growing pains - valleysbdc · growing pains . outcomes •understand what laws apply to you in your...

Growing Pains

Outcomes • Understand what laws apply to you in your

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• General information on employment laws (their history/how they came about/their purpose)

• Resources to help you become compliant

• How current employment practices may affect your company when you reach the next level – Disclaimer: Susan Grossman is not an attorney; the information provided in this seminar is

general information on Employment Laws – please seek the advice of an attorney on all employment matters.

Employment Laws that apply to EVERYONE

• Title VII of the Civil Rights Act of 1964 (for employment agencies and labor organizations). See 15-19 for other employers.

• Consumer Credit Protection Act of 1968

• Employee Polygraph Protection Act of 1988 (employers engaged in interstate commerce)

• Employee Retirement Income Security Act (ERISA) of 1974 (if company offers benefits)

• Equal Pay Act of 1963

• Fair and Accurate Credit Transactions Act of 2003 (FACT) (Farm Credit System (FCS) institutions)

• Fair Credit Reporting Act of 1969

• Fair Labor Standards Act of 1938

• Federal Insurance Contributions Act of 1935 (FICA) (Social Security)

• Health Insurance Portability and Accountability Act (HIPAA) of 1996 (if company offers benefits)

• Hiring Incentives to Restore Employment Act of 2010 (HIRE) (EE must have been hired between 2/3/10 and 1/1/11)

• Immigration Reform and Control Act of 1986

• Lilly Ledbetter Fair Pay Act of 2007

• National Labor Relations Act of 1947

• Newborns' and Mothers' Health Protection Act of 1996 (for

• Occupational Safety and Health Act of 1970

• Sarbanes-Oxley Act of 2002 (publicly traded companies or companies that are required to file certain reports with the SEC)

• Uniform Guidelines on Employee Selection Procedures of 1978

• Uniformed Services Employment and Reemployment Rights Act of 1994

Laws pertaining to Federal Contractors are not included in this presentation

Consumer Credit Protection Act of 1968

• Protects employees from being discharged because of a wage garnishment

• Limits the amount of wages that can be garnished in any one week

Source: Federal Deposit Insurance Corporation

History

Informed use of credit by consumers can enhance economic stability and encourage competition

among financial institutions.

Employee Retirement Income Security Act (ERISA) of 1974

• Minimum standards to ensure employee benefits are maintained in a fair and financially sound manner.

• Must provide SPDs and summaries of any material changes.

• File a 5500 report with exceptions that may apply to you.

Source: US Department of Labor

History

• President John F. Kennedy

• The Studebaker Corporation

• Senator Jacob K. Javits

• NBC

• ERISA was enacted in 1974 and signed into law by President Gerald Ford on September 2, 1974, Labor Day. In the years since 1974, ERISA has been amended repeatedly.

Equal Pay Act of 1963

• Men and women should receive equal pay for equal work.

• Job content, not job title determines whether jobs are equal.

– equal skill, effort and responsibility, and that are performed under similar working conditions.

Source: Equal Employment Opportunity Commission

History

• Rosie the Riveter: Patriotic and Underpaid

• Help wanted—Separate and Unequal

• The Courts Nix the "Going Market Rate" for Women

• Schultz v. Wheaton Glass Co. (1970)

• Corning Glass Works v. Brennan (1974)

Fair Credit Reporting Act (FCRA) of 1969

• Regulating the consumer reporting industry • Placing disclosure obligations on users of consumer reports • Ensuring fair, timely, and accurate reporting of credit

information • An employer may obtain an applicant's or employee's

consumer report for employment related purposes if it – gives the applicant or employee a clear and conspicuous

written disclosure (in a document consisting solely of the disclosure) notifying him or her that a consumer report may be obtained and

– obtains written authorization from the applicant or employee

Source: Federal Trade Commission

History

Fair Labor Standards Act (FLSA) of 1938

• Establishes minimum wage, overtime pay, recordkeeping, and youth employment

• FLSA does not require: - vacation, holiday, severance, or sick pay; - meal or rest periods, holidays off, or vacations; - premium pay for weekend or holiday work; - pay raises or fringe benefits; or - a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees. • Some employees are exempt from the overtime pay provisions or

both the minimum wage and overtime pay provisions. • Record-keeping requirements • Computing OT Pay Source: US Department of Labor

History

The “elimination of labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency and well being of workers.”

CIO Sit-Down Strikes

Goodyear Tire

US Supreme Court Opposition

Federal Insurance Contributions Act (FICA) of 1935

• Social Security tax (old-age, survivors, and disability insurance)

• Medicare (hospital) tax

• Withhold from EE/match

– SS 6.2%

– Medicare 1.45%

• SS has wage limit; usually changes annually Source: Internal Revenue Service

History

• end of work careers was the end of all income

• a disabling injury meant no more income

• anyone born with severe disability had no income

• end of work careers was the end of their ability to pay for medical care

Health Insurance Portability and Accountability Act (HIPAA) of 1996

To enable better access to health insurance, reduce fraud and abuse, and lower the overall cost of healthcare in the United States

• Improves portability and continuity of health insurance coverage

• Privacy protection provisions


History

HIPAA originated from growing public concern about how private health care information was being used.

Immigration Reform and Control Act of 1986 (IRCA)

Employers with four or more employees may not: • Discriminate because of national origin • Discriminate because of citizenship status Employers must treat all new hires the same. This includes the following steps: • Establish a policy of hiring only individuals who are authorized to

work. • Complete the I-9 Form for all new hires. • Permit employees to present any document or combination of

documents acceptable by law Source: US Citizenship and Immigration Services

History

Signed into law by President Reagan.

Enacted to attempt to put a stop to illegal immigration into the United States.

Did it work???

Lilly Ledbetter Fair Pay Act of 2007

At which point in time do discriminatory actions qualify as an “unlawful employment practice”

(1) a discriminatory compensation decision or other practice is adopted;

(2) an individual becomes subject to the decision or practice; or

(3) an individual is affected by application of the decision or practice, including each time compensation is paid

Source: National Association of College and University Attorneys

History

Ledbetter v. Goodyear Tire & Rubber

National Labor Relations Act (NLRA) of 1947

The National Labor Relations Act extends rights to many private-sector employees including the right to • Organize and bargain with their employer collectively. • Form, or attempt to form, a union among the

employees • Join a union whether the union is recognized by the

employer or not. • Assist a union in organizing fellow employees. • Engage in protected concerted activities (group activity

which seeks to modify wages or working conditions). • Refusing to do any or all of these things.


Employer Conduct That Violates the NLRA:

• Threatening

• Questioning

• Promising

• Punishing


Labor Organization Conduct That Violates the NLRA:

• Threatening

• Punishing

• Striking

Source: National Labor Relations Board

History

• Railway Labor Act of 1926 • Norris-LaGuardia Act of 1932 • National Industrial Recovery Act

of 1933 • National Labor Board • The Wagner Act of 1935 • The Taft-Hartley Act of 1947 • 1959 Landrum-Griffin Act (Labor-Management

Reporting and Disclosure Act) Source: http://www.nlrb.gov/75th/history.html

Newborns' and Mothers' Health Protection Act

Requires plans that offer maternity coverage to pay for at least a 48-hour hospital stay following childbirth (96-hour stay in the case of a cesarean section).

Source - U.S. Department of Labor Employee Benefits Security Administration

History

Occupational Safety and Health Act (OSHA) of 1970

• “General Duty" clause

• Develop and operate your own job safety and health programs. – The Virginia Department of Labor and Industry (DOLI)

administers a State Plan Program consistent with the provisions of Section 18(e) of the federal Occupational Safety and Health Act. The vast majority of the VOSH standards are identical to federal OSHA standards.


• Access to Medical and Exposure Records

• Personal Protective Equipment

• Hazard Communication

• Recordkeeping (when an employer has 11 employees)

• Reporting


Types of violations that may be cited and the penalties that may be proposed:

• de minimus

• Other Than Serious Violation

• Serious Violation

• Willful Violation

• Repeated Violation

• Failure to Correct Prior Violation Source: US Department of Labor

History

President Richard M. Nixon signs OSH Act into Law December 29, 1970

Source: Reflections on OSHA’s History http://www.osha.gov/history/OSHA_HISTORY_3360s.pdf

Uniform Guidelines on Employee Selection Procedures of 1978

• Establishes uniform standards for employers to use in their selection procedures

• NOT legislation/law

• Assists employers in complying with equal employment opportunity requirements under Federal Law

• Questions and Answers on the Uniform Guidelines on Employee Selection


History

• Griggs v. Duke Power Co. 1970

Uniformed Services Employment and Reemployment Rights Act of 1994

• Establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service

• Provides protection for disabled veterans

• Returning service-members are reemployed in the job that they would have attained had they not been absent for military service

• Health and pension plan coverage


History

• Civil War legislation

• Soldiers’ and Sailors’ Civil Relief Act of 1940

• Selective Training and Service Act of 1940

• Fishgold v. Sullivan Drydock (1946)

• Niemiec v. Seattle Rainier Baseball Club, Inc., (1946)

And now we are 15

Federal laws applicable for Employers with 15-19 Employees

Title VII of the Civil Rights Act of 1964

• Protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion.

• Adopt "best practices" to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.


History

Americans with Disabilities Act of 1990 (ADA)

• Prohibits employers from discriminating against qualified individuals with disabilities in

– job application procedures

– hiring/firing/advancement

– compensation

– job training

– other terms, conditions and privileges of employment


• An individual with a disability is a person who:

- Has a physical or mental impairment that substantially limits one or more major life activities.

- Has a record of such impairment.

- Is regarded as having such impairment


• Definition of a qualified employee or applicant with a disability

• Reasonable accommodations may include but are not limited to:

Making existing facilities used by employees readily accessible to and usable by persons with disabilities. Job restructuring, modifying work schedules, reassignment to a vacant position. Acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials or policies; and providing qualified readers or interpreters.


The Americans with Disabilities Act Amendments Act of 2008

• Significant changes to the definition of “disability” – “substantially limits”

• Easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” – how a person has been treated

• An individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation .


History

• Section 504 of the 1973 Rehabilitation Act

• Define non-discrimination in the context of disability

The Genetic Information Nondiscrimination Act (GINA) of 2008

• Prohibits U.S. insurance companies and employers from discriminating on the basis of information derived from genetic tests.

– prohibits employers from making adverse employment decisions based on a person’s genetic code. Employers are not allowed to request or demand a genetic test.

When might this happen? Source: National Human Genome Research Institute

History

• Rising number of Genetic Tests performed

• Benefits of Genetic Testing

• Befits of GINA

And now we are 20

Federal laws applicable for Employers with 20-49 Employees

Age Discrimination in Employment Act of 1967

• Protects individuals who are 40 years of age or older from employment discrimination or retaliation based on age (both employees and job applicants) – job notices or advertisements (unless “BFOQ”) The Older Workers Benefit Protection Act of 1990 (OWBPA) - amended the ADEA to specifically prohibit employers

from denying benefits to older employees Waivers of ADEA Rights Source: Equal Employment Opportunity Commission

History

Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986

• Temporary extension of health coverage (Continuation Coverage) – Voluntary or involuntary termination of the covered

employee’s employment for reasons other than gross misconduct.

– Reduced hours of work for the covered employee.

– Covered employee becoming entitled to Medicare.

– Divorce or legal separation of a covered employee.

– Death of a covered employee.

– Loss of status as a dependent child under plan rules.

Qualified Beneficiary Qualifying Event Period of Coverage

Employee Spouse Dependent child

Termination Reduced hours

18 months

Spouse Dependent child

Entitled to Medicare Divorce or legal separation Death of covered employee

36 months

Dependent child Loss of dependent child status (age 26)

36 months

* This 18-month period may be extended for all qualified beneficiaries if certain conditions are met in cases where a qualified beneficiary is determined to be disabled for purposes of COBRA. However, COBRA also provides that continuation coverage may

be cut short in certain cases.



• Notice Requirements

– Employer, Employee, Plan Administrator

• Premium Payments

– up to 102% of the cost to the plan


History

50 + Employees

• Family and Medical Leave Act of 1993 • EEO-1 Report filed annually w/EEOC if organization is a

federal contractor • Mental Health Parity Act of 1996 (for employers who

offer mental health benefits) • Mental Health and Addiction Equity Act of 2008 (for

employers who offer mental health benefits) • Patient Protection and Affordable Care Act of 2010 (for

employers who offer health care benefits) Aren’t you lucky! – However, If you own a small business (with less than 49 workers), you

may be able to use the marketplace (also called Exchanges) to get health care for your business. Enrollment starts in October, 2013

100+ Employees

• Worker Adjustment and Retraining Notification Act of 1988 (WARN)

• EEO-1 Report filed annually w/EEOC if organization is not a federal contractor

growing pains - valleysbdc · growing pains . outcomes •understand what laws apply to you in your...

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