPPA covers commercial businesses. Exceptions are businesses whose primary purpose consists of providing armored car personnel; and those involved in the design, or security personnel, in facilities that have a significant impact on the health or safety of any state. Also exempt are companies which manufacturer, distribute or dispense controlled substances. Local, state and federal governmental agencies (such as police departments) are not affected by the federal law, nor are public agencies, such as a school system or correctional institution. However, some states have laws that offer greater protections with certain classes that may include governmental agencies.

What administrative body may impose remedies for a violation of the Employee Polygraph Protection
Act of 1988?

Under the EPPA, an individual has the right to take action against a violating employer by filing with the Secretary of Labor. The examinee may recover such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, payment of lost wages and benefits, and reasonable costs, including attorney’s fees. Civil penalties may be assessed for not more than $10,000. The U.S. District Court has jurisdiction to issue restraining orders and injunctions. An examinee may bring a private civil action in any Federal or State court of competent jurisdiction. No action may be commenced more than 3 years after the date of the alleged violation. The court has the discretion to allow the prevailing party (other than the United States) reasonable costs, including attorney’s fees.

What does the Employee Retirement Income Security Act (ERISA) govern?

ERISA was passed to protect the interest of participants in employee benefit plans and their beneficiaries through disclosure and reporting requirements, and the establishment of certain fiduciary standards of conduct, responsibility, and obligations.

Who is covered by the Employee Retirement Income Security Act?

Any employee benefit plan established or maintained by any employer, employee organization or organization representing employees engaged in commerce or in any industry or activity affecting commerce is covered by ERISA. ERISA does not apply to government plans or tax-exempt church plans as defined by the Act. Also exempt are plans maintained solely for the purpose of complying with workers compensation, unemployment or disability insurance laws or those maintained outside of the U.S. primarily for the benefit of persons substantially all of whom are nonresident aliens. If a plan is an excess benefit, providing benefits or contributions in excess of those allowable for tax qualified plans, it is exempt from ERISA.

What administrative body may impose remedies for a violation of the Employee Retirement Income Security Act?

ERISA has designated the Secretary of Labor broad powers to investigate and determine violations and impose remedies. The Secretary of Labor, plan participants, beneficiaries or fiduciaries, can bring ERISA actions to U.S. District Courts. Criminal prosecutions may be brought against persons who willfully violate the Act.