Affirmative Action

Several federal laws and state statutes require employers to take affirmative action to ensure that job applicants and employees are treated without regard to their race, color, religion, sex or national origin. Certain federal contractors and subcontractors are obligated to include nondiscrimination statements in their contracts and maintain written affirmative action plans. These plans generally include an equal employment policy statement, a workforce analysis detailing the number of women and minorities in the workforce, and an availability analysis to determine if more minorities and females should be included in the employer's workforce. Federal contractors are also required to take affirmative action for disabled workers and certain veterans. Those obligated to take affirmative action must file yearly reports detailing their actions.

Age Discrimination in Employment Act (ADEA)

The ADEA is a federal law which promotes the employment of older persons based on ability rather than age, and prohibits arbitrary age discrimination. It protects individuals age 40 and over, and applies to both private and public employers. Some state statutes prohibit age discrimination regardless of the individual's age.

Alternative Dispute Resolution (ADR)

ADR is an alternative to litigation for resolving workplace conflicts. It most often includes either arbitration or mediation. In mediation, a neutral third party acts an an intermediary between the parties to a dispute and attempts to help them reach a mutually agreeable settlement. In arbitration, a neutral third party weighs evidence presented by the parties to a dispute and makes a decision that resolves the dispute. Many courts are attempting to reduce large dockets by compelling litigants to engage in some form of ADR prior to litigation. ADR is generally less formal and less adversarial than traditional litigation. The parties may choose, prior to engaging in ADR, whether the results will be binding or nonbinding. Many employers require new employees to sign arbitration agreements as a condition of employment.

Americans with Disabilities Act (ADA)

The ADA prohibits discrimination against qualified individuals with disabilities in employment, public accommodations, transportation, state and local government services, and telecommunications. It applies to private employers who have 15 or more employees. In employment, the ADA requires that employers make “reasonable accommodations” to enable persons with disabilities to perform the “essential functions” of their jobs.

Arrest & Conviction Records

There is no federal statute that prohibits inquiry into a job applicant's arrest or conviction records; however, individual states may limit such inquiries. Depending upon the job sought, it may be prudent for an employer to include a search of arrest/conviction records in a background check. However, refusing to employ an individual based solely on an arrest or conviction record may be considered unlawful discrimination.

Background Checks

Many employers conduct background checks to determine a job applicant’s suitability for a particular position and to check for past criminal behavior. The federal Fair Credit Reporting Act (FCRA) and many state laws regulate the type of investigations that can be conducted and control the types of disclosures and reporting that must be done in the course of a background check.

Bona Fide Occupational Qualification (“BFOQ”)

Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act (ADEA) permit an employer to rely on sex, religion, national origin, or age in making employment decisions in certain limited situations. The employer must show that the sex, religion, national origin, or age of an employee is a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business or enterprise. Race is never a BFOQ under Title VII.

Civil Rights Act of 1991 (CRA)

The CRA provides for a jury trial for employment discrimination claims based on race, sex, color, national origin, or religion filed under Title VII of the 1964 Civil Rights Act, for disability discrimination claims filed under Title I of the Americans with Disabilities Act (ADA), and for disability discrimination claims filed under the Rehabilitation Act. The CRA also allows employees filing such claims to recover compensatory and punitive damages upon a finding of discrimination, subject to certain limitations on dollar amounts.

Class Actions

Class action lawsuits are filed by individuals seeking to represent a class or group of employees who claim to have been injured by an employer's discriminatory action. Class actions can be brought under different procedural rules which carry different requirements for determining when a class will be certified. There are two stages in class action litigation: a determination of whether class treatment is appropriate (“class certification”); and a determination of liability.

Collective Bargaining

Collective bargaining is the process of negotiation between an employer and a union representing the employees. An employer is not required to engage in collective bargaining unless the union has been certified as the employees' representative by the National Labor Relations Board, or unless the employer has voluntarily recognized the union as the employees' representative. An employer is only required to bargain in good faith with a union; it is not required to acquiesce to union demands.

Consolidated Omnibus Budget Reconciliation Act

The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires most group health plans to provide a continuation of health coverage to employees and their dependants after certain events take place that would otherwise result in their losing coverage. Its provisions apply generally to group health plans maintained by employers with at least 20 employees. Employers' health plans must offer qualified beneficiaries the option, within a certain time period, to continue their health insurance coverage for a specified length of time.

Constructive Discharge

Actions by an employer or co-worker that make an employee’s job so unbearable that a reasonable person in the employee’s position would have no choice but to resign.

Contingent Workers

Contingent workers are those who are hired through alternative staffing arrangements, such as temporary agencies, long term staffing, outsourcing, employee leasing, etc. Many employers utilize alternative staffing arrangements so that a leasing company can handle payroll, benefits and other personnel issues. Alternative staffing can have legal risks; often a company can be held liable as an employer, along with the staffing company, for actions of the contingent worker.

Covenants Not to Compete

These agreements generally provide for no competition during and after employment. Such agreements must be reasonable in geographic scope and duration. They can be separate contracts or part of an overall employment contract. Generally, state law governs the enforceability of covenants not to compete. However, federal laws regulate anti-trust prohibitions against restraint of trade and intellectual property.

Davis-Bacon Act

This is a federal law requiring the payment of prevailing union wages to employees of certain federal contractors.

Decertification

The loss of a union’s right, often by election, to act as the exclusive bargaining representative of a group of employees.

Defamation

Defamation occurs whenever a speaker (slander) or writer (libel) communicates a false statement to a third person which injures the person whom it concerns. Many employers are understandably reticent about providing candid information about former employees due to the potential for defamation lawsuits. However, some state statutes protect employers from defamation claims for truthful references given in good faith to someone with a legitimate need to know the information.

Department of Labor (DOL)

The Department of Labor (DOL) is the federal agency charged with enforcement of more than 180 federal laws, including the National Labor Relations Act (NLRA), the Occupational Safety and Health Act (OSHA), the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA). The DOL also compiles statistics relating to the national economy.

Disability

The ADA defines disability as a “physical or mental impairment that substantially limits one or more of the major life activities of an individual.” There is no "laundry list" of particular conditions that constitute disabilities; each case requires individual assessment. The ADA focuses on an individual's present condition, not upon what that condition may be in the future.

Disparate Impact

The term disparate impact refers to an employment practice which appears to be neutral but has a disproportionate impact on a protected category of employees. This is one method of proving discrimination. The plaintiff is not required to prove that the employer intended to discriminate to succeed in a disparate impact claim.

Disparate Treatment

This is another method of proving illegal discrimination. To prove disparate treatment, a plaintiff must first belong to a protected class (a class of people protected from discrimination by either federal or state law). The plaintiff must then prove that the employer intentionally treated him or her less favorably than someone outside the protected class because the plaintiff belonged to the protected class.

Drug Testing

Various federal agencies, such as the Federal Aviation Agency and the Federal Highway Administration require drug testing. The Drug Free Workplace Act of 1998 requires that qualifying recipients of federal grants make certain certifications regarding their anti-drug programs. While there is no federal right to privacy that would protect private employees from a random drug test, employers should consider defamation concerns and any right to privacy conveyed by state constitutions. Moreover, many states regulate drug testing to some degree.

E-Mail

Employers should have a published policy governing the use of electronic equipment, e-mail, voice mail, and internet connections and transmissions, and inform employees that all communications are the property of the company and will be monitored. The policy should specify that e-mail is to be used strictly for work purposes, not for private communication. E-mail can never truly be deleted, and should be treated as written communication. Employers that accept resumes and other outside communications via e-mail should be aware of the changing law regarding electronic signatures, as well as the fact that electronic communications may be discoverable during litigation.

Employee Privacy

Most states recognize and allow legal actions based on violations of privacy, such as intrusion into private affairs, public disclosure of embarrassing facts, publicity that places the person in false light in the public eye or appropriation of the person's name or likeness. While the Fourth Amendment protects against unreasonable government searches and seizures, most searches conducted by private employers do not involve constitutional issues. Whether or not a search is reasonable depends upon whether the employee had a reasonable expectation of privacy in the particular area searched. Federal law allows employers to monitor employees for business purposes if the employee has consented to and acknowledged this practice, preferably in writing. Such consent destroys any expectation of privacy.

Employee Assistance Program (EAP)

Many companies have established EAPs to help employees resolve personal conflicts and provide counseling on a variety of matters. EAPs enable employees to discuss workplace problems in confidence, without fear of retribution, and obtain assistance for a variety of issues including alcoholism, drug abuse, and stress related to an incident of workplace violence. An effective EAP may also help reduce an employer's exposure to liability.

Employee Handbooks

All employers should maintain written employee and supervisor handbooks detailing current employment policies. These handbooks should be maintained separately because some information included in supervisor handbooks is not appropriate for employee handbooks. The handbooks should be reviewed regularly, and contain a written acknowledgment that the employee has received and read the handbook. When drafting handbooks, employers should avoid language conveying permanency or duration because this language could create a binding employment contract. The handbook should contain a disclaimer providing that it is not an employment contract.

Employment-at-Will

In the absence of a contract, in most states, employees are employed “at will,” meaning they can be terminated for any reason, good or bad, without cause or notice, as long as the reason is not discriminatory or otherwise unlawful. In many states, if the issue is contested, courts will consider internal handbook language or other writings to determine if an employee is an employee “at will.” Employers should check to see whether their state is an “at will” state.

Equal Employment Opportunity Commission (EEOC)

The EEOC was established by Title VII of the Civil Rights Act of 1964, and is the federal agency responsible for enforcing many federal statutes. Individuals who feel they have been discriminated against may file a charge with the EEOC. The EEOC conducts an investigation to determine if there is reasonable cause to believe that discrimination has occurred. At the conclusion of its investigation, the EEOC may issue a “notice of right to sue” which permits the individual to file suit, regardless of whether it found reasonable cause to believe discrimination had occurred. Alternatively, the EEOC may file suit itself on the individual's charge. In that case, the EEOC will not issue a notice of right to sue. The EEOC can also file a “commissioner's charge” and bring suit, even if no individual has complained of discrimination.

Equal Pay

The Equal Pay Act of 1963, a portion of the Fair Labor Standards Act (FLSA), prohibits sex-based discriminatory rates of pay in which men and women are protected equally. Differences in wages are permissible if based on a seniority system, a merit system, a production-based system or any factor other than sex. Under the Act, jobs being compared must require equal skill, effort and responsibility and be performed under similar working conditions.

ERISA

The Employee Retirement Income Security Act (ERISA) regulates most employee benefit plans offered by employers, including group health plans, disability and death benefit plans, and severance pay plans. Employers and/or outside administrators have a fiduciary responsibility for the plans. For violations, ERISA provides a cause of action for fiduciaries, plan beneficiaries, participants and the Secretary of Labor.

Family and Medical Leave Act (FMLA)

According to the FMLA, employees of companies or worksites that employ 50 or more employees are eligible to take up to 12 weeks of medical leave in a one year period, if they have been employed for at least 12 months (not necessarily consecutive) and have worked at least 1,250 hours during the 12 month period preceding the absence. The reasons for medical leave can include the birth or adoption of a child, caring for a spouse, parent, or minor child who cannot care for him/herself, or for a serious health condition that makes the employee unable to perform the essential function of his/her job with or without reasonable accommodation. The leave of absence can be unpaid. The FMLA has different methods of calculating the one-year period.

Fair Credit Reporting Act (FCRA)

The federal FCRA governs an employer’s request for or use of a “consumer report” or “investigative consumer report” that was prepared or collected by a “consumer reporting agency.” Before an employer can obtain a consumer report about an applicant or current employee, the employer must disclose its intention to obtain such a report and receive the applicant/employee’s written authorization to do so. The law also requires the employer to make certain disclosures to the consumer reporting agency before receiving a consumer report from the agency. An employer who takes an adverse employment action based on information contained in a consumer report must make certain disclosures to the employee or job applicant both before and after the action.

Fair Labor Standards Act (FLSA)

The FLSA, administered by the Department of Labor, regulates the wage and hour laws for employers in the public and private sectors. The purpose of the law is to set minimum wage rates, regulate overtime pay, establish record keeping requirements, and enforce child labor standards and penalties.

Featherbedding

Featherbedding refers to work rules set by a labor union which place arbitrary limits, not related to safety or production needs, on the use of employees or machines. These limits require the employer to use more employees than necessary for a particular job.

Garnishment of Wages

When an employee's wages are garnished, the employer is required to withhold a specified amount from an employee's paycheck to satisfy a particular debt. The federal Consumer Credit Protection Act limits the amount that can be garnished, and prevents employers from discharging employees simply because their paychecks have been garnished for a particular debt. State laws may also regulate garnishments.

Harassment

Some harassment is illegal and some is not. Harassment may be illegal if it is based upon a personal characteristic which is protected by state or federal law. Harassment on the basis of race, sex, color, national origin, religion, age, disability and pregnancy as well as any other category protected by state or federal law is illegal. Employers should have a policy prohibiting illegal harassment and provide a way for employees to complain to someone other than the harasser if they believe they have been subject to illegal harassment (such as an EAP).

Health Insurance Portability & Accountability Act (HIPAA)

HIPAA generally limits preexisting condition exclusions in employees' health insurance policies to 12 months (or 18 months in the case of a late enrollee). This period is reduced by the amount of creditable coverage as of the enrollment date. HIPAA may also provide a right to purchase individual coverage if no group coverage is available and the employee has exhausted COBRA coverage. HIPAA also requires covered health care providers and health plans to take certain steps to protect patients’ individually identifiable health information.

Immigration (Business)

The Immigration and Naturalization Service (INS) and the State Department regulate the admission of foreign nationals into the United States. There are several business nonimmigrant and immigrant visas that a foreign employee may obtain to work in the U.S., including the E-1/E-2 investor/trader, L-1 intracompany transferee and the H-1B specialty worker visa. In recent years, the demand for some types of visas has exceeded the quota.

I-9 Form

All newly hired employees are required to complete I-9 forms, in which they attest that they are a United States citizen, a permanent resident alien or an alien authorized to work in the U.S. The employee must sign and date the form. The employer is responsible for the employee's failure to complete the form, and for making sure that supporting documentation appears, on its face, to be genuine. The employer is required to maintain I-9 forms, but not the supporting documentation, for a period of time.

Independent Contractors

Not all workers are employees; some are independent contractors. Determining whether a worker is an employee or an independent contractor is important for a number of reasons, including taxation, exposure to discrimination, application of workers' compensation, and state unemployment liability. There are a number of tests for determining whether a worker is an independent contractor such as whether the person works independently without much supervision, sets his/her own hours, is paid on a per job basis, pays his/her own expenses, or is generally excluded from benefit plans. Not all factors need to be met for a worker to be considered an independent contractor.

Jury Duty

Jury service is defined variously by state, but usually involves being summoned and reporting for jury service, as well as actual service. Jury service generally does not include days for which the juror reported before being notified that his/her presence was not required. Most states have statutes protecting employees from retaliation due to jury service.

Labor Management Reporting and Disclosure Act of 1959 (LMRDA)

Also known as the Landrum-Griffin Act, the LMRDA modified and repealed various sections of the Taft-Hartley Act and strengthened prohibitions on union unfair labor practices. It guarantees certain rights to unions, requires them to file information reports of public record, governs the imposition of trusteeships over subordinate unions, establishes standards for union elections, governs the management of union funds and amends the Labor Management Relations Act. The Secretary of Labor is authorized to investigate potential violations of the LMRDA.

Military Leave

Federal and state statutes require employers to reinstate employees upon their completion of military service, under specified circumstances. The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) replaces the Veteran's Reemployment Rights Act (“VRRA”) and expands employment rights for all individuals who have served or may serve in the uniformed services. Serving in the “Uniformed Services” involves the performance of duty on a voluntary or involuntary basis, including but not limited to, active duty, active duty for training, initial active duty for training, inactive duty training and full-time National Guard duty.Note that some state laws may provide additional or different protection for employees serving in the military.

National Origin Discrimination

Title VII prohibits discrimination on the basis of national origin. As with other Title VII discrimination claims, the employee or prospective employee has the burden of proving that the employer engaged in discriminatory conduct. National origin discrimination includes discrimination based upon the place of origin of the individual's ancestors, or the individual's possession of certain physical, cultural or linguistic characteristics of a national origin group. Employers can also be liable for harassment based upon national origin. In some situations, English-only rules can constitute national origin discrimination.

National Labor Relations Act (NLRA)

Also known as the Wagner Act, the NLRA was passed in 1935 and established the National Labor Relations Board (NLRB). The NLRA prohibits employer unfair labor practices but does not prohibit union unfair labor practices.The Wagner Act was later amended by the Taft-Hartley Act in 1947, the Landrum-Griffin Act of 1959, and the Health Care Amendments of 1974.

National Labor Relations Board (NLRB)

The NLRB is a federal government agency charged with responsibility for enforcing the National Labor Relations Act. The NLRB maintains field offices throughout the United States and is responsible for the oversight of union elections and for prosecuting and remedying unfair labor practices committed by unions and employers. Five board members appointed by the President of the United States govern the NLRB.

Occupational Safety and Health Act (OSHA)

The purpose of OSHA is to “assure . . . every working man and woman in the nation safe and healthful working conditions . . .” 29 U.S.C. § 651(b). The Act applies to all employment performed in any workplace within the United States as long as the employer has one or more employees. The Occupational Health and Safety Administration administers the Act. The administration conducts workplace inspections and may issue violations for sites that do not comply with the Act.

Office of Federal Contract Compliance Programs (OFCCP)

The OFFCCP is part of the Department of Labor’s (DOL) Employment Standards Administration and is responsible for enforcing regulations applicable to federal contractors, including affirmative action requirements.

Older Workers' Benefit Protection Act (OWBPA)

This law prohibits age discrimination in employee benefits and establishes minimum standards for an employee's waiver of claims under the ADEA. Essentially, it requires that the waiver of ADEA claims be made knowingly and voluntarily, that the waiver be given in exchange of compensation, that the employee be advised in writing to consult with an attorney before signing the waiver, and that the waiver does not cover rights or claims that may arise after the date the waiver is signed. It also requires the employee waiving the claim be given a specific amount of time to consider whether or not to sign the waiver. Waiver provisions apply to private and public employers.

Polygraphs

The Employee Polygraph Protection Act passed in 1988 prohibits most private (non-governmental) employers from using polygraph tests for pre-employment screening and places such substantial restrictions on the use of polygraphs for current employees that most employers do not find it realistic to use polygraph tests.

Professional Employee Organization (PEO)

PEOs are also known as employee leasing agencies. Typical employee leasing services involve the leasing of all or most of a client's employees back to a leasing/staffing company. The leasing/staffing company then manages the administration of all human resource functions pertaining to the leased employees. Many states have passed laws regulating employee leasing agencies.

Pregnancy Discrimination Act

Pregnancy discrimination is prohibited by Title VII as amended by the Pregnancy Discrimination Act of 1978. It is unlawful to discharge or refuse to promote or hire women due to pregnancy. Women who are disabled due to pregnancy must be treated in the same manner as other individuals who are considered disabled.

Railway Labor Act (“RLA”)

The RLA was enacted in 1926 and covers railroad and airline employees. The RLA conducts dispute settlements different from the NLRA. The RLA provides for the settlement of both minor and major disputes, and imposes substantial limitations on the ability of parties to resort to economic action (such as strikes) without going through substantial mediation. It also provides a presidential board with authority to mediate contract negotiations and provides for a cooling-off period if necessary.

Reasonable Accommodation

The ADA requires employers to make “reasonable accommodations” to give otherwise qualified disabled persons equal opportunity to work. Accommodations are steps designed to enable the otherwise qualified individual to perform the essential functions of the job. The accommodation obligation also means that employers cannot choose a nondisabled applicant over a disabled applicant simply because the disabled applicant needs a reasonable accommodation to fulfill the requirements of the position.

Reductions in Force (RIFs)

A reduction in force is a decision by an employer to reduce its workforce by either permanently or temporarily eliminating certain jobs and discharging employees. In making the decision to eliminate jobs as part of a RIF, employers should consider the potential impact on all statutorily protected groups of employees. Employers should also be aware of the requirements of the WARN act, which may require advance notice before employees can be discharged.

References

While it is always a good idea to check prospective employees' job references, many employers choose not to provide detailed references for former employees due to defamation concerns. Rather, they generally will only confirm that the employee worked there, the dates of employment, and the job position. Some state laws treat job references as privileged, protecting employers who wish to provide more meaningful references.

Regular Rate of Pay

Used in the computation of overtime under the Fair Labor Standards Act (FLSA), an employee’s regular rate of pay includes the hourly rate, reasonable cost of meals, lodging, and other facilities provided to employees for the convenience of the employer, commission payments, shift differentials, bonuses that depend on quality, quantity, or efficiency of work and any tip credit that has been applied against the minimum wage.

Rehabilitation Act of 1973

This federal law prohibits employers with certain federal government contracts and recipients of federal financial assistance from discriminating in employment based on an individual’s disability. Section 503 of the Act requires covered government contractors and subcontractors to implement affirmative action plans to employ, advance in employment, make reasonable accommodation, and otherwise not discriminate against disabled individuals.

Religious Discrimination

Title VII prohibits discrimination on the basis of religion. Under Title VII, “[t]he term religion includes all aspects of religious observance and practice, as well as beliefs.” Religion also includes moral or ethical beliefs about what is right or wrong “which are sincerely held with the strength of traditional religious views.” If requested, employers must provide “reasonable accommodation” for the religious beliefs or practices of an employee, unless doing so would create undue hardship.

Reporting Requirements

A variety of federal and state laws require employers to report various information about newly-hired employees. For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 requires all states to establish “New Hire” reporting programs, primarily to keep track of child support obligations. Certain employers also have federal affirmative action requirements under federal law that include reporting various information about their workforces such as sex and race.

Right to Work Law

The Right to Work law is a provision in the Taft-Hartley Act of 1947 which permits states to prohibit union shops (requiring employees to join a union in order to work for the employer). Twenty-one (21) states currently have right to work laws.

Sarbanes-Oxley Act

The Sarbanes-Oxley Act of 2002 enacted and amended a number of laws. Those relating to employment include a whistleblowing provision that protects employees of publicly traded companies who provide information or assist in a federal fraud investigation. The Sarbanes-Oxley Act also requires publicly traded companies to establish audit committees, which must establish procedures for filing internal, confidential, and anonymous complaints concerning financial irregularities. The Act also contains criminal statutes that forbid the destruction, alteration, or falsification of records in federal investigations (all federal investigations, not just fraud) and bankruptcy cases. Additionally, the Act amends the obstruction of justice statute to prohibit the destruction or attempted destruction of documents with an intent to impair the document’s availability for use in an official proceeding and makes it a crime to corruptly obstruct, influence, or impede an official proceeding or attempt to do so.

Secondary Boycotts

A Secondary Boycott is an unfair labor practice (ULP) in which a union urges its members and supporters to boycott a third party, such as a retail store which stocks goods produced by the company, against which the union is striking.

Sexual Harassment

The EEOC characterizes sexual harassment as any unwelcome behavior, requests for sexual favors and other verbal or physical conduct of a sexual nature when submission to such conduct is implicitly or explicitly a term or condition of the individual's employment. Most employers would do well to think of it as any unwelcome behavior based upon or implying sex. The courts have traditionally divided sexual harassment into “quid pro quo”, which involves the exchange of sexual favors for job advancement or continuation, or “hostile environment”, in which the harassment claim is based upon an atmosphere of unwelcome sexual harassment which is not remedied by the employer. While recent case law has rejected the terms “quid pro quo” and hostile work environment in analyzing liability, these categories are still used to describe types of sexual harassment.

Smoking

Usually smoking in the workplace is governed by state legislation and/or local ordinance. Some states protect smokers, but most states restrict smoking in public and private sector workplaces. The federal government prohibits smoking in all postal buildings, and the defense department bans smoking throughout its civilian and military installations.

Serious Health Condition

Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves: inpatient care; or a period of incapacity of more than three consecutive calendar days that also involves treatment two or more times by a health care provider or treatment by a health care provider; on at least one occasion that results in a regimen of continuing treatment under the supervision of a health care provider.

Taft-Hartley Act

The Taft-Hartley Act became law over the veto of President Truman in 1947. The Act created the concept of union unfair labor practices and protects employees' rights not to engage in union activity. The Taft-Hartley act also defines the parties' obligations in collective bargaining.

Title VII of the Civil Rights Act of 1964 (“Title VII”)

Title VII makes it unlawful for an employer with 15 or more employees to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin. It also prohibits discrimination by employment agencies and labor unions. Title VII has been interpreted by courts to prohibit harassment on the basis of race, color, religion, sex, or national origin.

Trade Secrets

Many states have enacted laws which prohibit the misappropriation of trade secrets. State laws define what constitutes a trade secret, but the definition usually includes certain types of confidential information that are crucial to an employer's business. For employees who will have access to trade secrets or confidential information, a non-disclosure provision should be included in their employment contract or drafted as a separate agreement. The enforceability of any such provision will be governed by state case law.

Unfair Labor Practices (ULPs)

Various federal laws govern interactions between employers and unions, providing penalties for unfair labor practices on both sides. For example, the Wagner Act established the National Labor Relations Board and prevents employer ULPs. The Taft-Hartley Act created union ULPs, prohibiting such activities as secondary boycotts, featherbedding and restraint and coercion of employees in the exercise of their rights.

Unions

Unions are labor organizations which employees can join to collectively bargain with their employer over wages and terms and conditions of employment. Unionization often depends upon whether management has made the appropriate investments in the workforce, and treats its employees with respect, dignity, fairness and consistency. Employers should train their management on how to recognize a unionization threat and how to react. They should also train management on how to dispel employees' fears about what may happen if they do not wish to join a union.

Union Shop

A union shop is a provision in collective bargaining agreements which requires employees to join a union in order to work for the employer.

Waivers

A waiver is an employee's agreement to give up the right to file suit on a claim, usually in exchange for some benefit from the employer, such as money. Terminated employees may sign waivers as a condition of a severance package. When dealing with waivers, employers need to consider the rules governing their enforceability. For example, under the ADEA and the OWBPA, all waivers must be knowing and voluntary. Additionally, the employee must be given a specific time period in which to consider whether they wish to sign the waiver.

“White Collar” Exemption

Administrative, executive, professional, outside sales and certain computer employees are exempt from the minimum wage and overtime provisions of the FLSA under the “white collar” exemptions. The DOL’S regulations interpreting the FLSA include tests for determining when an employee should be considered exempt under the white collar exemptions and require that such employees at leas $455 per week on a salary basis.

Whistleblower

Whistleblowing loosely refers to reporting an individual for wrongdoing or wastefulness. In the employment context, employees may report employer wrongdoing and may be protected by various statutes for doing so. Additionally, many states have a public policy exception to the “employment at will” concept to protect whistleblowers.

Worker Adjustment and Retraining Notification (“WARN”) Act

The WARN Act requires covered employers to provide 60 days notice of covered plant closings and mass layoffs. The notice must be given to affected workers or their representative (usually a labor union), to the state dislocated worker unit and to the appropriate local government. Covered employers are those who employ 100 or more employees excluding certain groups. A covered plant closing occurs when a facility or operating unit is shut down for more than six months and 50 or more workers lose their jobs during a 30 day period. A mass layoff occurs when a layoff of 6 months or longer affects 500 or more workers (or 33% of the employer's workforce if the layoff affects between 50 and 499 workers). Employers who fail to give adequate WARN notice are liable to each employee for an amount equal to back pay and benefits for the period of the violation up to 60 days. The Act contains certain narrowly defined exceptions to the notice requirement.

Workers' Compensation

Workers' compensation laws vary from state to state. The state laws are designed to compensate workers who sustain an on-the-job injury. These laws are generally an employee's exclusive remedy for-on-the job injuries. Employers must carefully examine their state's laws to determine whether various tort claims, such as intentional infliction of emotional distress, are preempted by the state's workers' compensation law.

Workplace Violence

Workplace violence is a serious concern for employers. An employer that knew of an employee's violent tendencies and did nothing to protect other employees may be held liable for negligent retention. Employers should be aware, however, that some potentially violent employees may be protected by the ADA. Employers should train managers to recognize the precursors to workplace violence, and take precautions to maintain a secure workplace environment. In the aftermath of violence, employers should offer counseling services to employees.