U.S. Legal Forms, Inc.
Multi-state
Employment Law Handbook
* * *
A general guide to the rights, protections and benefits provided employees by the United
States Government.
©2003 U.S. Legal Forms, Inc. All rights reserved.
This Handbook was developed by U.S. Legal Forms, Inc. (USLF), is protected by copyright, and may not
be reprinted, distributed or displayed by any means without the express written consent of USLF.
U.S. Legal Forms, Inc.
Multi-state Employment Law Handbook
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 1
Overview .......................................................................................................................................... 2
Important Distinctions ..................................................................................................................... 3
I. Wages, Hours, Leaves and Child Labor ................................................................................. 4
A. Minimum Wage ............................................................................................................... 4
B. Overtime Payment ........................................................................................................... 5
C. The Family and Medical Leave Act ................................................................................ 5
D. Polygraph Protection Act ................................................................................................ 7
E. Garnishment of Wages .................................................................................................... 7
F. Employment of Minors ................................................................................................... 7
G. Equal Pay ......................................................................................................................... 8
II. Discrimination in Hiring, Promoting, Discharging and Other Terms/Conditions of
Employment/Retirement ......................................................................................................... 9
A. Discrimination based on race, sex, color, national origin or religion ............................. 9
B. Age Discrimination ....................................................................................................... 10
C. Discriminating Against the Disabled ............................................................................. 10
D. Immigrant Discrimination ............................................................................................. 11
III. Protections/Rights Provided At The Termination of Employment ....................................... 12
A. Removal for Just Cause Only ........................................................................................ 12
B. Plant Closings and Layoffs ........................................................................................... 12
C. Jury Duty ....................................................................................................................... 12
D. Re-Employment for Members of the Armed Forces ..................................................... 13
E. Health Insurance After Termination .............................................................................. 13
F. Unemployment Insurance ............................................................................................. 13
IV. Pension Plans and Retirement Benefits ................................................................................ 13
A. Private Employee Pension Plans ................................................................................... 14
B. Public Retirement Benefit Plans ................................................................................... 15
V. Workplace Safety .................................................................................................................. 16
A. Whistleblower Protection .............................................................................................. 16
B. Protection for Refusing to perform hazardous/deadly work tasks ................................ 16
VI. Workers Compensation ......................................................................................................... 17
A. The Federal Employment Compensation Act ............................................................... 17
B. The Federal Employment Liability Act (FELA) ........................................................... 18
C. The Longshore and Harbor Workers' Compensation Act (LHWCA) ........................... 18
D. The Black Lung Benefits Act ........................................................................................ 18
E. Social Security Disability Insurance ............................................................................. 18
VII. Additional Rights/Protections Provided to Public Sector Employees .................................. 19
A. Employer’s Obligation to Give Veterans' Preference .................................................... 19
B. Affirmative Action ........................................................................................................ 19
C. Drug Free Workplace .................................................................................................... 19
D. State Specific Civil Service Rules ................................................................................. 20
VIII. Unions and Labor Organizations .......................................................................................... 20
A. Unions and Employers .................................................................................................. 20
B. Unions and Their Members ........................................................................................... 20
C. Grievances/Complaints of Unfair Labor Practices ........................................................ 21
D. Railway and Airline Employees .................................................................................... 21
E. Public Sector Employees ............................................................................................... 21
APPENDIX .................................................................................................................................... 23
INTRODUCTION
This is a general Handbook, containing summaries of the rights, protections and benefits offered
to employees under federal employment laws in the United States. Keep in mind that the laws,
programs and services outlined in this Handbook are being constantly revised and changed so
this Handbook is only intended as a general overview. As a result, you should not rely on this
Handbook to make legal decisions concerning your specific situation. Instead, you should only
rely on this Handbook to alert you to the fact that someone may have violated one of your legal
rights, that you may obtain assistance in protecting yourself from further violations and that you
may be able to gain informational or financial assistance. The sections of this Handbook may be
used as a starting place from which to discuss your situation with a state agency or local attorney.
Of note is that federal departments and agencies administer and enforce the majority of the
federal employment laws. The Appendix of this Handbook contains contact information or web
site links for the principal departments and agencies.
THIS HANDBOOK IS NOT A LEGAL DOCUMENT, and is not intended as a substitute for
seeking legal advice from an attorney or other qualified professional.
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OVERVIEW
The term employment law refers to a collection of different laws, regulations, agreements and
practices that govern the employee-employer relationship, employee rights, employee benefits
and insurance, workplace safety/injuries, and unions. At the national level, employment law is
composed of several different federal laws and civil service rules. State employment laws,
collective bargaining agreements, contracts, company personnel handbooks, and private
employer practices supplement federal employment law. Since state laws vary from state to
state, this Handbook focuses on federal employment laws and identifies the
agencies/departments that administer and enforce these laws. An Appendix at the end of the
Handbook contains some contact information for the principal departments, agencies and/or
program offices that administer and enforce federal employment law.
Of note is that most of the federal employment laws do not apply to employees or employers of
small businesses that employ less than 15 employees. The Small Business Act (SBA) however
does apply to business that are this small. The Department of Labor’s Office of Small Business
Programs can provide more information about employee rights and employer obligations.
Contact information for Regional and Local Office’s of the Small Business Administration can
be found in the blue pages of your local telephone directory. If you are the owner of a small
business who believes you have been treated unfairly by government agencies or subjected to
unnecessarily burdensome regulation you can file a comment/complaint with your state’s Small
Business Administration Ombudsman Office which will investigate your comment/complaint
and, if appropriate, take remedial action. Employees of small business can refer to state
employment, labor and constitutional laws for protection against any unfair labor practices
engaged in by their employer.
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IMPORTANT DISTINCTIONS
The distinction between employee, part-time employee, temporary employee, and independent
contractor are very important as the protections and rights of federal employment laws apply
only to employees and to part-time employees in certain instances.
Employee . A person is considered a employee when the employer controls, directs and
supervises the individual in the performance of his or her work, supplies the tools/materials
needed to perform the work and provides a place such as an office or desk where the person
performs his/her work. Another indication that a person is an employee is that the person
receives a regular wage or salary and is paid by a payroll check.
Part-Time Employee . As a general rule a person who meets the indicia of an employee but
does not work a full work week (usually less than thirty hours per week) is a part-time employee.
Part-time employees are not covered by all of the federal employment laws as some require that
the employee work a minimum number of hours per week.
Temporary Employee . When a person who registers with an employment agency which then
finds temporary employment for that person with a third party, that person becomes the
employee of the temporary agency and not the third party employer. As such, that person can
exercise the rights granted by the employment laws vis a vis the temporary employment agency.
Independent Contractors . If a person works for an employer on a per project basis, the
employer merely specifies the result to be achieved, the person uses personal judgment and
discretion in how to perform the work, the person supplies their own materials/tools, and the
person performs the work in their own workspace then that individual is as a general rule an
independent contractor. Other indications that a person works as an independent contractor are
that the employer pays on per project basis, does not withhold taxes from the payments,
payments are not issued as payroll checks and the employer furnishes the person with a 1099
Form at the end of the year. As a general rule, independent contractors are not protected by
federal employment laws.
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I. Wages, Hours, Leaves and Child Labor
The Fair Labor Standards Act mandates minimum wage requirements, overtime payment
requirements, leave requirements, child labor prohibitions and other protections for employees
who work in the private as well as in the public sector. Domestic workers are covered by the
Act. While live-in companions for the elderly or babysitters are not entitled to an hourly
minimum wage, they are still entitled to overtime payments. ( See 29 C.F.R. § 552.100).
Certain categories of employees are excluded from the right to receive a minimum wage and
overtime payments. Some of the more widely recognized categories of employees are
executives, doctors, lawyers, academic administrative personnel, teachers in elementary or
secondary schools, outside salespersons, summer camp workers, and amusement park workers
who work 7 or less months per year. (See 29 U.S.C. § 215). For a complete listing of exempt
employees refer to the Act itself.
The Fair Labor and Standards Act is administered by the Wage and Hour Division of the
Department of Labor, Employment Standards Administration. If you believe that any of your
rights under the Fair Labor and Standards Act have been violated by your employer, you can file
a complaint with the Department of Labor or file a private law suit. If you file a complaint with
the Department of Labor, Division of Wages and Hours, the Secretary of the Department of
Labor may bring an action in a court on your behalf to recover the amount of any unpaid wages
or overtime compensation and an equal amount as liquidated damages. You can join the action
filed as co-plaintiff with or without counsel of your choice if you would like to participate
directly in the action. (See 29 U.S.C. § 216). W hile you can recover up to twice the amount of
unpaid wages or overtime for an alleged violation of the Fair Labor Standards Act, you can
receive unpaid wages along with punitive and/or compensatory damages for an alleged violation
of a non-discrimination law noted below. So you should consult with an attorney to determine
whether you want to allege violation of the Fair Labor Standards Act or violation of a non-
discrimination statute. Of note is that the Fair Labor Standards Act provides that an employee
cannot be discharged or in any other manner discriminated against by his/her employer because
s/he has filed any complaint with the Department of Labor, instituted or caused to be instituted a
private law suit, or has testified or is about to testify regarding an alleged violation of this federal
law. (See 29 U.S.C. § 215).
A. Minimum Wage
The federal Fair Labor Standards Act mandates that employees receive no less than $5.15 an
hour (this is commonly called the minimum wage). (See 29 U.S.C. § 206(a)). Of note is that
employers can pay newly hired employees who are under 20 years of age $4.25 per hour for
the first 90 consecutive calendar days after such employee is hired. (See 29 U.S.C. § 206(g)).
Additionally, employers who hire learners, apprentices, and messengers employed primarily
to deliver letters and messages under special certificates are not obligated to pay these
employees the minimum wage stated above.
Students : Employers who hire students pursuant to Department of Labor certificates
need only pay them the greater of 85% of the minimum wage rate or (i)$1.60 per hour if
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employed in retail or service, (ii) $1.30 an hour if employed in any occupation in
agriculture, or (iii) $1.60 an hour if the students are enrolled in and employed by the same
institution of higher education. ( See 29 U.S.C. § 214(b)).
While most state minimum wage laws mirror the federal law, some state laws mandate a
different amount. If the minimum wage law of the state where you reside provides for a
higher or lower minimum wage rate, then your employer is obligated to pay the amount
mandated by the state law. (See 29 U.S.C. § 218).
B. Overtime Payment
As a general rule the Fair Labor Standards Act provides that employees who work more than
40 hours per work week receive overtime payment for each additional hour in excess of forty
at minimum rate of one and one-half times the employee’s regular rate. (See 29 U.S.C.
§ 207(a)). Of note is that employees of a public agency which is a State, a political
subdivision of a State, or an interstate governmental agency may receive instead of overtime
payment compensatory time off at a rate not less than one and one-half hours for each hour
worked in excess of forty hours in one week. (See 29 U.S.C. § 207(o)).
C. The Family and Medical Leave Act
The Family and Medical Leave Act permits an eligible employee to take job-protected leave
(meaning you are entitled to get your job back when you return) “(1) to care for a newborn
child or a newly placed adopted or foster care child, (2) to care for a family member (child,
spouse, or parent) with a serious health condition, or (3) because the employee's own serious
health condition makes the employee unable to perform the functions of his or her job.” (See
29 C.F.R. § 825.100). The right to take leave expires one year after the onset of the birth,
adoption or foster care placement of a child or children with the employee. (See 29 U.S.C.
§ 2612). In addition, if an employee is taking leave due to the birth, adoption or placement of
a child, the employee should give his employer thirty (30) day prior notice along with the
foreseen dates of his/her leave. If a thirty (30) day notice is not provided, the employee
should give the employer reasonable notice. (See 29 U.S.C. § 2612). Keep in mind that if a
thirty day notice is not given, the employer can delay the start of the leave until thirty days
has passed. (29 C.F.R. § 825.312).
Length of Leave . The length of leave permitted under the statute is 12 workweeks during
any 12-month period. If leave is taken due to the birth, adoption or placement of a child and
both parents work for the same employer, the total length of leave they can take is still 12
workweeks. (See 29 U.S.C. § 2612).
Structure/Schedule of Leave . Employees can take the 12 weeks of leave all at once,
intermittently or on a reduced leave schedule. (Under a reduced leave schedule the employee
continues to work but works fewer hours per week or per day). If the employee is taking
leave for planned medical treatment, the employee can take leave intermittently or on a
reduced leave schedule as long as he or she informs his employer ahead of time of the dates
on which such treatment is expected to be given and the duration of such treatment. (See 29
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U.S.C. § 2613(b)(5)). If the employee is taking leave due to the birth, adoption or foster care
placement of a child, the employee does not have the right to take the 12 week period of
leave intermittently or on a reduced leave schedule. Naturally, the Act permits employers
and employees to agree to a reduced leave schedule or intermittent leave if they chose to do
so and agree to it. (See 29 U.S.C. § 2612).
The Family and Medical Leave Act applies to all employers who engage in commerce and
employ 50 or more employees for each working day during each of the 20 or more calendar
workweeks in the current or preceding calendar year. (29 C.F.R. § 825.104). Employees of
employers who are governed by this Act are eligible to take leave under the Act if he or she:
(1) has been employed by the employer for at least 12 months, (2) has been employed for at
least 1,250 hours of service during the 12-month period immediately preceding the
commencement of the leave, and (3) is employed at a worksite where 50 or more employees
are employed within 75 miles of that worksite. The 12 month period need not be made up of
consecutive months. Temporary or Part-time employees may still be eligible to take leave.
(See 29 C.F.R. § 825.110).
Of note is that an employee who takes family or medical leave is entitled to return to work
after the leave to the same or equivalent job at the same compensation level. In addition, an
employee who takes a family or medical leave is entitled to receive the same benefits they
received before the leave both during and after the leave. Benefits as defined under the Act
include group life insurance, health insurance, disability insurance, sick leave, annual leave,
educational benefits, and pensions. (See 29 C.F.R. § 825.100) & (See 29 U.S.C. § 2611).
Further, if a medical leave is to be taken, a certification from a doctor stating the dates that
the employee suffered an illness/underwent treatment may be required by the employer
before letting the employee take leave. (See 29 U.S.C. § 2612). Likewise, when a medical
leave is taken, a certification from a doctor stating that the employee is fit to return to work
can and may be required by the employer before letting the employee return to work. (29
C.F.R. § 825.312).
If your right to family or medical leave has been violated you can file a complaint with the
Secretary of Labor, or file a private lawsuit in civil court. A complaint filed with the
Secretary can be done in person, by mail or by telephone, with the l office of the Wage and
Hour Division, Employment Standards Administration, of the U.S. Department of Labor. Of
note is that if you file a complaint or bring a private law suit, you must do so within two
years of the first violation or three years if the violation was willful. (See 29 C.F.R.
§ 825.401). If your employer is found to have violated the Family and Medical Leave Act, a
court may award you wages, employment benefits, other compensation denied or lost, and/or
the cost of providing care. (See 29 C.F.R. § 825.400).
Many states have their own Family and Medical Leave Laws which can offer more or less
time, etc. to the employee taking leave. Employers who are covered, must abide by state
laws so the employee has the option of taking federal or state mandated leaves and need not
inform his/her employer of which leave has been taken. However, if you elect to take a leave
mandated by state law, you may not file a complaint with Department of Labor if you believe
your rights under the state law were violated. (See 29 C.F.R. § 825.400). Finally, if you are
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not covered by the Family and Medical Leave Act, Federal non-discrimination statutes such
as Title VII may still provide the protection/relief you require.
D. Polygraph Protection Act
The Employee Polygraph Protection Act prohibits employers from (1) Requiring, requesting,
suggesting or causing any employee to take a lie detector test to remain employed or as part
of the hiring process; (2) Using, accepting, or inquiring about the results of a lie detector test
of any employee or prospective employee; and (3) Discharging, disciplining, denying
employment or promotion, or threatening to take any of these actions as a result of the
employee refusing to take a lie detector test or because of the results of a lies detector test
taken. One exception to this rule is that an employer can co-operate with law enforcement
personnel or police who, during the course of an investigation into an alleged theft or other
crime, require employees suspected of involvement to submit to a polygraph/lie detector test.
(See 29 C.F.R. 801.4).
Like the Fair Labor and Standards Act this Act applies to private and public sector employers
engaged in significant interstate commerce. While the law states businesses must earn more
than $500,000 per year, businesses and agencies which earn less are often still governed. The
Polygraph Protection Act however does not apply to Federal, State, and local government
entities with respect to their own public employees. (See 29 C.F.R. 801.10).
E. Garnishment of Wages
A garnishment is a legal instrument that permits a creditor to whom the employee owes a
debt to withhold monies from the employee’s paycheck and use those monies to pay down
the debt owed. The Consumer Credit Protection Act and the Fair Labor Standards Act
provide protections for workers whose paychecks are being garnished. Pursuant to these
federal statutes, the Administrator of the Wages and Hours Division of the Department of
Labor assures, among other things, that no more than 25% of the employee’s disposable
earnings for that week or the amount by which his disposable earnings for that week exceeds
a certain multiple (whichever amount is smaller) is taken from the paycheck by the creditor.
Keep in mind however that the garnishment restriction does not apply to amounts withheld
for State or Federal taxes or amounts withheld in Chapter 13 Bankruptcies and the
restrictions are relaxed when it comes to withholding monies for child support and alimony
payments. In addition, the Administrator of the Wages and Hours Division does not
determine which creditors are paid first from garnished wages. (See 29 C.F.R. 807.1, 10 &
11).
F. Employment of Minors
Child Labor Laws regulate the employment of children in the United States at the national
level. Briefly, in the United States children between sixteen and eighteen years of age are
permitted to work in non-hazardous occupations and are permitted to work hours that do not
interfere with their schooling. Children between the ages of fourteen and sixteen years of age
may work in occupations that the Secretary of Labor has deemed are confined to periods of
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time that will not interfere with their schooling and to conditions which will not interfere
with their health and well-being. A common example of such an occupation would be a
summer camp counselor, a summer intern or a farm hand during harvest. (See 29 U.S.C.
§ 212). Of note is that employees under 17 years of age, including farm hands, may not drive
automobiles or trucks on public roadways. (See 29 U.S.C. § 213). Finally, as a general rule,
children under fourteen are not permitted to work aside from working on farms, delivering
newspapers or other similar activity. For Children ten and eleven years old to assist in
harvesting crops the employer/parents must write a letter asking for a waiver of the
prohibition six weeks prior to harvest to the Administrator of the Wage and Hour Division,
Employment Standards Administration, United States Department of Labor, Washington, DC
20210.
Of note is that the child labor requirements of the Fair Labor Standards Act do not apply to
children who are: (i) employed as actor/performers in films, plays or in radio or television
productions; (ii) under sixteen years of age who live with and are employed by their parents;
and (iii) working on farms under certain circumstances. For employment on farms the child
labor laws do not apply to: (1) children under twelve who are employed by their parents or a
person acting as their parent to work on their farm outside of school hours for the school
district where the child(ren) lives; (2) children under twelve who are employed, with their
parents’ consent, on a farm exempt from wage rate regulation; (3) children twelve or thirteen
years of age who are employed to work on a farm with their parents consent or are employed
to work on the same farm as their parents; (4) children sixteen years of age or older who are
employed in agriculture during school hours for the school district in which the employed
minor is living at the time; or (5) children who are fourteen years of age who are employed in
agriculture outside school hours for the school district where the child lives while so
employed. Of note is that even if the Secretary of Labor has found that a certain type of
work is particularly hazardous for children under the age of sixteen, the children’s
employment is not subject to child labor laws as long as the child or children are employed
by their parent or by a person standing in the place of his parent on a farm owned or operated
by such parent or person. (See 29 U.S.C. § 213(c)).
Keep in mind that many states have their own child labor laws. If the requirements of state
child labor laws limit permissible work for children more than the federal laws do, then
employers must abide by the state laws. For example, New York state requires children
under sixteen years of age to obtain permits in order to work as camp counselors. To find out
the specific requirements of your state, you should contact the Regional Department of Labor
Office in your area which is listed in the blue pages of the telephone directory.
G. Equal Pay
The Equal Pay Act requires that employers pay employees of different sexes at the same rate
of pay as long as the employees perform the same work that requires equal skill, effort, and
responsibility, and the employees perform the work under similar working conditions. Keep
in mind however, employers are allowed to pay employees different wage rates as long as the
differences are not based on sex and are instead based on either (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of production; or
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(iv) any other legitimate factor other than sex. (See 29 U.S.C. Section 206(d)) . The Equal
Pay Act is enforced by the Equal Employment Opportunity Commission and applies to
employers who engage in interstate commerce, and earn at least $500,000 per year (this last
requirement is not always necessary). If you believe that you have received unequal pay due
to his/her gender you can file a complaint with the Department of Labor, Division of Wages
and Hours or file a private law suit under a federal or state non-discrimination statute. While
a violation of the Equal Pay Act may result in the employee recovering up to twice the
amount of wages withheld (See 29 U.S.C. Section 206(d)), a violation of a non-
discrimination statute can result in the employee receiving a larger amount (lost wages as
well as compensatory and/or punitive damages).
II. Discrimination in Hiring, Promoting, Discharging and Other Terms/Conditions of
Employment/Retirement
Employment discrimination is prohibited by several federal non-discrimination statutes. Each
statute addresses specific forms of discrimination. Following is a summary of rights and
protections provided by federal non-discrimination statutes.
A. Discrimination based on race, sex, color, national origin or religion
Title VII of The Civil Rights Act of 1964 (Title VII) protects employees against
discrimination based on race, sex, color, national origin or religion. (See 29 U.S.C. §§ 2000e
et. Seq.). Title VII’s prohibition against discrimination requires that employees be
considered for hire, promotion, training, etc. on the basis of that employee’s individual
capacities and not on the basis of any characteristics or stereotypes generally attributed to the
employee’s gender, religious, cultural, racial or national group. In addition, sexual
harassment is prohibited by this statute as discriminatory behavior based on sex/gender. An
employee’s membership in a particular group is referred to under the law as being a member
of a protected class. In addition, Title VII prohibits employers from refusing to hire an
individual because coworkers, clients or customers prefer not to work with members of one
or more protected classes. (See 29 C.F.R. § 1604.2). Included under the prohibition against
discrimination based on sex is discriminating against an employee who is pregnant. (See
also section I.C above summarizing the Family and Medical Leave Act).
Naturally, in some circumstances membership in a protected class is a bona-fide occupational
requirement. For example catholic schools may require their teachers practice Catholicism,
movie production companies may require an actress instead of an actor play a particular role,
and an employer or prospective employer can schedule a test or other selection procedure on
a religious holiday if to schedule the test on another day would cause undue hardship to the
employer. (See 29 C.F.R. § 1605.3).
The protections of Title VII apply to both private and public sector employees as long as their
employers employ at least fifteen employees. Employment agencies (temporary as well as
permanent), unions and government agencies (federal, state and city) are all subject to the
prohibitions set forth in Title VII. If your employer is not regulated by Title VII, it may be
regulated by the federal statute commonly referred to as Section 1981 (42 U.S.C. § 1981)
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which prohibits discrimination based on race or ethnicity regardless of the employer’s size
and it may be regulated by State non-discriminatory statutes. Of note also is that state non-
discriminatory statutes tend to be broader than Tile VII. For example, Title VII does not
protect against discrimination based on marital status or sexual orientation whereas many
state statutes such as New York’s do. On the other hand, if state laws conflict with the
prohibitions set forth in Title VII, an employer cannot raise the existence of the state statute
as a defense to an allegation that he or she has violated an employee’s Title VII right.
B. Age Discrimination
The Age Discrimination in Employment Act (ADEA) provides that an employer cannot
discriminate in hiring, firing, promoting, or with respect to the employee’s compensation,
terms of employment, classification/status or benefits such as vacation, health insurance,
pension plan, etc. because of the employee’s age. Employees who are forty years of age or
older who work for public and private sector employers with 20 or more employees are
protected under the ADEA. The Act also applies to the federal government, employment
agencies and unions. (See 29 C.F.R. § 1625.2) and (See 29 U.S.C. § 623).
Of note is that while an employer is not permitted to “force” or pressure an employee into
retiring early, an employer can require that a “highly compensated” executive retire at the age
of 65 as long as the employee will be able to immediately receive annual retirement benefits
of at least $44,000. (See 29 U.S.C. § 631). Furthermore, an employer will not violate the
ADEA if he refuses to hire or promote a person because of the person’s age when age is a
“bona-fide qualification” for the position which means that the age limit is reasonably
necessary to perform the duties of the position. (See 29 C.F.R. § 1625.6).
C. Discriminating Against the Disabled
The Americans with Disabilities Act (ADA) requires that employers do not discriminate
against qualified individuals with disabilities with respect to the terms, conditions or benefit
of employment as well as with respect to hiring, firing and promoting that individual. (See
42 U.S.C. § 12101, et seq.), (See 29 C.F.R. § 1630.4). In terms of accommodations, the
employee is responsible for notifying their employer that they need special accommodation.
Once notified, the employer can only deny accommodation under certain circumstances. The
ADA protects disabled individuals who work in the private or public sector for a corporation,
government agency, employment agency or union that employs 15 or more employees. (See
29 C.F.R. § 1630.2) Briefly, to be disabled an individual must have either (i) a mental or
psychological disorder, such as mental retardation, organic brain syndrome, emotional or
mental illness, or specific learning disabilities or (ii) a physical disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the following body
systems: neurological, musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
and endocrine. (See 29 C.F.R. § 1630.2). Aids or HIV are included under the heading of a
physical disorder and persons with Aids or HIV are protected against discrimination in
employment under the ADA.
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The Equal Employment Opportunity Commission enforces Title VII and the ADA and will
assists persons who believe they have been discriminated against with filing a charge. If you
believe you are being unlawfully discriminated against, you can contact your local EEOC
Field Office or your State Fair Employment Practices Agency Office and request that the
they issue a charge of discrimination and conduct an inquiry/investigation into your
employer’s practices. (See 29 C.F.R. § 1601 et seq.). You can ask the EEOC to keep your
identity confidential as they investigate your employer. If you will file your charge with the
EEOC Field Office you must do so within 180 days of the first violation. If you file your
charge with a state Fair Employment Practices Agency and that agency decides not to pursue
and investigation or if the agency terminates its investigation/proceedings, you can re-file
your charge with the EEOC Field Office in your state within 30 days of when the state
agency notifies you of their decision or within 300 days from the date of the alleged
violation, whichever is earlier. (See 29 C.F.R. § 1601.13).
Of note is that the EEOC will first attempt to remedy the violation by persuading your
employer to voluntary comply with the requirements of Title VII, ADA and/or ADEA. If this
fails, the EEOC will then commence a legal proceeding which can result in your recovering
unpaid wages, salary and overtime compensation. In addition, you may receive a judgment
compelling your employer or prospective employer to employ you or promote you. (See 29
U.S.C. § 626). The EEOC requires that if you decide to file a private civil action, you must
first file a complaint with the EEOC. Depending on your circumstance, you may also have to
file a complaint with your State’s Fair Employment Practices Office before filing a private
civil action as well.
D. Immigrant Discrimination
The Immigration Reform and Control Act prohibits employers from discriminating against
lawfully admitted immigrants based on their nationality or citizenship status. In addition,
employers may not intimidate, threaten, coerce, or retaliate against any lawfully admitted
alien in order to prevent that person from enforcing their rights under this act or because that
person has filed a complaint under this Act. This prohibition applies to lawfully admitted
aliens (resident aliens, naturalized citizens, persons granted asylum, etc) who work for an
employer with three or more employees. Under the Act, it is not unlawful for an employer to
decide to hire an American citizen instead of a lawfully admitted alien or to discriminate
against a lawfully admitted alien if to do so is in compliance with a U.S. law, regulation, or
executive order, or required by the terms of a government contract or is a condition
established by the U.S. Attorney General for doing business with a federal state or local
government agency or department. (See 8 U.S.C. § 1324(b)).
If you believe you have been subjected to unfair immigrant-related employment practices,
you can file a charge with the Special Counsel of the United States Department of Justice
within 180 days of the first discriminatory act or practice. The Special Counsel will take no
more than 120 days to investigate and if your charge is found to be a sustainable charge
prosecute your employer in court before an administrative law judge on your behalf. If the
Special Counsel has not filed a complaint against your employer by the end of the 120 days
she/he will send you notice and you nay file a your own complaint against your employer
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with an administrative law judge within 90 days after the date of receipt of the notice. Of
note is that you may not file a charge of unfair immigrant-related employment practices with
the Special Counsel if you have already filed a charge of employment discrimination based
on national origin or ethnicity arising from the same set of facts with the EEOC, unless the
EEOC has dismissed the charge is dismissed as being outside the scope of Title VII. (See 8
U.S.C. § 1324b).
III. Protections/Rights Provided At The Termination of Employment
A. Removal for Just Cause Only
The Federal Employee Performance Act provides that an employee can only be terminated
for cause (or unacceptable performance) and that before termination the public agency must:
1) give the employee written notice 30 days in advance that details the specific instance of
unacceptable performance and elements of the employee’s position effected; (2) provide the
employee the opportunity to defend themselves in writing or orally; (3) allow the employee
to retain a lawyer or other representative to defend the employee; and (4) receive a written
decision. (See 5 U.S.C. § 4303).
B. Plant Closings and Layoffs
The Worker Adjustment and Retraining Notification Act (WARN) requires that employers let
employees or the employee union representatives know 60 days in advance of pending plant
closing or mass layoff that will result in 50 or more (or 33% of total) employees being
discharged within a thirty day period. The Act applies to plants with 100 or more employees,
not counting employees who have worked less than 6 months or work less than 20 hours a
week . Of note is that business partners of the plant do not have to be informed of pending
closings or lay offs. (See 29 U.S.C. § 2102) . If you do not receive proper notice, your only
recourse is to file a private law suit in district court or to join a class-action law suit that has
been or will be filed. Employees who do not receive proper notice can recover back pay for
each day notice was not received up to a maximum of 60 days and benefits under an
employee benefit plan including medical expenses incurred even if the expenses would not
have been covered normally. (See 29 U.S.C. § 2104).
State dislocated worker units will receive notice of plant closings/lay offs under WARN and
can assist discharged workers. Likewise, state agencies/departments will also receive WARN
notices and may further assist employees in transitioning to other positions prior to being
discharged. (See 29 U.S.C. § 2102) . You can obtain contact information for these state
based organizations from your local phone book or by visiting the following Department of
Labor web site link. http://www.doleta.gov/regions/reg04/warn/warn-summary.htm .
C. Jury Duty
The Jury System Improvements Act mandates that an employer cannot fire, threaten to fire,
intimidate, or coerce any permanent employee because that employee has been called for or
has served jury duty in a U.S. court of law. If your employer violates this law, you can file a
private law suit in federal district court seeking to recover lost wages, value of any lost
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benefits and reinstatement. The district court will appoint a lawyer to you if you request. If
you retain your own lawyer and prevail, the court can award attorney fees and court costs.
Of note is that if you are reinstated to your position of employment The Act provides that you
should not lose your seniority, insurance or other benefits offered by the employer. (See 28
U.S.C. § 1875).
D. Re-Employment for Members of the Armed Forces
The Uniform Services Employment and Reemployment Rights Act provides that any person
absent from their position for five or less years as a result of service in the uniformed
services shall be entitled to the reemployment rights and benefits as long as (1) the employee
has given advance written or verbal notice of such service to such person's employer and (2)
the person reports to, or submits an application for reemployment to, such employer. (See 38
U.S.C. § 4312) Upon returning to their position, the employee retains all benefits (inclusive f
vacation, health insurance and the like) and seniority that they had upon leaving as well as
any additional seniority or benefits they would have gained had they worked continuously.
(See 38 U.S.C. § 4316)
E. Health Insurance After Termination
The Consolidated Omnibus Budget Reconciliation Act (COBRA) mandates that discharged
or terminated employees have the option to purchase at a group rate an additional 18 months
of coverage under the current health insurance plan. Of note is that COBRA does not apply
to companies with less than 20 employees. (See 29 U.S.C. § 1161). The Act provides that the
employee can purchase up to 18 months of continued insurance coverage and that the
employee should not pay more than 102% of the regular monthly premium (See 29 U.S.C.
§ 1161).
F. Unemployment Insurance
The U.S. Department of Labor provides that employees who have lost their jobs can receive
unemployment insurance. Each state administers unemployment insurance benefit
applications, processing and payments for that state. While the specific coverage
requirements may vary from state to state, employees who have worked at least 20 weeks
before being laid off are eligible to receive unemployment insurance benefits. To receive
benefits you must register with your local unemployment office, register with an employment
agency or demonstrate that you are looking for work and state to the unemployment office
that you are available to work. The address and phone number of your local unemployment
office can be located in the blue pages of your local telephone directory.
IV. Pension Plans and Retirement Benefits
Generally speaking, the laws do not require an employer to provide specific pension or
retirement benefits. However, the federal government does provide protections/guarantees to
employees with respect to pension plans and retirement benefits that are offered.
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A. Private Employee Pension Plans
Private pension plans are either defined benefit plans and defined contribution plans.
Defined benefit plans pay out to the retired employee a fixed benefit amount which amount is
stated in the plan materials. Defined contribution plans involve the employee and at times
the employer paying into the employee’s pension fund a specified dollar amount each year
which the employee can withdraw upon becoming fully vested or retiring. Defined
contribution plans are increasingly being used and include 401k plans, profit-sharing plans,
and employee stock ownership plans.
The Employee Retirement Income Security Act (ERISA) does dictate how the employers
with pension plans administer them, the information employees receive regarding their
pension plans, and how the employer invests and distributes the pension funds. Some of the
fundamental rights and protections mandated by ERISA are:
Eligibilit y: As a general rule, an employee is eligible to participate in the private
employer’s pension plan if he or she is at least 21 years old and has been employed for
one year or billed 1,000 hours (See 29 U.S.C. ERISA § 1051).
Information : ERISA laws dictate the scope and frequency of information the employer
must give its employees regarding the pension plan. Part of these requirements are that
the employees receive a Summary Plan Description setting forth the pension plan rules
and requirements and a Personal Benefit Account Statement detailing the amount of
pension benefits and what portion is vested. (See 29 U.S.C. ERISA § 1021, 1022 and
1025).
Separation of Service and Vesting : Under ERISA, if an employee resigns from or is
discharged from a job before retirement age (termed separation of service), the employee
is entitled to receive some of his/her benefits that have accrued under the pension plan. If
the employee has a defined benefit plan, the employee is entitled to receive 3% of the
total benefit she/he would have received upon retiring multiplied by the number of years
that s/he participated in the pension plan (not to exceed 331/3 years). If the employee has
a defined contribution plan, the employee is entitled to receive the full balance of
contribution the employee made to his pension plan (less unpaid distributions, loans, etc)
along with any amount of employer contributions that have vested. (29 U.S.C. § 1054).
Vesting refers to the point at which employees become entitled to receive employer
contributions paid into the pension plan on the behalf of the employee. ERISA provides
that an employee can become vested in one of two ways: (1) the employee becomes fully
vested (entitled to 100% of the contributions made by the employer) after serving on the
job continuously for five years or (2) the employee becomes fully vested in stages; 20%
upon 3 years of service, 40% upon 4 years of service, 60% upon 5 years of service, 80%
upon 6 years of service and 100% upon 7 years of service. (29 U.S.C. § 1054). When an
employee leaves a job and receives a payout of pension plan benefits before retirement
age, the employee will have to pay taxes on the monies received unless the employee
immediately places the money into an IRA or new employers pension plan (termed a
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rollover), uses the money to purchase their first home, or other limited exceptions
established by the IRS. You should consult an accountant prior to taking your
distribution.
Plan Termination : ERISA provides that administrators of private defined benefit pension
plans (government pension plans are not covered by the Act) maintain insurance with the
Pension Benefit Guaranty Corporation (PBGC). The PBGC guarantees the participant
benefits against lost so that the participants can receive some of their benefits should the
plan terminate. However, the PBGC insurance applies only to certain benefits and
provides a limited amount of money. (See 29 U.S.C. § 1321). To find out if the PBGC
applies to your benefits you should contact either your plan administer, the PBGC or the
Employees Benefits Security Administration which enforces and provides information
regarding ERISA.
Unjustified Discharge/Firing : ERISA prohibits employers from firing employees in order
to prevent their pension plan funds from becoming fully vested. In order to charge your
employer with improperly firing you under this law, you must be able to prove that your
employer’s primary purpose in firing you was to avoid having to pay you your pension
benefits. If you have been fired for this reason you can bring a civil action against your
employer and receive lost wages, lost benefits and attorney fees.
Joint and Survivor Annuities : Most pension plans permit employees who will retire after
January 1, 1976 to elect to receive a small benefit amount from a defined benefit plan so
that the employee or the employee‘s spouse can continue to receive pension benefits for
as long as s/he lives. Of note is that upon the employee’s death, the benefit amount paid
to the spouse can be reduced by as much as 50%. (See 29 U.S.C. ERISA § 1055).
Administrator‘s Fiduciary Duty . Under ERISA, the employer or employer’s
representative has a fiduciary duty to manage pension funds solely in the interest of the
employees, to act skillfully, prudently, and diligently in administering the plan, to
diversify the fund investments to avoid large losses, and to operate the pension plan in
accordance with the plan rules. These fiduciary requirement serve to protect employees
from losing pension benefits. However, these protections are fact specific and therefore
may not protect employees from all losses. (See 29 U.S.C. ERISA §§ 1101-1114).
If you believe that your employer has or is violating your rights as a pension beneficiary or
the prohibitions set forth under ERISA, you can bring your allegation to the Secretary Of
Labor. The Secretary will investigate the allegation to determine whether your employer or
your employer’s representative has violated or is about to violate any provision of ERISA.
(See 29 U.S.C. § 1134). Upon conducting an investigation, if the Secretary determines that a
violation has occurred, he will refer the case to federal or state prosecutors who will file civil
and/or criminal actions. (See 29 U.S.C. § 1136). The Secretary of Labor will also work in
conjunction with state agencies and may well delegate the investigation to a state agency.
B. Public Retirement Benefit Plans
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Public sector employees are entitled to receive retirement annuities, the federal government
offers its employees deferred retirement annuities, cost of living adjustments to annuities,
survivor annuities, the option to receive annuities in a lump sum payment; and the option to
increase annuities by making additional contributions toward their pension. (See 5 U.S.C.
§§ 8338, 8339 and 8341-43). The Office of Personal Management pays out retirement
annuities and handles all claims for annuities and makes all decisions concerning annuity
eligibility, reduction, discontinuance, etc. You can obtain assistance in understanding your
pension plan and applying for the benefits listed above by contacting the Office of Personal
Management. Should you disagree with the Office‘s determination, you may appeal to the
Merit Systems Protection Board under procedures prescribed by the Board. It is highly
advised that you seek the advice of legal counsel or your local Area Agency on Aging prior to
commencing an appeal as the process can be complicated and may contain firm time
restrictions.
V. Workplace Safety
The Occupational Safety And Health Act (OSHA) provides that employers as well as employees
must follow the standards promulgated under the Act to reduce the number of occupational
safety and health hazards at their places of employment, and to adopt programs/procedures that
will create a workplace that is free from “recognized hazards that are causing or are likely to
cause death or serious physical harm,” and keep records of employee injuries, illnesses, deaths,
and exposures to toxic substances. (See generally 29 U.S.C. § 651). OSHA authorizes the
Secretary of Labor to set mandatory occupational safety and health standards that covered
employers must abide by. To obtain a list of OSHA standards go to the OSHA website at
http://www.osha.gov . Private and Public employers engaged in commerce are covered by OSHA
or State agencies who partner with OSHA. Of note is that particular emphasis placed on certain
industries such as construction, plants and businesses working with hazardous materials.
A. Whistleblower Protection
Federal employment laws and most state laws protect employees who report violations of
OSHA and other safety laws from retaliatory actions, demotion and/or discharge.
B. Protection for Refusing to perform hazardous/deadly work tasks
Employees who refuse to perform a task or activity that they believe will endanger them are
protected from discharge/demotion as long as the employee has a good faith belief that s/he
would be in real danger of death or serious injury; a reasonable person would form the same
belief; there is not enough time reduce or eliminate the risk through the regular OSHA
channels; and the employee has already asked the employer to alter the task or activity.
The requirements of OSHA are enforced by the Occupational Safety and Health Review
Commission which investigates and prosecutes reported violations of OSHA. (See 29 U.S.C.
§ 657). Upon investigating an alleged violation, the Commission can request an injunction to
force the employer to discontinue the practice or activity that endangers the health and safety
of the employees. (See 29 U.S.C. § 662). If you or your union representative would like to
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report a suspected violation of OSHA standards you can send a written notice to the
Secretary of Labor or the regional/local OSHA office in your state informing them of the
alleged violation and requesting an immediate investigation of the workplace and issuance of
an injunction. The written notice must specify in detail the conditions, activities or policies
that endanger the employees and must be signed by the employees or representative of
employees. Upon request, the Secretary of Labor will keep the identity of the employee or
employee representative who wrote the notice confidential. (See 29 U.S.C. § 657(f).
Of note however is that if a particular federal statute regulates the health and safety of a
particular industry or occupation, such a mining, then OSHA standards will not apply to that
employer. For example, miners are governed by the Mine Safety and Health Administration
and not OSHA. You can contact your local OSHA or Department of Labor Office for more
information
VI. Workers Compensation
Workers compensation refers to laws that provide monthly payments to employees who are
injured or permanently disabled by employment related accidents or incidents. Federal worker
compensation statutes only apply to public employees, except for seaman, and to those workers
employed in some significant aspect of interstate commerce. As a result if you work in the
private sector or for a small public sector employer, you will not be entitled to the protections
afforded by these statutes. You may however be covered by state workers compensation laws.
Following is a brief summary of federal workers compensation statutes:
A. The Federal Employment Compensation Act
The Federal Employment Compensation Act provides workers monthly compensation
payments for non-military, federal employees who are disabled or killed resulting from
personal injury sustained while in the performance of his/her duty, unless the injury or death
was willfully caused by the employee or directly or indirectly caused by the employee’s
intoxication. (See 5 U.S.C. § 8102). Total disability is defined by the Act as the loss of use of
both hands, both arms, both feet, or both legs, or the loss of sight of both eyes. Injury
resulting in the loss of one hand or the loss of sight in one eye will likely be deemed a partial
disability under the Act. (See 5 U.S.C. § 8105). Partially disabled employees can receive
during the period of partial disability monthly compensation equal to 66 2/3 percent of the
difference between his monthly pay and his monthly wage-earning capacity after the
beginning of the partial disability. (See 5 U.S.C. § 8106). For an employee who is totally
disabled by his/her injury, the government will pay the employee during the period of
disability monthly monetary compensation equal to 66 2/3 percent of his monthly pay. (See
5 U.S.C. § 8105). The amount of time that disability payments are received is based on the
nature of the injury. The schedule of compensation can be obtained from the Office of
Workers’ Compensation which administers the Act. In addition, the Federal Employment
Compensation Act will pay for medical expenses related to the injury and prescribed by a
physician to aid or cure the employee including necessary services, appliances, and supplies.
(See 5 U.S.C. § 8103). Finally, the Act provides compensation for survivors of employees
who are killed in work related accidents or incidents .
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B. The Federal Employment Liability Act (FELA)
FELA provides compensation payments to railroad workers who are injured or disabled in
the course of employment due to the employer’s negligence. (See 45 U.S.C. § 51). Because
this is not a workers compensation statute per se, the injured employee or his/her survivors
must file a private law suit in district court to recover damages for the injury and the amount
of damages will be reduced if the jury determines that the employee’s own negligence
contributed to the resultant injury or death. (See 45 U.S.C. § 56).
C. The Longshore and Harbor Workers' Compensation Act (LHWCA)
The LHWCA provides workers' compensation to employees of private maritime employers.
Employees can receive compensation payments if their disability or death results from an
injury occurring upon the navigable waters of the United States during the course of
employment (this includes while working on a pier, wharf, dry dock, terminal, building way,
marine railway, or other adjoining area customarily
