Labor and Employment Law Overview: Federal
Author: Karen Michael, Karen Michael Consulting PLC
- The phrase "employment law" is commonly used as a catchall for all employment related legal requirements. Employment law, however, is a complex system made up of several components.
- Statutes are laws passed by Congress (the House of Representatives and the Senate, collectively) and signed into effect by the president.
- Agency rules are referred to as regulations. See Federal Agencies Governing Workplace Conduct.
- An employer may be required to simultaneously comply with federal, state and local (township or municipality) laws concerning a particular subject matter. See Key Employment Laws.
- Writing "confidential" at the top of a document does not make the document privileged. See Working With Lawyers.
- Most communications between a client and a private attorney are privileged. As it pertains to internal lawyers, however, privilege is a murky concept. See Working With Lawyers.
Acquisition. A transaction in which one organization buys all, or substantially all, of another organization's assets. See Mergers and Acquisitions: Federal.
Action plan. A written plan developed by a supervisor, in conjunction with HR. The purpose of the plan is to facilitate an open dialogue between the supervisor and an employee regarding the employee's performance issues. A well-constructed plan defines weaknesses in the employee's performance and sets expectations for future performance. Action plans are often referred to as performance improvement plans. See Performance Appraisals: Federal.
Administrative leave. Administrative leave is a general leave status that is temporary in nature. It can be paid or unpaid. Generally, administrative leave is a discretionary form of leave that an employer grants an employee under certain circumstances; it is not a traditional benefit that employees elect. See Other Leaves: Federal.
Administrative remedies. A non-judicial (out of court) remedy an administrative or regulatory agency provides to an aggrieved person.
Adverse employment action. Actions taken by an employer that have a negative impact on the terms or conditions of an individual's employment (e.g., termination, demotion, etc.). Adverse employment action must be material. Employment actions that merely inconvenience an employee are not considered adverse employment actions. Adverse employment action is also referred to as materially adverse employment action. See EEO - Discrimination: Federal; EEO - Retaliation: Federal.
Adverse impact. Refers to neutral employment practices or policies that have an unintended, negative impact on individuals in protected classes. Adverse impact is also referred to as disparate impact. See EEO - Discrimination: Federal.
Affirmative action plan. Policies and procedures designed to provide women and minorities with equal access to opportunities in employment. See EEO - Affirmative Action: Federal.
Age Discrimination in Employment Act (ADEA). A federal statute prohibiting covered employers from discriminating in employment on the basis of age. The ADEA applies to applicants and employees age 40 and over. See EEO - Discrimination: Federal.
Americans with Disabilities Act (ADA). A federal statute prohibiting covered employers from discriminating against applicants and employees with disabilities or perceived disabilities and, in some cases, requiring covered employers to provide reasonable accommodations to disabled workers. See EEO - Discrimination: Federal.
Arbitration. A dispute resolution process that is usually voluntary. In certain business sectors, however, arbitration may be required. See Arbitration: Federal.
Attorney-client privilege. A legal concept under which attorneys are prohibited from disclosing certain communications occurring between the attorney and the attorney's client. Attorney-client privilege does not apply to all communications and only applies when the purpose of the communication was to seek legal advice.
At will employment. An employment relationship under which either the employer or the employee may terminate the relationship at any time, for any lawful reason and without notice. See Employment At-Will: Federal.
Back pay. A penalty assessed by a regulatory agency, or in a lawsuit, that requires an employer to pay the wages the employee would have received if it had not been for the employer's unlawful conduct (i.e., the employer's unlawful firing or unlawful failure to promote).
Cafeteria plan. Similar to an actual cafeteria, a cafeteria plan allows employees to select benefits from a menu containing various benefit options. Typically, employees' selections may not exceed a certain dollar amount. Cafeteria plans are also referred to as Section 125 plans. See Health Care Benefits: Federal.
Charge of Discrimination. A document, often a form, completed by an applicant, employee or former employee claiming to be the victim of unlawful discriminatory practices. The form is filed with the Equal Employment Opportunity Commission (EEOC) or with a state civil rights agency and sets forth the specific facts supporting the individual's claim that unlawful discrimination has occurred.
Charging Party. An applicant, employee or former employee that has filed a Charge of Discrimination.
Civil action. A lawsuit initiated for the purpose of enforcing a civil or personal right; distinguished from a criminal prosecution. See Litigation: Federal.
Conditional offer. An offer of employment conditioned upon the applicant meeting certain preemployment requirements (i.e., passing a drug test or a successful background check). See Employment Offer: Federal.
Consolidated Omnibus Budget Reconciliation Act (COBRA). A federal statute allowing eligible employees to continue their health care coverage after the employment relationship has ended. See Health Care Continuation (COBRA): Federal.
Corporate restructuring. A corporation makes a significant change to the terms of its assets and/or liabilities, typically to ward off financial harm or to alleviate an existing strain on its assets. See Involuntary Terminations: Federal.
Covered employer. An employer covered under, or responsible for complying with, a certain law.
Damages. Monetary relief awarded to the prevailing party in a civil lawsuit. See Litigation: Federal.
Davis-Bacon Act (DBA). A federal statute that applies to contracts of more than $2,000 for the construction, alteration or repair of public buildings and public works. The statute requires that contractors working on public projects be paid a prevailing wage. See Federal Contracts.
Defendant. A person or organization sued by another in a court of law.
Deposition. The process of obtaining sworn testimony from a party to a lawsuit or a witness.
Discounted purchase programs. Employers offer employees the ability to purchase items at a discounted group rate. See Other Benefits and Services: Federal.
Discovery. The phase of litigation that occurs after the pleadings. During the discovery phase, the parties exchange documents and information and depositions are conducted.
Discrimination. Prejudicial treatment in the workplace based upon an individual's membership, or perceived membership, in a protected class. See EEO - Discrimination: Federal.
Disparate impact. See adverse impact.
Disparate treatment. Differential and unfavorable treatment in the workplace predicated upon an individual's membership, or perceived membership, in a protected class. See EEO - Discrimination: Federal.
Employee assistance program (EAP). A confidential benefit program offering employees and their families assessments, marriage counseling, grief counseling and other similar services. See Taxation of Employee Benefits: Federal.
Employee privacy. An employee's right to control whether, and how, his or her personal information is disclosed to third parties. See Employee Privacy: Federal.
Employee stock ownership plan (ESOP). Defined contribution plans that give employees the chance to own shares of the employer's stock. See Taxation of Employee Benefits: Federal.
Employment Agreement. An agreement between the employee and the employer stating the terms of the employee's employment. Employment agreements may be in writing or may be implied by the parties' conduct. See Implied contract.
Employment Eligibility Verification form. A form used to document that a newly hired employee is authorized to work in the US. Form I-9s are also referred to employment eligibility forms. See Immigration, Form I-9 and Work Visas: Federal.
Equal Pay Act of 1963. A federal law prohibiting sex-based discrimination in terms of compensation. See EEO - Discrimination: Federal.
E-Verify. An internet-based system provided by the US Department of Homeland Security, which allows employers to determine whether applicants for employment are authorized to work in the US. Some employers are required to use E-verify under state or federal law. See Immigration, Form I-9 and Work Visas: Federal.
Executive Order. A directive issued by the executive branch of government (e.g., US president or a governor of a state), which has the full force and effect of the law.
Executive Order 11246. Requires federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran.
Exhaustion of Administrative Remedies. The obligation, or right, to pursue non-judicial (out of court) remedies from an administrative or regulatory agency prior to seeking judicial (in court) relief.
Fair Credit Reporting Act (FRA). A federal statute governing the use, collection and disclosure of certain consumer information, including credit information.
Fair Labor Standards Act (FLSA). A federal statute governing the payment of wages (minimum wage and overtime) and establishing criteria for child labor.
Family Medical Leave Act (FMLA). A federal statute requiring covered employers to allow eligible employees to take unpaid, job protected leave for certain family and medical reasons. Eligible employees may continue health care benefits during the leave period. See FMLA: Federal.
Federal Insurance Contributions Act (FICA). A federal statute requiring employers to take deductions from employees' wages for social security and Medicare.
Federal Unemployment Tax Act (FUTA). A federal statute requiring organizations with employees to pay a tax which, along with state unemployment insurance systems, pays unemployment insurance benefits to employees who lose their jobs through no fault of their own. See Unemployment Insurance Tax (FUTA): Federal.
Form 1-9. See Employment Eligibility Verification form.
Front pay. A penalty assessed by an administrative or regulatory agency, or by a court of law, requiring an employer to compensate an employee from the date of the court's judgment up to the date the employee is reinstated in his or her position.
Garden leave. After an employee provides notice of his or her intent to resign as of a future date, the employer may request that the employee not return to work, but remain on payroll up to the termination date. During the period from the notice date up to the employee's termination date, the employee is on garden leave. See Other Leaves: Federal.
Garnishment of wages. Pursuant to a court order, the employer garnishes, or deducts, funds from an employee's wages and pays the funds to a third party to whom the employee owes a debt.
Hostile work environment. Workplace harassment that results in an offensive, intimidating, or oppressive atmosphere. See EEO - Harassment: Federal.
Immigration and Customs Enforcement (ICE). An investigative arm of the US Department of Homeland Security that enforces the mandatory Form I-9 program, investigates and provides enforcement against employers that hire illegal and undocumented workers and operates the E-Verify program.
Independent contractor. A worker, other than an employee, that provides services under the terms of a verbal or written agreement. Unlike an employee, employers do not exercise substantial control over how and where an independent contractor's work is performed. See Independent Contractors: Federal.
Individual retirement account (IRA). A tax management and retirement savings tool.
Intermittent Leave. The total allowable leave period is broken down into, and taken, in smaller time periods rather than being taken all at once. For instance, if an employee is entitled to 12 weeks of leave per calendar year, the employee may take three leaves of absence for four weeks each. Not all leaves may be taken intermittently.
Interpretive guidance. Information published by a regulatory agency for the purpose of providing additional insight into an agency issued regulation. Agencies provide interpretive guidance to clarify ambiguities and facilitate regulatory compliance.
Jury duty leave. A leave of absence taken by an employee for the purpose of responding to a summons for jury duty or for participating in jury duty service.
Layoff. Terminating an employee, or a group of employees, due to a lack of work or employer's financial instability. Layoffs are, technically, temporary in nature while a reduction in force is permanent. However, that distinction is rarely made and layoff and reduction in force are used interchangeably. See Involuntary Terminations: Federal.
Liability. Fault, as determined in a legal or administrative proceeding.
Litigation. The process of resolving a dispute in a court of law.
Materially adverse employment action. See adverse employment action.
McNamara-O'Hara Service Contract Act (SCA). A federal statute that applies to contracts of more than $2,500 for services such as data-processing, vehicle maintenance, relocation and more. The statute requires that contractors and subcontractors be paid a prevailing wage. For contracts less than $2,500, employers are required to comply with the minimum wage rate established in the Fair Labor Standards Act. See Federal Contracts.
Merger. A transaction combining two or more organizations to form a single organization. See Mergers and Acquisitions: Federal.
Minimum wage. A minimum hourly rate of pay employers are required to provide to certain employees. See Minimum Wage: Federal.
Mitigating damages. Taking affirmative steps to control the negative or adverse consequences arising from a third party's unlawful conduct.
National Labor Relations Act. A federal statute prohibiting employers from engaging in unfair labor practices (i.e., unlawful conduct that interferes with laborers' rights to collectively bargain, participate in certain concerted activity and to form or assist a labor union). See Unfair Labor Practices: Federal.
National Labor Relations Board. A government agency responsible for enforcing the National Labor Relations Act. See Unfair Labor Practices: Federal.
Negligent hiring. Legal theory attributing fault to employers who hire workers they knew, or with reasonable diligence should have known, were unsuitable. See Negligent Hiring: Federal.
Noncompetition agreement. An agreement between an employee and an employer stating the employee will not engage in employment competitive with the employer's business. The agreement not to compete is generally for a defined period (i.e., for six months) and limited to a defined geographic region (i.e., a particular state). See Terms of Employment: Federal.
Occupational disease. A disease contracted by an employee as a result of workplace hazards or conditions. See HR and Workplace Safety (OSHA Compliance): Federal.
Occupational Safety and Health Administration (OSHA). An agency in the US government responsible for promoting safe and healthful working conditions for wage earners. OSHA is part of the US Department of Labor. See HR and Workplace Safety (OSHA Compliance): Federal.
Occupational Safety and Health Administration Act (OSH Act).A federal statute granting employees the right to safe and healthful working conditions, the right to complain of workplace hazards and protection against workplace retaliation for reporting hazardous conditions that exist in the workplace. See HR and Workplace Safety (OSHA Compliance): Federal.
Onboarding. The initial process of integrating a newly hired employee into an organization. See Onboarding and Orientation.
Overtime compensation. An increased hourly rate of pay an employee is owed after working a certain amount of hours in a day or during a workweek. See Overtime: Federal.
Paid time off. To provide employees with greater flexibility, some employers opt to provide employees with a bank of paid days off, instead of segregating paid time off into categories such as sick days, vacation days or personal days. See Paid Time Off Benefits: Federal.
Performance appraisal. The process of evaluating an employee's job performance and determining whether the employee met the performance objectives previously established by the employer and previously communicated to the employee. Many employers conduct performance appraisals annually, but they may be conducted more frequently. See Performance Appraisals: Federal.
Performance improvement plan. See action plan.
Performance management. Overall process of communicating performance objectives to employees and ensuring performance objectives are being met throughout the organization. The process includes performance appraisals, performance improvement plans, rewards and, where necessary and appropriate, discipline. See Performance Appraisals: Federal.
Plaintiff. An individual or organization that initiates a lawsuit in court.
Pleadings. Parties to a lawsuit present claims and defenses to the court, in writing. The plaintiff presents its claims in a document referred to as a complaint and, in response, the defendant files an answer. The complaint and the answer are collectively referred as pleadings.
Position statement. An employer's written explanation created in response to a Charge of Discrimination.
Pretext for discrimination. An employer's stated purpose for engaging in certain conduct is false, and is to conceal the employer's discriminatory motives. See EEO - Discrimination: Federal.
Prevailing Wage. An hourly trade or public work rate, generally established by a regulatory agency, which should be paid to the majority of workers in a particular area. The prevailing wage rate also dictates overtime pay and benefits.
Progressive discipline. Process of systematically increasing disciplinary measures with each repeated act of employee indiscipline. See Employee Discipline: Federal.
Protected Activity. An individual who is protected from discrimination, harassment or retaliation in the workplace because the individual engaged in certain legally protected conduct (e.g., an employee who reports an employer's illegal activities to the authorities has engaged in protected activity and, as such, the employer cannot discriminate against, harass or retaliate against the employee because of the employee's protected activity). See EEO - Retaliation: Federal; Employee Discipline: Federal.
Protected Class. A class of individuals legally protected from discrimination, harassment or retaliation in the workplace based upon their membership in a certain group. See EEO - Discrimination: Federal.
Reduction in force (RIF). Terminating an employee, or a group of employees, due to a lack of work or employer's financially instability. A reduction in force is also referred to as layoff. See Involuntary Terminations: Federal.
Regulations. Rules established by an administrative or regulatory agency, which have the full force and effect of the law.
Regulatory agency. A state or local agency responsible for enforcing a state or federal statute. As part of their enforcement efforts, regulatory agencies may create rules. However, the purpose of the rules must be to facilitate the objectives of the statute the agency enforces.
Retaliation. An employer taking adverse employment action against an individual because the individual opposed discriminatory employment practices, supported a third party in their opposition of discriminatory employment practices or participated in an investigation concerning possible discriminatory employment practices. See EEO - Retaliation: Federal.
Section 125 plan. See cafeteria plan.
Sexual harassment. Unwelcome sexual advances, requests for sexual favors or other conduct of a sexual nature that creates an offensive or hostile work environment. See EEO - Harassment: Federal.
Similarly situated. Two employees that cannot be meaningfully distinguished in terms of any lawful considerations such as reporting structure, job performance, etc. See EEO - Discrimination: Federal.
Simplified Employee Pensions (SEPs). Allow employers to contribute directly to an individual retirement account or annuity established for the employee's benefit. See Taxation of Employee Benefits: Federal.
Social media. Internet-based applications designed for social interaction. See Employee Privacy: Federal.
Social security. A US social benefit program that provides assistance to individuals who are retired, disabled or unemployed.
Statute. State or local laws passed by the legislative branch of government with, or sometimes without, the executive branch's approval.
Stock options. A benefit awarded to an employee that allows the employee to purchase an employer's stock at a reduced or at a fixed rate.
Summary judgment. A court's decision to dispose of a civil action prior to trial. Summary judgment is granted when the parties agree on the important factual issues in the case and, based upon those undisputed facts, the court can only reach one conclusion. Any party to a civil action may request summary judgment from the court, but that request can only be made after discovery.
Telecommute. To work from home, or some other remote location, while using technology to connect with the office to which the employee is assigned. See Managing Employees in Special Situations: Federal.
Title VII. A federal statute that prohibits workplace discrimination based upon individuals' race, color, religion, sex or national origin. Title VII prohibits both intentional discrimination and also employment practices that have the unintended effect of discriminating against individuals based upon their race, color, religion, sex or national origin. See EEO - Discrimination: Federal.
Total rewards. A holistic strategy that addresses total compensation and not just employees' base salaries and bonus payments. Total rewards encompasses compensation, benefits, training, career development and employee recognition. See Total Rewards: Federal; Benefit Planning and Design: Federal.
Tuition reimbursement. A tuition assistance benefit offered by some employers, generally for employees to take job related classes. See Other Benefits and Services: Federal.
Unfair labor practices. Unlawful conduct, as defined under the National Labor Relations Act, which interferes with laborers' rights to collectively bargain, participate in certain concerted activity and to form, join or assist a labor union. See Unfair Labor Practices: Federal.
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). A federal statute that requires covered employers to provide unpaid leave to eligible uniformed service members. USERRA also provides uniformed service members with certain reinstatement rights and specific rights regarding continuation of health care benefits. See USERRA: Federal.
US Department of Labor (DOL). A US government agency responsible for ensuring that wage earners have adequate working conditions.
US Equal Employment Opportunity Commission (EEOC). A regulatory agency of the US government responsible for enforcing federal laws preventing discrimination in employment.
Walsh-Healey Act. A federal statute that applies to contractors working on US contracts of more than $10,000 for the manufacture or purchase of goods and supplies. The statute requires that contractor be paid the federal minimum wage and overtime compensation at the rate of time and one half the employee's regular rate for hours worked in excess of 40 hours in any workweek. The Walsh-Healey Act, is also referred to as the Walsh-Healey Public Contracts Act. See Federal Contracts.
Whistleblower. An employee who reports an employer's illegal activity to the authorities. See Employee Discipline: Federal.
Worker Adjustment and Retraining Notification Act (WARN Act). A federal statute requiring covered employers to provide 60 days' notice of a covered plant closing, or covered mass layoff, to affected workers and to the applicable state and local governments. See Involuntary Terminations: Federal.
Work-life balance. Employees have access to the tools required to perform in their jobs, while simultaneously managing responsibilities in their personal lives. Employers may implement work-life tools such as telecommuting, job sharing and flexible time arrangements to help employees achieve work-life balance. See Managing Employees in Special Situations: Federal.
Statutes vs. Regulations vs. Case Law
The phrase "employment law" is commonly used as a catchall for all employment related legal requirements. Employment law, however, is a complex system made up of several components. In the federal arena, those components include.
- Executive orders;
- Agency interpretive materials and opinions; and
- Case law.
Usually an executive order refers to a directive made by the US president, at times, to bypass the need for congressional approval. Executive orders may, however, be issued on the state and local level, as well.
Federal statutes are written laws passed by Congress (the House of Representatives and the Senate, collectively) with or, in some cases, without the president's approval. After a proposed statute receives a sufficient number of votes in Congress, it is submitted to the president for consideration. The president may approve the proposed statute or veto it. The president vetoing a proposed statute does not automatically defeat it from becoming a law. Instead, the proposed statute returns to Congress and Congress may override the president's veto. Once the statute is approved, it is memorialized or "codified" in a collection referred to as a code. (Notably, there are federal statutes that are not codified, but most permanent and substantive federal statutes are codified.) Federal statutes may be found in the United States Code (U.S.C). Within the statute itself, Congress typically assigns the tasks of interpreting and enforcing the statute to a federal agency.
The federal agency may then write rules interpreting the statute. Those agency rules are referred to as regulations. Before regulations become final:
- Proposed regulations are published in the Federal Register.
- The comment period begins.
- During the comment period, employer groups, law firms, chambers of commerce, employee special interest groups and other interested groups or individuals may comment on the proposed regulations.
- The agency reviews and evaluates the comments.
- The final regulations and responses to the comments are published in the Federal Register.
- Then the final regulations are memorialized in the Code of Federal Regulations (C.F.R.).
Regulations published in the C.F.R. are final, unless the agency subsequently proposes changes. If changes are proposed, the proposed changes are published in the Federal Register and the process starts again.
In some industries, non-governmental organizations may also pass and enforce regulations (e.g., the Financial Industry Regulatory Authority, Inc.). Typically, in those industries, employers will only be allowed to conduct business if the employer becomes a member of a certain organization. As a result of that membership, the employer must comply with the organization's regulations. With respect to the organization's members, the regulations carry the full force and weight of the law.
Navigating through statutes and regulations may seem like a daunting task. Therefore, government agencies publish interpretive guidance (e.g., opinion letters, guidance documents, etc.) and administrative decisions to assist employers in their compliance efforts. Interpretive guidance is information an agency publishes to clarify its regulations. As part of their enforcement activities, administrative may conduct hearings and issue decisions referred to as administrative decisions. Those decisions may be helpful in interpreting the law and formulating the employer's compliance efforts. Select interpretive guidance and administrative decisions may be available on an agency's website.
In addition to statutes, regulations, administrative opinions and interpretive advice, court decisions also govern the workplace. Courts make decisions based upon the facts of a specific case, prior decisions by other courts and existing laws, such as statutes and regulations. Courts will normally defer to agency regulations, but are not required to do so. If, for example, the court believes agency regulations are overreaching or misinterpret a federal statute, the court may disregard them. The decisions made by various courts come together to form case law.
Interplay Between Federal and State Employment Law
Similar to the federal process, state and local governments pass statutes and create agencies to enforce those statutes. Those agencies develop regulations interpreting the statutes. Therefore, an employer may be required to simultaneously comply with federal, state and local (township or municipality) laws concerning a particular subject matter. If federal, state and local statutes vary, the employer must comply with the law providing the greatest rights to the employee.
Mary Smith, who works for Acme Pharmaceutical Company in Washington, DC, has a baby. After the birth, Mary requests a leave of absence. Under DC law, Mary is entitled to 16 weeks of leave in a 24-month period. Under the federal Family and Medical Leave Act (FMLA), Mary is entitled to 12 weeks of leave within a 12-month period. As a result, Mary should receive 16 weeks of leave for the birth of her child because DC law provides her greater rights than the federal FMLA.
Federal Agencies Governing Workplace Conduct
Key federal agencies governing workplace conduct are:
- Equal Employment Opportunity Commission (EEOC);
- Department of Labor (DOL);
- National Labor Relations Board (NLRB); and
- Immigration and Customs Enforcement (ICE).
Employers may call those agencies directly with questions. Some employers fear that contacting a government agency will place them on the agency's radar. However, government agencies encourage employer questions and do not use information received during calls to punish the employer. In fact, government agencies are evaluated, in part, on the amount of assistance they provide to employers and the public.
Agency contact information may be found on its website. The C.F.R. also contains contact information for each federal agency. That information is at the end of the federal regulation.
Equal Employment Opportunity Commission (EEOC)
Employers with at least 15 employees must comply with EEOC laws (20 or more employees in age discrimination cases). The EEOC is responsible for enforcing federal laws making it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment is a form of illegal discrimination.
The EEOC has specific enforcement authority over:
- Title VII of the Civil Rights Act of 1964 (as amended);
- The Pregnancy Discrimination Act;
- The Equal Pay Act of 1963 (EPA);
- The Age Discrimination in Employment Act of 1967 (ADEA);
- Title I of the Americans with Disabilities Act of 1990 (ADA) (as amended);
- Sections 501 and 505 of the Rehabilitation Act of 1973; and
- The Genetic Information Nondiscrimination Act of 2008 (GINA).
EEOC laws also prohibit retaliation. See EEO - Retaliation: Federal. Retaliation occurs when an employer takes adverse, employment action against an applicant or an employee because the person engaged in a protected activity, such as complaining about discrimination or harassment, filing a complaint with the EEOC or participating in a discrimination investigation or lawsuit. Adverse employment action may include refusing to hire an applicant, terminating an employee or demoting an employee. Even a shift change or lateral transfer may be considered illegal retaliation if the job change was made because the employee engaged in a protected activity. Adverse employment action must, however, be material and cannot be action that merely inconveniences an employee. WARNING: Retaliation is one of the fastest growing claims filed with the EEOC.
Acme Company Inc.'s HR generalist receives an internal complaint that Joe Brown made repeated and inappropriate sexual advances toward an employee reporting to him. HR learns that Julie Williams may have information regarding that complaint and sets up a time to interview Julie privately. During the interview, Julie explains that Joe harassed her, as well.
Julie did not make the original complaint. However, by alerting HR to Joe's conduct and supporting the original claim, Julie has engaged in protected activity and is now a protected employee. As a protected employee, Acme cannot retaliate against Julie. Any adverse action taken against Julie (e.g., termination, lateral transfer, demotion, shift change) may be considered retaliation. If the negative action takes place closer to the protected activity, i.e., within six months to one year, there may be a greater presumption of retaliation.
In addition to the internal complaint with HR, Julie also has a right to file a discrimination charge with the EEOC. If Acme takes negative employment action against Julie because of her protected activity, Julie may also file a charge of retaliation.
Note that Julie's complaint does not entitle her to lifelong employment with Acme. Julie may be terminated, demoted or laid off for legitimate business reasons that are unrelated to the protected activity. If Acme decides to take negative action against Julie, Acme should have documentation supporting its legitimate business reasons, including any written warnings or performance improvement plans (PIPs).
Department of Labor (DOL)
The DOL has multiple agencies and sub-agencies. The major DOL sub-agencies impacting employers are the:
- Occupational Safety and Health Administration (OSHA);
- Wage and Hour Division (WHD);
- Office of Federal Contract Compliance Programs (OFCCP);
- Employee Benefits Security Administration (EBSA); and
- Veteran's Employment and Training Service (VETS).
Occupational Safety and Health Administration (OSHA)
OSHA provides compliance assistance and enforcement of the Occupational Safety and Health Act of 1970 (OSH Act). OSHA's focus is to ensure employers provide safe and healthful working conditions for employees by setting and enforcing standards and providing training, outreach, education and assistance. Much of OSHA's work is done through state OSHA agencies that provide most of the investigative work for OSH Act violations.
OSHA accepts employee complaints for unsafe and hazardous working conditions, as well as employee claims of retaliation for pursing OSH Act rights or refusing to work in hazardous or unsafe working conditions. OSHA's regulations provide requirements for safety programs, policies and protocol, as well as employer reporting requirements for certain workplace injuries.
Wage and Hour Division (WHD)
The WHD enforces multiple laws, including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).
Office of Federal Contract Compliance Programs (OFCCP)
The OFCCP's mission is to eliminate systemic discrimination with a priority on systemic compensation discrimination. The OFCCP enforces Executive Order 11246 and provides compliance assistance to employers. Executive Order 11246 applies to federal contractors and subcontractors and requires that they take "affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran".
Myth: Affirmative action refers to a systematic program of preferences and quotas.
Fact: Affirmative action does not mean preferences or quotas. Affirmative action means that, for example, employers covered by the law identify areas where minorities or women are underrepresented in certain job groups in relation to the total pool of available applicants in the group. As a result, employers reach out to minorities and women to identify qualified candidates.
The OFCCP also has specific enforcement authority over these other laws:
- Section 503 of the Rehabilitation Act. Requires certain federal contractors and their subcontractors to take affirmative action to employ and advance qualified individuals with disabilities. See EEO - Affirmative Action: Federal.
- Vietnam Era Veterans' Readjustment Assistance Act (as amended). Requires federal contractors to engage in affirmative action to employ and advance qualified special disabled veterans, veterans of the Vietnam era and certain active duty veterans. See EEO - Affirmative Action: Federal.
- Americans with Disabilities Act (as amended). Prohibits disability discrimination by private employers with 15 or more employees and most government employers and includes certain reasonable accommodation requirements. OFCCP and the EEOC share enforcement of the ADA.
Employee Benefits Security Administration (EBSA)
The EBSA enforces laws impacting private retirement plans, health plans, welfare benefit plans, plan sponsors and members of the employee benefits committee. In that regard, the EBSA oversees the Employee Retirement Income Security Act (ERISA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA) and other similar laws. The EBSA also provides employers with compliance assistance.
Veteran's Employment and Training Service (VETS)
VETS provides general education, enforcement and assistance for laws protecting veterans, including the Uniformed Services Employment and Reemployment Rights Act (USERRA).
VETS works closely with the United States Office of Special Counsel (OSC), a separate federal agency providing additional education and enforcement.
National Labor Relations Board (NLRB)
The NLRB is an independent federal agency that provides compliance assistance and enforces the National Labor Relations Act (NLRA) and related regulations and laws.
The NLRB participates in and conducts union elections, investigates claims of NLRA violations and facilitates settlements. See Alternative Dispute Resolution: Federal. The NLRB's administrative law judges handle claims, hear and decide cases, and enforce orders through the federal court system. See Employer Liability: Federal.
Immigration and Customs Enforcement (ICE)
ICE is an investigative arm of the US Department of Homeland Security. ICE enforces the mandatory Form I-9 program and investigates and provides enforcement against employers that hire illegal and undocumented workers. ICE also operates the E-Verify program.
Employment Law Hierarchy
Not all employment laws are created equal. Employers must comply with all laws, but some laws take priority over and, therefore, will dictate others. For example, in federal court, federal statutes will dictate how the court rules on a particular matter. A federal court will consider state statutes, but may disregard them if the state statute conflicts with a federal statute.
Employers must comply with laws governing their geographic location. All employers, no matter where they are located in the United States, must comply with Supreme Court decisions and with federal statutes and regulations. For the following, an employer's geographic location will determine which court decisions, state statutes and state regulations govern the employer's workplace:
- Appellate court decisions;
- District court decisions;
- State court decisions;
- State statutes;
- State regulations;
- State administrative opinions; and
- State interpretive guidance.
For example, an employer in the City of Richmond, Virginia, must comply with the following decisions and state employment agencies:
- Decisions by the 4th Circuit Court of Appeals;
- Decisions by the United States District Court for the Eastern District of Virginia;
- Decisions by the Virginia Supreme Court;
- Decisions by the Virginia Court of Appeal (if applicable - the court has limited jurisdiction);
- Decisions by the Circuit Court for the City of Richmond; and
- Administrative decisions and opinions issued by state agencies, such as the Virginia Department of Labor and Industry, Workers' Compensation Commission and Virginia Employment Commission.
Decisions and agencies will vary based upon the employer's location and subject matter. Therefore, it is very important for employers to know the specific courts governing their workplaces and the state employment related agencies. Information concerning the courts for each state is located on the US Courts website (link to external website).
Key Employment Laws
There are various employment laws affecting the workplace. At some point in their career, most HR professionals will interact with the following key employment laws:
- Title VII of the Civil Rights Act of 1964 (Title VII);
- Age Discrimination in Employment Act (ADEA);
- Older Workers Benefit Protection Act (OWBPA);
- Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA);
- Fair Labor Standards Act (FLSA);
- Family and Medical Leave Act (FMLA);
- Immigration Reform and Control Act (IRCA) and Immigration and Nationality Act (INA);
- Occupational Safety and Health Act (OSH Act);
- Sarbanes-Oxley Act (SOX);
- Uniformed Services Employment and Reemployment Rights Act (USERRA);
- Genetic Information Nondiscrimination Act (GINA); and
- National Labor Relations Act (NLRA).
Title VII of the Civil Rights Act of 1964 (Title VII)
- Applies to employers with 15 or more employees;
- Prohibits discrimination on the basis of race, color, religion, national origin and sex.
- Prohibits harassment;
- Prohibits retaliation; and
- Requires reasonable accommodations for sincerely held religious beliefs and practices.
Americans with Disabilities Act (ADA) and Americans with Disabilities Act Amendments Act (ADA and ADAAA)
The ADA and ADAAA (collectively, ADA):
- Applies to employers with 15 or more employees;
- Protects applicants and employees who are disabled and are qualified to perform the essential functions of a position with or without reasonable accommodation;
- Protects applicants and employees who are regarded as having a disability;
- Protects applicants and employees who have a record of impairment; and
- Requires that employers engage in an interactive discussion with employees to evaluate reasonable accommodation options and to provide reasonable accommodations that do not create an undue hardship on the employer.
Age Discrimination in Employment Act (ADEA)
- Applies to employers with 20 or more employees; and
- Prohibits employers from discriminating against or harassing an employee because the employee is age 40 or over; but
- Does not include a claim for reverse discrimination (i.e., discrimination against employees younger than 40).
Older Workers Benefit Protection Act (OWBPA)
The ADEA must also be considered in conjunction with the OWBPA, an amendment to the ADEA. Among other things, the OWBPA establishes standards for employers seeking releases (written promises not to sue) relating to employees' ADEA claims. OWBPA issues generally arise when an employer is:
- Implementing a reduction in force (RIF);
- Providing separation pay; and
- Paying severance contingent on a separation agreement or release.
If an employer is seeking a release of claims from an employee who is 40 or over, the OWBPA has requirements regarding the release language and signature timing. Specifically, an employee who is age 40 or over must be given:
- Twenty-one days to consider and sign the release; and
- Seven days to revoke a signed release.
If the employee is age 40 or over and is part of a RIF involving more than one employee, the employee must be given:
- Forty-five days to consider and sign the release;
- Seven days to revoke a signed release; and
- The right to know all employees who were considered for the RIF, their ages, their job titles and the employer's selection criteria. That information is generally included in an appendix to the release.
Also, the release:
- Must be written in plain English for the average individual to understand;
- Must specifically refer to rights or claims under the ADEA;
- May release current or past claims, but not future claims; and
- Must advise the employee to consult with an attorney before signing.
If an employer fails to comply with the OWBPA, the portion of the release relating to the release of ADEA claims may be considered invalid.
Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA)
COBRA applies to employers that have 20 or more employees and that provide health insurance to their employees. Under COBRA, employers must allow qualified, recently separated employees to continue their group health coverage and can charge employees the total monthly premium (plus a two percent administrative fee). State laws, referred to as mini-COBRA, may extend COBRA requirements to employers with fewer than 20 employees.
In most cases, COBRA insurance extends group coverage up to 18 months. In some instances, however, coverage may be extended up to 36 months. Employers must notify employees of their COBRA rights within a certain period after termination of employment.
Fair Labor Standards Act (FLSA)
The FLSA applies to most employers of any size and:
- Sets standards for determining whether an employee is entitled to overtime pay;
- Sets standards for calculating overtime pay; and
- Sets minimum wage requirements for employees entitled to overtime pay.
It is also important to note what the FLSA does not require, as that seems to be a point of confusion for some employers. The FLSA does not:
- Prescribe the number of hours in a day or days in a week an employee can work;
- Require overtime pay after eight or 12 hours worked in a day or after working a certain number of days in a row; or
- Require that an employer provide holiday pay, vacation pay, sick pay or fringe benefits.
The FLSA is a seemingly simple law, but, in reality, it is complex and poses significant financial risk to employers. Most FLSA compliance problems relate to:
- Misclassifying workers as exempt from overtime pay;
- Failing to pay for all working time; and
- Improperly calculating overtime pay.
Employees who must be paid minimum wage and overtime are referred to as nonexempt employees, and employees who are excluded from the minimum wage and overtime pay requirements are referred to as exempt employees. Exempt employees fall within one of the following five categories:
- White collar (administrative, executive, professional and highly compensated) exemption;
- Retail sales and service exemption;
- Outside sales exemption;
- Computer employee exemption; and
- Motor carrier exemption.
Salaried employees are not automatically exempt. The exemptions relate to the employee's duties and not the manner of compensation (salary versus hourly).
Family and Medical Leave Act (FMLA)
Employers with 50 or more employees are covered by the FMLA. The FMLA is a complex, process-driven law that provides employees with unpaid time off for:
- Serious medical conditions affecting the employee;
- Serious medical conditions affecting the employee's immediate family members (spouse, child, parent);
- The birth, adoption or placement in foster care of a child; and
- Military family leave.
Employees taking FMLA leave enjoy the following rights:
- Twelve weeks of unpaid leave taken continuously or intermittently (Note: Employers may require accrued paid leave to run concurrently with FMLA leave.);
- The option to continue health care benefits at the same level and under the same terms as other employees; and
- Reinstatement to the same position or an equivalent position.
Qualified employees taking military caregiver leave under the FMLA, may take up to 26 work weeks.
Four things HR should know about FMLA leave:
- No specific request required. Employees do not need to specifically ask for "FMLA leave." If the employee requests time off for any reason covered by the FMLA, the employer is obligated to provide leave rights and required notifications.
- Required forms.
(links to external websites)
When to Send
Send to employee within five days after determining leave request may be covered by the FMLA.
Send to employee upon determining the employee's eligibility for FMLA leave.
- Applies when employee's leave request is based upon the employee's own medical condition.
- Send to employee for completion after determining eligibility for FMLA leave.
- Employee has 15 calendar days to complete and return the form.
- Applies when employee's leave request is based upon family member's medical condition.
- Send to employee for completion after determining eligibility for FMLA leave.
- Employee has 15 calendar days to complete and return the form.
- Intermittent FMLA leave. Employees qualified for FMLA leave are not required to exhaust their leave time during a single absence. Instead, the total leave time may be broken down into smaller absences. In certain circumstances, employers are required to allow intermittent leave (i.e., for an employee's own serious health condition or to care for a spouse's, child's or parent's serious health condition). In others, an employer may voluntarily allow intermittent leave, but is not required to, such as allowing an employee to work part time after the birth of a child.
- Caution: FMLA and other related laws. The FMLA may run concurrently with the ADA and workers' compensation laws. Most states also have an equivalent state law that must be considered in conjunction with the federal FMLA. Employers must fully comply with all relevant laws, giving employees the greatest possible rights.
The FMLA includes provisions to protect employers against employee abuse of FMLA leave.
Immigration Reform and Control Act (IRCA) and Immigration and Nationality Act (INA)
IRCA requires employers to verify employee identity and employment eligibility. The accompanying regulations require employers to:
- Use the Employment Eligibility Verification Form (Form I-9);
- Document the verification process; and
- Maintain Forms I-9 for inspection.
E-Verify (link to external website), operated by the Department of Homeland Security, is an electronic method of verifying employment eligibility.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination and anti-retaliation provisions of the INA, which prohibits national original and citizenship discrimination in employment.
Occupational Safety and Health Act (OSH Act)
The OSH Act's requirements cover construction work, agriculture, maritime operations and general industry. General industry is essentially the catchall that makes the OSH Act applicable to most employers.
The OSH Act requires employers to:
- Limit workers' exposure to hazardous chemicals;
- Follow certain safe practices and use safety equipment;
- Keep the workplace free of serious recognized hazards;
- Eliminate or reduce hazards by making changes in working conditions (e.g., switching to safer chemicals, enclosing processes to trap harmful fumes or using ventilation systems to clean the air) rather than just relying on masks, gloves, ear plugs or other types of personal protective equipment (PPE);
- Inform employees about hazards through training, labels, alarms, color-coded systems, chemical information sheets and other methods;
- Keep accurate records of work related injuries and illnesses;
- Perform tests in the workplace, such as air sampling;
- Provide hearing exams or other medical tests required by OSH Act standards;
- Prominently post OSHA citations and injury and illness data;
- Prominently post the federal OSHA poster; and
- Notify OSHA within eight hours of a workplace incident in which there is a death or three or more workers go to a hospital.
Sarbanes-Oxley Act (SOX)
SOX is a financial compliance, accounting and whistleblower law regulated by the Securities and Exchange Commission (SEC). SOX is only applicable to publicly held US employers and non-US companies registered with the SEC. As it relates to HR practices, SOX prohibits employers (including its officers, employees, contractors, subcontractors or agents) from taking adverse or negative employment action against protected employees, referred to as whistleblowers.
Under SOX, protected employees are employees who report conduct the employee reasonably believes violates:
- Federal securities laws;
- SEC rules or regulations; or
- Federal laws relating to shareholder fraud.
To be protected, the employee must be engaged in one of two types of reporting:
- The employee raises the allegations of fraud to either a federal agency, member of Congress, any person with supervisory authority over the employee, or any other person working in the organization "who has authority to investigate, discover or terminate misconduct"; or
- The employee files, testifies in, participates in or otherwise assists in a proceeding relating to securities fraud.
If an employee engages in protected activity, he or she cannot be discharged, demoted, suspended, threatened, harassed or otherwise discriminated against in the terms or conditions of employment because of the protected activity. Note that SOX holds both corporations and individuals responsible.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
USERRA applies to all employers regardless of size and protects the job rights of individuals who voluntarily or involuntarily leave employment to undertake military service or certain types of service in the National Disaster Medical System. USERRA prohibits employers from discriminating against past and present members of the uniformed services and applicants to the uniformed services.
Employers may not deny any of the following to an employee based on the employee's past, present or future military status:
- Initial employment;
- Retention in employment;
- Promotion; or
- Any benefit of employment.
An employee who takes USERRA leave to perform uniformed service has a right to be reemployed in their civilian job as long as the employee:
- Ensures that the employer receives advance written or verbal notice of the employee's service;
- Spends no more than five years of cumulative service in the uniformed services while with his or her employer (certain exceptions apply);
- Returns to work or applies for reemployment in a timely manner after service; and
- Is not separated from service due to a disqualifying discharge or other than honorable conditions.
Returning service members are not just entitled to reemployment, but they are also entitled to:
- The increases in job status, pay, benefits, etc., they would have received had they not left for active duty (a legal concept known as the elevator principle);
- Elect up to 24 months of continued, employer provided health benefits for themselves and their dependents during the leave period; and
- Reinstatement to their employer provided health plan after the leave period, without waiting periods or exclusions (e.g., pre-existing condition exclusions). Exclusions for service related injuries are permissible, and reinstatement rights are not contingent upon the employee electing continued coverage during the leave period.
Employers may not retaliate against employees for exercising their USERRA rights or for participating in the USERRA enforcement process.
See USERRA: Federal.
Genetic Information Nondiscrimination Act (GINA)
With certain exceptions, GINA:
- Prohibits the use of genetic information in making employment decisions;
- Restricts employers from requesting, requiring or purchasing genetic information; and
- Places strict limitations on employers' ability to disclose genetic information.
The exceptions include:
- Inadvertent acquisitions, e.g., a manager overhears an employee speaking with a co-worker;
- Genetic information voluntarily offered as part of an employer's health or wellness program (certain exceptions apply);
- Family medical history obtained as part of the FMLA certification process (or similar state laws) for leave to care for a family member with a serious health condition;
- Genetic information acquired through commercially and publicly available documents, such as newspapers (certain exceptions apply);
- Genetic information acquired through a genetic monitoring program relative to toxic substances; and
- Certain circumstances in which the employer is in the business of DNA analysis.
Under GINA, genetic information does not include:
- Information about an employee's or an employee's family member's age or gender; or
- The fact that an applicant or employee currently has a disease or disorder. However, the fact that an applicant's or employee's family member has a disease or disorder would be considered genetic information under GINA.
John Brown, Acme Company Inc.'s chief HR officer, overhears Mary Smith discussing her mother's breast cancer with a co-worker. Mary tells the co-worker that she was being tested for the breast cancer gene. As long as John does not follow up, inquire further or use that information to take negative employment action against Mary, Acme has not violated GINA because John received the information inadvertently.
National Labor Relations Act (NLRA)
The NLRA governs most private employers and gives nonsupervisory employees the right to:
- Organize a union to negotiate employment terms and conditions with management;
- Form, join or assist a union;
- Bargain collectively through representatives chosen by employees;
- Discuss their wages, benefits and other terms and conditions of employment;
- Seek union assistance with work related complaints;
- Strike and picket, depending on the purpose or means of the strike or the picket; and
- Choose not to participate in union activity.
Under the NLRA, employers may not:
- Prohibit employees from talking about or soliciting for a union during nonworking hours (e.g., before or after work, during break times);
- Prohibit the distribution of union literature during nonworking hours or in non-work areas (e.g., parking lots or break rooms);
- Question employees about their union support or activities in a manner that discourages employees from engaging in union activity;
- Retaliate against an employee because the employee joined or supported a union, engaged in concerted activity for mutual aid and protection, or chose not to engage in any such activity;
- Threaten to close the workplace if workers choose a union to represent them;
- Promise or grant promotions, pay raises or other benefits to discourage or encourage union support;
- Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace, except under special circumstances;
- Spy on or videotape peaceful union activities and gatherings, or pretend to do so.
Employers may, however, provide facts, opinion and examples (referred to as FOE):
- Facts may include providing provisions in the union constitution that impose fines against members, showing a decline in union membership or telling employees the union will have the right to speak for employees. All of these are facts because they are documented.
- Opinions include expressing opinions such as that unions may harm employee-management communication, that unions rely on employee-management conflict or that dues are not a good expenditure of the employees' money.
- Examples may include copies of unfair labor practices charges against the union or examples of companies closing after union organization.
While the law protects employees' right to unionize, union representatives may not:
- Threaten or coerce employees in order to gain the employees' support for the union;
- Refuse to process a grievance because the employee has criticized union officials or because the employee is not a member of the union;
- Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall;
- Cause or attempt to cause an employer to discriminate against an employee because of the employee's union related activity; and
- Take adverse action against an employee because the employee has not joined or does not support the union.
The Legal and Administrative Process
Before the Legal or Administrative Process Begins
As soon as an employer realizes that a dispute may result in an administrative or legal proceeding, the employer must take steps to preserve documents and other information relating to the dispute. If, for example, an employee makes an internal discrimination complaint, HR should immediately notify the organization's lawyers because it is possible this internal complaint may result in a legal or administrative proceeding. Therefore, the employer should immediately begin to preserve documents and other information.
As a first step in the preservation process, an organization's lawyers will typically send a Legal Hold Notice. A Legal Hold Notice is a letter or email sent to employees who may have relevant information, notifying them to preserve that information until further notice. Relevant information can include paper documents, voice mails and electronic communications, such as emails, instant messages, etc.
For employment related disputes, either the head of the HR department or specific department members will receive a Legal Hold Notice. Upon receipt of the notice, the head of HR should:
- Notify the organization's lawyers of any other members in the HR department who may have information concerning the dispute;
- Notify the organization's lawyers of any other employees who may have information concerning the dispute;
- Take precautions to ensure that all information is kept in a safe, accessible place; and
- Ensure that the employee's personnel file is complete (e.g., any unfiled paperwork is added to the file).
HR should err on the side of extreme caution if there is any uncertainty about whether information is important enough to keep.
The IT department will also receive a Legal Hold Notice, instructing it to stop any automatic deletion processes. Involving the IT department is critical. If electronic records are destroyed after the employer is aware of a potential proceeding, the employer may be held responsible for spoliation of evidence, i.e., the deliberate or negligent destruction of evidence. Even if the documents were destroyed in connection with the employer's routine document retention/destruction or automatic deletion processes, the employer may be responsible for spoliation because it failed to suspend those processes.
EEOC Enforcement Process
Filing Deadlines for EEOC Laws
An applicant, employee or former employee has 180 calendar days from the act of discrimination or harassment to file a Charge of Discrimination (Charge) with the EEOC. The 180-day filing deadline is typically extended to 300 calendar days if the Charge is also covered by a local or state antidiscrimination statute. For age discrimination, that deadline is only extended for an accompanying state law, but is not extended if there is an accompanying local law only.
For harassment claims, the continuing violation theory allows courts and the EEOC to consider conduct occurring before the 180- or 300-day period. The continuing violation theory applies if the employee's harassment claim is based on a series of incidents, instead of on one particular event. The employee is, essentially, claiming that the harassment is the culmination of incidents. If there is a continuing violation, the employee has 180 or 300 days from the last act of harassment to file a Charge, and the EEOC may consider all incidents, including ones occurring before the 180- or 300-day period. For the Equal Pay Act (EPA), the employee has two years from receipt of the last discriminatory paycheck to file a claim.
Joe Brown works for a private employer in Virginia. Joe applies for a promotion. He is denied the promotion in favor of a female employee who he feels is less qualified. Virginia has an applicable state law that prohibits sex discrimination. Joe must, therefore, file a Charge of Discrimination within 300 days from the date of the discriminatory act (when he was denied the promotion).
Requirement to Exhaust Administrative Remedies
HR may hear the organization's lawyers say that an employee "failed to exhaust administrative remedies." That means:
- The law requires the employee, applicant or former employee to file a claim with a government agency before filing a lawsuit in court; and
- The individual failed to do so.
Some employment laws (such as the FMLA, FLSA, USERRA, ERISA and COBRA) do not require an administrative process before filing a lawsuit.
When it comes to the laws enforced by the EEOC, other than the EPA, an employee, applicant or former employee must exhaust his or her administrative remedies by filing a Charge with the EEOC before filing a lawsuit in court. EEOC rights must be pursued by certain deadlines established by statute.
If a former employee, current employee or an applicant (also known as the Charging Party) files a Charge with the EEOC, the EEOC may either dismiss the Charge or process it for further handling. If the EEOC dismisses a Charge it is generally because the Charging Party missed the filing deadline or failed to follow some other procedural requirement. If the Charge is filed on or before the filing deadline and all other procedural requirements have been satisfied, the EEOC will typically submit a copy of the Charge to the employer with a deadline to respond.
Responding to a Charge
The employer will generally respond by submitting a written document opposing the claims made in the Charge. The employer's written response is called its position statement. To prepare a position statement, the employer will likely need to gather documents and interview employees, which takes time. If the employer cannot respond by the EEOC's deadline, the employer may request an extension from the EEOC. The EEOC routinely grants reasonable requests for an extension (e.g., two weeks).
The EEOC may offer the employer and the Charging Party the option of participating in mediation instead of the employer filing a position statement. An employer may also request mediation. Mediation is generally appropriate when the employer is willing to offer the Charging Party a payment. When an employer opts for mediation, the EEOC may extend or suspend the employer's time to file a position statement. If the employer and Charging Party fail to reach an agreement during mediation, the employer will need to submit a position statement at that time.
According to the EEOC, its mediation and investigative divisions do not interact regarding claims and handle claims separately.
EEOC Investigation of Charge
Once the EEOC has received the position statement, it will investigate the Charge. That investigation usually includes a fact finding conference at the local EEOC office, where the employer and the Charging Party are given the opportunity to provide additional details and present witnesses. The EEOC may also conduct an on-site investigation, during which it will review mandatory legal postings and personnel files and may conduct on-site witness interviews. Management level employees are entitled to legal representation for that interview. Non-management employees are not required to submit to an EEOC interview, but if they do, they may not be retaliated against for it.
After the EEOC has investigated the matter, it will issue a determination of "probable cause" (also referred to as "reasonable cause") or of "no probable cause." A probable cause determination means the EEOC has reasonable cause to believe discrimination occurred, and the EEOC may sue on the Charging Party's behalf. However, the EEOC is not obligated to do so and may opt to issue a Right to Sue letter instead, giving the Charging Party the right to have his or her claims heard in court. The EEOC rarely sues on a Charging Party's behalf.
If the EEOC issues a no probable cause letter that does not mean the Charging Party's claims cannot move forward. Instead, it means that, based upon the facts presented to it, the EEOC finds no probable cause for the Charging Party's claims. In that case, the EEOC will still issue a Right to Sue letter, and the Charging Party will still be entitled to sue in court. A Charging Party has 90 days after receiving a Right to Sue letter to file a lawsuit.
Before the EEOC issues a probable cause finding, it may try to resolve the matter first. If the EEOC issues a probable cause finding, it may still attempt to resolve the matter and seek the employer's agreement to enter into a conciliation agreement or consent agreement. Both are types of settlement agreements in which the employer generally agrees to comply with certain reporting and notice requirements and to provide some relief to the Charging Party, such as payment, back wages, job reinstatement, etc.
Federal Court System
The US court system is broken down into two parts - the federal court system and the state court system. Each court only has authority over certain matters. That authority is determined by geographic area or topics. An area over which a court has authority is referred to as the court's jurisdiction.
The federal courts have jurisdiction over various disputes, including those involving federal employment laws, such as the FMLA, FLSA, USERRA, ERISA, COBRA and EEOC laws. For EEOC laws (other than the EPA), the applicant, employee or former employee may only bring an action in federal court after receiving a Right to Sue letter from the EEOC. After receiving that letter, the employee has 90 days to commence a lawsuit. For the FMLA, FLSA, USERRA, ERISA, COBRA and EPA, an individual may file a lawsuit in federal court without participating in an administrative process with a government agency. A person who sues in federal court may file in federal district court for their geographic area. There are 94 federal district courts.
Similar to their EEOC rights, employees must pursue their rights in court by certain statutory deadlines, referred to as the statute of limitations (SOL). The SOL for certain key employment laws are provided below:
|Law||Federally Mandated Statute of Limitations|
Fair Labor Standards Act (FLSA)
Two years; three years for a deliberate/willful act.
Family and Medical Leave Act (FMLA)
Two years; three years for a deliberate/willful act.
Employee Retirement Income Security Act (ERISA)
Three years after act is discovered.
Uniformed Services Employment And Reemployment Rights Act of 1994 (USERRA)
No statute of limitations.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
No statute of limitations, but state statute of limitations may apply.
Equal Pay Act (EPA)
Two years from the last discriminatory paycheck.
The process in federal court is as follows:
- Complaint. A former employee, current employee or applicant files a complaint with the court and pays applicable filing fees. The person filing the complaint is the plaintiff. The person or company the claim is filed against is the defendant. The complaint outlines the plaintiff's claims against the defendant.
- Service of Process. After the complaint has been filed, the complaint is served by delivering the complaint and a summons (citation to appear in court) to the defendant. Service may be arranged a number of ways, including through the court or through an independent party known as a service processor.
- Answer or Motion to Dismiss. The defendant generally has 20 days to file a response to the complaint (exceptions apply), appropriately referred to as an "answer." The defendant may ask the plaintiff for an extension of time to answer. If the defendant has related claims against the plaintiff, the defendant may file a counterclaim, which is essentially defendant's complaint against the plaintiff.
Instead of, or in addition to, filing an answer, the defendant may file a motion to dismiss the complaint. A motion is a request that a court take specific action. A motion to dismiss is a request that a complaint be dismissed because even if everything stated in it is 100 percent true, judicial intervention is not warranted.
If the motion to dismiss is granted, the matter is concluded unless the plaintiff either files a motion asking the court to reconsider its decision or files an appeal asking a higher court to review the decision. Motions to dismiss are rarely granted because the court wants to give the plaintiff an opportunity to participate in discovery.
- Discovery. After an answer is filed (or the motion to dismiss is denied), the discovery process begins. During discovery, the plaintiff and defendant submit written questions to each other (interrogatories), request documents and other information and conduct depositions. During depositions, a witness answers questions under oath in front of a court reporter. The court reporter memorializes the answers in a transcript, which is made available to both parties.
- Summary Judgment. At the end of the discovery process, either party may file a motion for summary judgment. A summary judgment motion is a request that the court resolve the matter in favor of the party filing the summary judgment motion. The person filing a summary judgment motion is essentially saying, "Judge, all the facts are in, none of the important ones are disputed and based upon those undisputed facts, the matter should be resolved in my favor." If the motion is granted, the matter is resolved, unless there is an appeal. If the motion is not granted, the matter will continue to trial.
- Trial. Most cases are settled before trial, but a few go to trial where a determination is made regarding responsibility and damages.
- Appeal. The losing party may appeal to the appropriate US court of appeals. At this level, the parties may not offer new evidence or facts. If the appeals court finds a basis for the appeal, it may send the matter back to the trial court with instructions. If the appeals court finds no basis for the appeal, it will advise accordingly, and the matter is concluded.
- Writ of Certiorari. The losing party in the appeals court may ask the Supreme Court to review the matter. Writs are rarely granted and are reserved for significant legal, Constitutional or other type disputes. It takes a long time for a case to get to the Supreme Court.
The cost of litigation is high in terms of attorney costs and the loss of productivity caused by employees gathering information, submitting to depositions, etc. Therefore, many companies settle claims, not because of any wrongdoing, but to avoid the cost and uncertainty of litigation.
Alternative Dispute Methods
There are several methods of resolving controversies without litigation. Those methods are often referred to as alternative dispute methods and consist of the following:
- Binding arbitration; and
- Nonbinding arbitration.
In mediation, an independent third party, hired by the parties or assigned by the court, assists the parties in resolving their dispute. Customarily, the mediation process is as follows:
- Each party makes a brief statement explaining their side of things.
- The parties are separated into different rooms.
- The mediator will meet privately with each side to determine the major issues in dispute and will try to determine what it will take to resolve the matter. Generally, the mediator will seek permission before sharing information with the other side.
- The mediator will go back and forth in those private meetings, trying to bring the parties toward a resolution.
Mediation is voluntary, but some courts may require it or it may be required in an agreement between the parties. For example, some business contracts will require that the parties mediate prior to commencing a lawsuit. Some mediations are free (e.g., mediation with a federal magistrate as part of a pending federal court case and EEOC mediations), but others are not. The parties may split mediation fees, one party may pay the costs or, if the mediation results in a settlement payment, the fees may be deducted from that payment.
During arbitration, the parties present their case to either a single arbitrator or a panel of arbitrators. The arbitrator(s) will then render a decision on the outcome, which is binding on the parties. Binding arbitration in employment matters will generally occur if the parties have previously agreed to binding arbitration. In general, an employee's agreement to binding arbitration in exchange for continued employment is lawful.
In a binding arbitration, the parties have agreed to forgo litigating the matter in federal court. The parties exchange some information (less than that exchanged during the discovery process in court) and prepare a written statement outlining their position. Similar to a trial, the parties present opening statements, witnesses and evidence and conduct closing statements. At the conclusion, the arbitrator(s) will render a binding, written decision.
Binding arbitration is less formal than a court proceeding, and while the parties must pay for the process, it is less expensive than litigation. Some arbitrators base their decisions on what they consider to be fair, rather than on the strict letter of the law.
The process for nonbinding arbitration is essentially the same as the process for binding arbitration. However, in a nonbinding arbitration, the parties are not bound by the decision. This practice is not very common in the employment setting.
Working With Lawyers
Lawyers are an important part of an employer's risk management and avoidance strategy. Some companies have internal lawyers. Others do not and hire private lawyers as needed.
Private lawyers are expensive. Attorney fees vary, but can cost between $250 and $600 per hour. Due to their experience, law firm partners are more expensive than non-partners and junior level attorneys. Therefore, when reaching out to a private lawyer, employers will want to ensure that they are speaking to the right person and that the law firm staffs their matter appropriately. For example, the partner should not be making copies, handling routine tasks (e.g., drafting a complaint or an answer) or providing counseling on a straightforward issue.
HR should also engage in an ongoing dialogue with internal or external lawyers regarding risk management and prevention and should consistently consult with lawyers regarding most non-routine HR issues, including employee complaints, employee misconduct and discipline, leaves, training, developing work rules, internal investigations, etc.
Writing "confidential" at the top of a document does not make the document privileged. Written or oral communications between a lawyer and the lawyer's client are privileged and may not be disclosed to third parties, as long as the purpose of the communication is legal advice or counsel. That privilege belongs to the client and is highly valuable because it gives the client a chance to freely provide information, knowing the attorney cannot disclose it without the client's permission or a court order.
With respect to a company or other organization, the organization itself is the lawyer's client. An organization, however, acts through its employees. Therefore, if the purpose of a communication between an organization's employee and the organization's lawyer is for the purpose of obtaining, seeking or providing legal advice, the communication will be privileged if the employee is acting within the scope of his or her job duties.
Most communications between a client and a private attorney are privileged. As it pertains to internal lawyers, however, privilege is a murky concept. If an internal lawyer has dual roles within the organization (e.g., general counsel and chief operating officer) or routinely offers business advice, not all communications are privileged. In determining whether a communication is privileged, the communication should be reviewed to determine if its primary purpose is to provide business advice or to provide legal advice. If the primary purpose is legal advice, the communication is privileged. If it is business advice, the communication may not be privileged. Non-privileged communications may be disclosed to others, and the employer may be forced to disclose those communications during a legal or administrative proceeding.
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