Human Resources Employment Law

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Title VII of the 1964 Civil Rights Act

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Banned most discriminatory hiring practices

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Equal Employment Opportunity (EEO)

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Individuals covered under EEO laws are protected from illegal discrimination based on RACE, AGE, GENDER, individuals with DISABILITIES, MILITARY EXPERIENCE or RELIGION

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Main purpose of EEO laws

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To ensure that everyone has an equal opportunity of getting a job or being promoted at work

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Affirmative Action

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Requires the employer to make an extra effort to hire and promote people who belong to a protected group

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Equal Employment Opportunity Commission (EEOC)

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Established through the 1964 Civil Rights Act, Title VII; Today, it carries the major enforcement authority for the CRA of 1964, CRA of 1991, Equal Pay Act of 1963, Pregnancy Discrimination Act of 1978, American with Disabilities Act and Vocational Rehabilitation Act.

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Civil Rights Act of 1964

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Prohibits discrimination on the basis of race, color, religion, national origin, or sex

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Civil Rights Act of 1991

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Reaffirms and tightens prohibitions of discrimination. Permits individuals to sue for punitive damages in cases of intentional discrimination and shifts the burden of proof to the employer

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Equal Pay Act of 1963

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Prohibits pay differences based on sex for equal work

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Pregnancy Discrimination Act of 1978

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Prohibits discrimination or dismissal of women because of pregnancy alone, and protects job security during maternity leaves

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Americans with Disabilities Act

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Prohibits discrimination against individuals with physical or mental disabilities or the chronically ill, and requires that "reasonable accommodations" be provided for the disabled

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Vocational Rehabilitation Act

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Prohibits discrimination on the basis of physical or mental disabilities and requires that employees be informed about affirmative action plans

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Compliance with the provisions of Title VII

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Required from all private employers of 15 or more persons, all educational institutions, state and local governments, public and private employment agencies, labor unions with 15 or more members, and joint (labor-management) committees for apprenticeship and training

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Sexual Harassment

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Unwelcome sexual advances for sexual favors, and other verbal or physical conduct of a sexual nature; May include sexually suggestive remarks, unwanted touching, sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature

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Harris v. Forklift Systems (1993 Supreme Court Case)

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Widened the test for sexual harassment under the civil rights law to whether or not comments or behavior in a work environment "would be reasonably perceived, or is perceived as hostile or abusive."

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What employees must demonstrate to prove they were sexually harassed

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Simply that they are working in a hostile or abusive environment; A result of a 1993 Supreme Court ruling

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Oncale v. Sundowner Offshore Services, Inc. (1998 Supreme Court Case)

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Broadened the definition of sexual harassment to include same-sex harassment as well as harassment of males by female coworkers

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Civil Rights Act of 1991 (Sexual Harassment)

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Permits victims of sexual harassment to have jury trials and to collect compensatory damages in cases where the employer acted with "malice or reckless indifference" to the individual's rights

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Steps Employers Can Take to Help Minimize Liability for Sexual Harassment Suits

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1) Offer a sexual harassment policy statement

2) Provide communication and training programs for supervisors and managers

3) Conduct fair, impartial investigations and base actions on objectively gathered facts

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Fair Labor Standards Act (FLSA)

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Federal law which establishes minimum wage, overtime pay eligibility, record-keeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state and local governments

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Whistleblower Protection Act (1989)

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Federal law that protects federal whistleblowers who work for the government and report agency misconduct

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National Labor Relations Act (1935)

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Requires employers to recognize a union chosen by the majority of the employees and to establish procedures governing collective bargaining; Also known as the Wagner Act of 1935

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Age Discrimination in Employment Act (1967, amended in 1978 and 1986)

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Prohibits age discrimination against employees between 40 and 65 years of age and restricts mandatory retirement

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Occupational Safety and Health Act (1970)

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Establishes mandatory safety and health standards in organizations

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Vietnam-Era Veteran's Readjustment Assistance Act (1974)

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Prohibits discrimination against disable veterans and Vietnam-era veterans

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Mandatory Retirement Act (1978)

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Prohibits the forced retirement of most employees before the age of 70

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Immigration Reform and Control Act (1986)

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Prohibits employers from knowingly hiring illegal aliens and prohibits employment on the basis of national origin or citizenship

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Worker Adjustment and Retraining Notification Act (1988)

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Requires employers to provide 60 days' notice before a facility closing or mass layoff

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Employee Polygraph Protection Act (1988)

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Limits an employer's ability to use lie detector test

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Family and Medical Leave Act (1993)

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Permits employees in organizations with 50 or more workers to take up to 12 weeks of unpaid leave for family or medical reasons for each year

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At-will employment

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A type of employment relationship in which there is no contractual agreement and either party may end the employment relationship at any time, for any reason or for no reason at all, without incurring a penalty

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Back pay

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A type of damages award in an employment lawsuit that represents the amount of money the employee would have earned if the employee was not fired or denied a promotion illegally

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Cafeteria plan

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A type of employment benefits plan in which the employee selects benefits from a "menu", up to a specified dollar amount

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Consolidated Omnibus Budget Reconciliation Act ("COBRA")

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A federal law that requires employers to allow employees to continue their health insurance coverage after termination, in the same insurance group, at the same rate, and providing the same benefits

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Comparable worth

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A legal concept under which people who work similar jobs of similar worth to the employer must be paid the same regardless of gender

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Constructive discharge

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A type of termination of the employment relationship in which the employee quits, but the employer is liable as if a wrongful termination occurred, because the employee wash forced to resign due to intolerable working conditions

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Employee Assistance Program ("EAP")

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A workplace program provided by the employer to assist employees in recovering from drug and alcohol abuse, emotional problems, job stress, marital discord, or workplace conflict

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Employee Stock Ownership Plan ("ESOP")

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An employer-provided benefit that allows employees to purchase stock in the company under certain favorable terms

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Front Pay

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A type of damages award in an employment lawsuit that represents the amount of money the employee would have earned if the employee was reinstated or hired into the higher-paying position from which he or she was illegally rejected

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Garnishment of Wages

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Taking or seizing the amount owing pursuant to a child support order or other order, directly from the employee's wages

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Hostile working environment

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A work environment that is so charged with harassment or similar unwanted behavior that it interferes with the ability to do one's job and is said to violate anti-discrimination laws

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Individual Retirement Account ("IRA")

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A tax-deferred savings account in which the employee contributes no more than a set maximum amount annually

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Implied contract

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A type of enforceable contract that is not made explicitly, but is implied from the circumstances or the parties' conduct

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Minimum wage

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The set minimum hourly rate that employers in certain industries are required by law to pay their employees

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Mitigation

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Action by an employee that will reduce the amount of damages resulting from an unlawful employment practice, i.e. obtaining new employment after a wrongful termination

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National origin discrimination

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Discrimination on the basis of an employee's ethnicity

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Noncompetition agreement

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A contract (or part of a contract) in which an employee promises not to work for a competing employer (or to set up a competing business) during, or for a certain length of time after, the employment with the employer

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Occupational disease

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An illness contracted by workplace conditions, such as "black lung disease" contracted by miners

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Occupational Safety & Health Administration ("OSHA")

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The federal agency charged with creating and enforcing workplace health and safety standards

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Overtime compensation

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A higher rate of pay (usually 1.5 or 2 times the regular hourly rate) an employer is obligated to pay employees who work more than a certain number of hours in a day or week

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Social Security

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A federal program of retirement or disability payments created by taxing employees' income

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Stock options

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A type of retirement plan in which employees have the opportunity to purchase stock in the company for which they work

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Telecommuting

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Working from home or another location remote from the office, using technology such as telephones or computers

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Tuition reimbursement

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An employee benefit in which the employer pays all or part of the employee's tuition for coursework or training

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Whistleblower

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The term for an employee who "blows the whistle" or an employer, i.e. who reports to the authorities an employer's illegal action or practice; Whistleblowers are entitled to a number of protections under state and federal law

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Davis-Bacon Act of 1931

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Requires the payment of minimum wages to nonfederal employees

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Norris-Laguardia Act of 1932

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Protects the rights of unions to organize, and prohibits employers from forcing job applicants to promise not to join a union in exchange for employment

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Social Security Act of 1935

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Enacted in order to protect the general welfare by establishing a variety of systems to assist the aging, disabled, and children

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Walsh-Healy Public Contracts Act of 1936

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Designed to ensure that employees working as contracts for the federal government would be compensated fairly

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Taft-Hartley Act of 1947

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Created provisions that severely restrict the activities and power of labor unions in the United States

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Landrum-Griffin Act of 1959

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Grants certain rights to union members and protects their interests by promoting demographic procedures within labor organizations; Also known as the Labor-Management Reporting and Disclosure Act (LMRDA)

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Longshore and Harbor Workers' Compensation Act (LHWCA)

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Provides for compensation and medical care to certain maritime employees and to qualified dependent survivors of such employees who are disabled or die due to injuries that occur on the navigable waters of the United States, or in adjoining areas customarily used in loading, unloading, repairing or building a vessel

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Energy Employees Occupational Illness Compensation Program Act (EEOICPA)

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A compensation program that provides a lump-sum payment of $150,000 and prospective medical benefits to employees (or certain of their survivors) of the Department of Energy and its contractors and subcontractors as a result of cancer

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Federal Employees' Compensation Act (FECA)

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Establishes a comprehensive and exclusive workers' compensation program which pays compensation for the disability or death of a federal employee resulting from personal injury sustained while in the performance of duty

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Black Lung Benefits Act (BLBA)

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Provides monthly cash payments and medical benefits to coal miners totally disabled from pneumoconiosis ("black lung disease") arising from their employment in the nation's coal mines; Also provides benefits to a deceased miner's survivor's if the miner's death was due to black lunch disease

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Employee Retirement Income Security Act (ERISA)

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Regulates employers who offer pension or welfare benefit plans for their employees

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Title I of ERISA

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Administered by the Employee Benefits Security Administration (EBSA) and imposes a wide range of fiduciary, disclosure and reporting requirements on fiduciaries of pension and welfare benefit plans and on others having dealings with these plans

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Uniformed Services Employment and Reemployment Rights Act (USERRA)

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Certain persons who serve in the armed forces have a right to reemployment with the employer they were with when they entered service; Includes those called up from the reserves or National Guard

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Veterans' Employment and Training Service

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Helps veterans, reservists, and National Guard members in securing employment and the rights and benefits associated with such

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Veterans' Preference

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Veterans and other eligible persons have special employment rights with the federal government; They are provided preference in initial hiring and protection in reductions in force

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McNamara-O'Hara Service Contract Act

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Sets wage rates and other labor standards for employees of contractors furnishing services to the federal government

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Wage and Hour Division

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Administers and enforces government contract, grant and financial aid laws

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Office of Federal Contract Compliance Programs (OFCCP)

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Administers and enforces three federal contract-based civil rights laws that require more federal contractors and subcontractors, as well as federally-assisted construction contractors, to provide equal employment opportunity

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Office of the Assistant Secretary for Administration and Management's (OASAM) Civil Rights Center

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Administers and enforces several federal assistance-based civil rights laws requiring recipients of federal financial assistance from Department of Labor to provide equal opportunity

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Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

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Regulates the hiring and employment activities of agricultural employers, farm labor contractors and associations using migrant and seasonal agricultural workers; Prescribes wage protections, housing and transportation safety standards, registration reqs and disclosure reqs

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Immigration and Nationality Act (INA)

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Requires employers who want to use foreign temporary workers on H-2A visas to get a labor certificate from the Employment and Training Administration certifying that there are not sufficient, able, willing and qualified U.S. workers available to do the work.

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Federal Mine Safety and Health Acts of 1977 (Mine Act)

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Covers all people who work on mine property; Mine Safety and Health Administration (MSHA) administers this act; Holds mine operators responsible for the safety and health of miners; provides mandatory safety and health standards

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Office of Federal Contract Compliance Programs

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Enforces Executive Order 11246, which requires federal construction contractors and subcontractors, as well as federally assisted construction contractors to provide EEO

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Copeland Act

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Precludes a federal contractor from inducing any employee to sacrifice any part of the compensation required

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Federal Transit Law

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Says the Department of Labor is responsible for approving employee protection arrangements before the department of Transportation can release funds to grantees

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Employment and Training Administration

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Provides information to the public on the Worker Adjustment and Retraining Notification (WARN)

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Accommodations

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A reasonable change in work duties, hours or the workplace for religious reasons or for reason of a handicapping condition. (Such as a wheelchair ramp to enter the building, accessible water fountains or workspace, or the right to wear a religiously required article.)

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Arbitration

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A hearing heard and decided by an "arbitrator", a private citizen (often a lawyer or retired judge) who is paid by one or both sides to listen to the evidence and witnesses. There is typically no appeal from an arbitration.

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Arbitration Agreement

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A contract between two parties which binds them to arbitration and usually forbids lawsuits between them. The agreement may also set out the proportion of the costs each will pay and the manner in which the arbitrator(s) is/are selected.

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Charge of Discrimination

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A document filed with the EEOC which claims that the employer or former employer discriminated illegally against the employee. There are deadlines for filing such a charge.

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Compensatory, or "comp" time

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The practice of offering employees time off from work in another work week, rather than pay overtime pay. That practice is generally illegal under federal law for private employers.

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Concerted Activity

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When two or more employees gather together or communicate with each other to protest working conditions, pay or benefits or to bargain with the employer regarding those items.

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Contract

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Any agreement, orally or in writing, as to the responsibilities of each of two or more parties. A contract can be enforced.

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Discrimination

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More negative treatment by an employer with a certain minimum number of employees because of the employee's race, color, religion, sex (including pregnancy), national origin, disability or age (age 40 or older), which impacts on job decisions, such as hiring, firing, promotions, training, wages and benefits.

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Employee

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Generally an individual who is employed by a person, corporation or partnership, is paid on a salary or hourly basis, and has taxes withheld from his or her pay.

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Employment Security Commission (ESC or NCESC)

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The agency in North Carolina responsible for paying unemployment compensation to Employees fired other than due to misconduct and for collecting unemployment taxes from Employers

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Exempt employee

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An employee who is not covered by overtime laws and may work more than 40 hours a week without being paid time and one-half for the hours over 40, usually an "administrative, executive, or professional" employee who is paid on a salary basis at least $455 per week, and spends most of his or her time performing duties that require him or her to use discretion and independent judgment

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FICA

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Social Security Taxes which are paid half by the employer and half by the employee, or paid entirely by self-employed persons. The rate is 6.2% each or 12.6% total of all wages paid up to a ceiling which for 2016 $118,500 a year.

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Form 18 or 18B

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An injured worker must file this form with the Industrial Commission within two years of a work-related accident, if the employer has not reported the injury or agreed to payment, to collect Workers' Compensation benefits.

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Form 19

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Employer's report of a work-place accident

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Form 61

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Employer's or Carrier's denial of Worker's Comp liability, which specifies the exact reason for the denial.

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Form SS-8

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The IRS Form which is used to ask the Social Security Administration to determine whether a worker is an "employee" or an "independent contractor".

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Good cause attributable to the Employer

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Under Unemployment law, a reason for quitting employment which includes such things as the employer's facility moving more than 50 miles, being transferred to a shift during which the employer knows one cannot get childcare, sexual harassment on the job, and other circumstances which the employer controls or could control. If an employee quits due to good cause attributable to the Employer, they are not disqualified from unemployment benefits

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Harassment

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Being singled out, ridiculed, propositioned, groped or subjected to offensive language or conduct because of one's race, color, religion, sex, (including pregnancy), national origin, disability, or age (age 40 or older)

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Independent Contractor

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Generally, an individual or corporation who provides services to others under an agreement known as a contract, which may be oral or written, and who usually does not have taxes withheld from the payments made by the entity for who services are provided.

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Lawsuit

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A dispute which is actually filed in state or federal court. A demand letter, an EEOC charge or other dispute is not a lawsuit until it is filed in a court.

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Mediation

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A negotiation with a neutral party paid by both sides who attempts to assist the parties in resolving their dispute voluntarily.

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Medicare Tax

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Taxes to fund Medicare are also half paid by the employer and and half by the employee, or paid entirely by self employed persons. The rate is 1.45% each or 2.9% total of all wages paid.

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Minimum Wage

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The minimum wage allowed to be paid to most employees for each hour worked, except for tipped employees. Federal minimum wage is $7.25 per hour.

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Misconduct

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Under Unemployment law, a serious disciplinary infraction such as stealing, insubordination, sleeping on the job, fighting or violating some other work rule which is known to be a cause for termination or about which one has previously been warned could cause termination. Misconduct may disqualify an employee from unemployment benefits for up to two years.

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NC Department of Labor

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The state agency which is responsible for, among other things, investigating unpaid wage claims, investigating REDA (Retaliatory Employment Discrimination Act claims), and investigating and inspecting for OSHA

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NC Industrial Commission

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The state agency which handles Workers' Compensation claims

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Non-Exempt Employee

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Once who must be paid for all hours over 40 in a single work week, or over 85 in 2 weeks for certain emergency employment, at a rate of time and one-half

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"Off The Clock"

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It is illegal to order an hourly employee to work unrecorded and uncompensated hours or to suffer or permit them to work such hours

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Retaliation

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It is illegal for an employer to fire or discipline an employee due to that employee having made any complaint about discrimination, filed a charge of discrimination, filed a worker's compensation claim, made a Wage and Hour of OSHA complaint, engaged in concerted activity, testified in an ESC hearing or EEOC investigation, or engaged in other protected activity

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Retaliatory Employment Discrimination Act (REDA)

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NC law which forbids retaliation because an employee filed (or threatened to file) a worker's compensation claim, made a complaint under state wage payment law, made or threatened to make an OSHA complaint, or made a legal complaint about domestic abuse under NC General Statutes Chapter 50B.

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Substantial fault

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As a reason for termination under NC Unemployment law, a lesser act than "misconduct", such as repeated absenteeism or tardiness, which the employee could have prevented but failed to do so. Substantial fault can result in the forfeiture of 4 to 13 weeks of unemployment benefits.

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Sue

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To sue is to file a lawsuit

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Unemployment Benefits

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Benefits which are paid for a specified length of time to employees who were terminated not due to misconduct or who quit due to causes attributable to the employer if certain work requirements are met and the employee is ready willing and able to accept employment and is actively looking for employment

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Workers' Compensations

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A legal system that protects the rights of workers who become injured while on the job. Each state has its own set of workers' compensation laws detailing the specific benefits to which an injured person may be entitled. This set of laws also details the procedures a worker must follow in order to obtain worker's comp benefits (medical care, pay in lieu of wages, etc.)