Overview of Employment Law - IFEBP · Overview of Employment Law Jennifer S. Abrams, Esq. Attorney Susanin, Widman & Brennan, P.C. Wayne, Pennsylvania G05-AMPC2-1. Overview • Review

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Overview of Employment Law

Jennifer S. Abrams, Esq. AttorneySusanin, Widman & Brennan, P.C. Wayne, Pennsylvania

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Overview

• Review of Federal employment laws • Employee classification • Legal issues surrounding:

– Substance abuse – Drug testing– Sick time and paid time off– Criminal records and hiring

• Review of changes to FLSA’s final overtime regulations • Employee benefit eligibility

– Impact of movement from full to part-time status

• NLRA section 7 rights– Social media– Organizing

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Federal Employment Laws

• Title VII of the Civil Rights Act of 1964 (“Title VII”)• Family and Medical Leave Act (“FMLA”)• Americans with Disabilities Act (“ADA”)• Age Discrimination in Employment Act (“ADEA”)• Fair Labor Standards Act (“FLSA”)• National Labor Relations Act (“NLRA”)• Employee Retirement Income Security Act (“ERISA”) • Affordable Care Act (“ACA”)• Genetic Information Nondiscrimination Act (“GINA”)

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State/Municipal Employment Laws

• States and municipalities often maintain their own employment laws

• General rule: comply with the law most generous to the employee

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Employee Classification

• Employees vs. Independent Contractors• Employee

– Fact sensitive analysis• General focus is on the employer’s right to control

the manner and means by which the work is performed

• FLSA “economic realities test”– Independent contractor agreements will not

control • Misclassification has major implications

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Americans with Disabilities Act

• Generally applies to employers that have 15 or more employees

• Prohibits discrimination and harassment against “qualified individuals” on the basis of disability – A “qualified individual” is a person with a disability who, with or

without reasonable accommodation, can perform the essential functions of the job

– Disability is:• A physical or mental impairment that substantially limits a major life

activity;• A record or past history of impairment; or• Being regarded as having an impairment

• Limits disability-related inquiries and medical examinations

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ADA—Disability-Related Inquiries and Medical Examinations

• Different requirements for different stages of the employment process:– Pre-employment– Conditional job offer– During employment

• Any information from medical examinations must be kept confidential and maintained separately within an employee or applicant’s file

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• Medical Inquiries – Asking about the severity or nature of disability– Asking about prior workers’ compensation history– Asking about prescription drugs/medications

• Non-Medical Inquiries– Asking about non-disability related issues– Asking about current drug use/drinking– Asking for emergency contact information

ADA—Disability-Related Inquiries and Medical Examinations

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ADA—Drug Testing

• Pre-employment– Drug testing for illegal use of drugs permissible

• State laws may differ

– Alcohol testing must be job-related and consistent with business necessity

• During employment – Random – Post-Accident

• Employers required to comply with safety regulations established by the Department of Transportation, Department of Defense, and/or Nuclear Regulatory Commission, can require that employees comply with the regulatory standards

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Family and Medical Leave Act• Generally applies to private employers with 50 or more

employees, public agencies, and private and public elementary schools

• Allows certain employees to take up to 12 weeks of unpaid leave for personal or family medical reasons

• To be eligible, employee must have been:– Employed for at least 12 months; and– Worked at least 1,250 hours within the 12 month period

immediately preceding the first day of the requested leave.

• Personal family or medical reasons include:– Birth of son or daughter– Placement of son or daughter for adoption or foster care– Care for a spouse, child, or parent with serious health condition– Personal serious health condition

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Substance Abuse in the Workplace

• Employer can prohibit an employee from using illegal drugs or being under the influence of drugs or alcohol while on the job

• Potential implications under FMLA or ADA – Substance abuse may be “serious health condition” under FMLA

if the required absence is for treatment• Absences because of substance abuse that are not related to

treatment do not qualify for FMLA leave

– Recovering alcoholics or drug addicts are protected by ADA• Time off for treatment may be an accommodation • ADA does not override federal safety laws and regulations

• Marijuana – State law concerns

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Sick Time and Paid Time Off

• FMLA mandates unpaid time off – Employer may voluntarily establish policy that

requires use of all accrued sick/vacation time during FMLA leave

• Some cities/states have paid sick leave laws – http://www.nationalpartnership.org/research-

library/work-family/psd/paid-sick-days-statutes.pdf

• Under ADA, time off may be a “reasonable accommodation”

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Fair Labor Standards Act

• Minimum wage• Overtime • Exemptions• Time worked • Recordkeeping• Interaction with state laws• NEW REGULATIONS EFFECTIVE

DECEMBER 1, 2016– https://blog.ifebp.org/index.php/time-for-action-

new-rules-on-overtime-finalized

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FLSA—Minimum Wage and Overtime

• Minimum wage – Federal: $7.25 – States vary

• Overtime – Time and a half of “regular rate” of pay for

hours worked in excess of 40 during a workweek

– Workweek is any 7 day period, no averaging – No “banking”

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FLSA Exemptions—Executive, Administrative or Professional Employees

• “Executive”, “Administrative”, and “Professional” Employees are exempt from the FLSA’s overtime rules if they earn a salary of:– $455 per week until November 30, 2016 – $913 per week effective December 1, 2016

(equivalent of $47,476 yearly salary)• These amounts automatically updated every three years

(next update January 1, 2020)

• Duties test• Salary basis test • Certain occupations are never exempt

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FLSA Exemptions—Highly Compensated Employees

• Certain highly compensated employees are exempt from the FLSA’s overtime requirements

• To satisfy exemption, must:– Earn at least $455 per week ($913 effective December 1, 2016)

and an annual salary of at least $100,000 ($134,004 effective December 1, 2016);

– Perform office or non-manual work; and– Customarily and regularly perform any one or more of the

exempt duties or responsibilities of an executive, administrative, or professional employee

• The annual salary amount automatically updates every three years (January 1, 2020)

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FLSA—Time Worked

• Time worked is self-defining – Does not include PTO

• All time worked must be compensated• Common issues:

– Donning and doffing – Checking work emails from outside the workplace – Travel time– Preparatory activities before or after work shift– On-call time – Lunch breaks

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Title VII

• Prohibits discrimination or harassment on the basis of national origin, ethnicity, race, color, religion, sex– Sex encompasses pregnancy discrimination and can

encompass sexual orientation if the discrimination is related to a person’s failure to meet gender norms

– Gender identity

• State laws expand protected categories – Sexual orientation protected in 24 states– Gender identity protected in 22 states

• Enforced by EEOC

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Age Discrimination in Employment Act

• Protects individuals age 40 or over • Specific Severance/Settlement Agreement

Requirements • Enforced by EEOC

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Anti-Retaliation

• Title VII, ADA, ADEA, ERISA, ACA all contain anti-retaliation provisions that prohibit an employer from retaliating against an employee for exercising his or her rights under the law

• Timing and documentation are key

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Burden-Shifting Framework

• Applies to discrimination and retaliation claims

• Employee must establish prima facie case of discrimination or retaliation

• Burden shifts to employer to establish legitimate non-discriminatory reason for action

• Burden shifts back to employee to show that legitimate non-discriminatory reason was actually pretext for discrimination

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Use of Criminal Background Checks/Credit Reports in Hiring

• Criminal Background Checks– Not prohibited by federal law, but the use of criminal background

checks has the potential to cause Title VII issues, e.g.:• Where job applicants with same criminal records are treated differently

based on race, gender, national origin

• Where use of criminal background information has disparate impact on minorities

– State and municipal ban the box/fair chance laws• http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-State-and-

Local-Guide.pdf

• Credit Reports – Fair Credit Reporting Act requires that the employer obtain a valid

authorization from an employee before obtaining a credit report (authorization must be separate from the application itself)

– Eleven states and some cities have laws that limit employer credit checks

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Employee Benefits Eligibility

• Employer policy v. employee benefit plan terms

• Moving from full-time to part-time status – Affordable Care Act

• 30 hours per week threshold • Use of measurement periods • Whistleblower provisions

– ERISA – Internal Revenue Code participation and

nondiscrimination requirements

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NLRA Section 7 Rights

• Section 7 of NLRA gives employees the right to:– Self-organize– Form, join, or assist unions– Collectively bargain for changes in wages, working

conditions, other terms and conditions of employment– Engage in or refrain from engaging in “protected

concerted activities”

• If an employer violates these rights it commits an “unfair labor practice” under Section 8 of the NLRA

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NLRA—Employer TIPS

• Employer should not:– Threaten – Interrogate – Promise– Surveil

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NLRA—Protected Concerted Activities

• Protected concerted activities are group activities (2 or more employees) that attempt to improve wages, hours, and other working conditions – To be concerted, activity must be for

employees’ “mutual aid or protection”

• Right to engage in protected concerted activities applies regardless of whether employees are unionized

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NLRA—Social Media Issues

• Use of social media may be protected concerted activity

• Employers should maintain social media policies – Policies may not restrict employee’s exercise

of Section 7 rights

• NLRB decisions and guidance

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Recordkeeping

• Certain recordkeeping required by law (e.g. FLSA, FMLA, ACA)

• Handbooks – Policies

• EEO• Drug Testing• FMLA• PTO• Discipline

– Benefits– At-will acknowledgement

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Recordkeeping (continued)

• Other documentation – Receipt of handbook– Hours tracking – Discipline– Reviews

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Session #G05

Overview of Employment Law

• Review and update handbooks for compliance with federal employment laws, with special attention to:– Updated FLSA provisions – Social media policies– Employee benefit eligibility

• Review your workforce for improper classification issues

• Review your documentation policies and procedures for:– Hours tracking (FLSA, ACA, IRC)– Employee discipline and reviews

• Review salaries and hourly rates of employees for changes from exempt to non-exempt effective December 1, 2016

Website Resourceshttps://blog.ifebp.org/index.php/time-for-action-new-rules-on-overtime-finalized

62nd Annual Employee Benefits ConferenceNovember 13-16, 2016Orlando, Florida

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2017 Educational ProgramsGeneral Topics

63rd Annual Employee Benefits Conference October 22-25, 2017 Las Vegas, Nevadawww.ifebp.org/usannual

Trustees and Administrators InstitutesFebruary 20-22, 2017 Lake Buena Vista (Orlando), FloridaJune 26-28, 2017 San Diego, Californiawww.ifebp.org/trusteesadministrators

Fraud Prevention Institute for Employee Benefit PlansJuly 17-18, 2017Chicago, Illinoiswww.ifebp.org/fraudprevention

Construction Industry Benefits ConferenceNovember 13-14, 2017 Santa Monica, Californiawww.ifebp.org/construction

Collection Procedures InstituteNovember 15-16, 2017 Santa Monica, Californiawww.ifebp.org/collections

Related ReadingVisit one of the on-site Bookstore locations or see www.ifebp.org/bookstore for more books.

Employee Benefits Glossary, 13th EditionItem #7570www.ifebp.org/glossary

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NEW!

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