Paul G. Sherman | Kabat Chapman & Ozmer LLP
Paul Sherman has practiced labor and employment law exclusively on behalf of management for over a decade. An experienced litigator, Paul has represented clients in proceedings before the Department of Labor, the Equal Employment Opportunity Commission, dozens of federal and state courts, and various state agencies.
Employers in the United States are governed by a comprehensive statutory and regulatory scheme that touches on nearly every phase of the employment relationship. Unfortunately, many employers may not even know about certain laws until the threat of litigation arises. Below, we list the major federal employment laws of which employers should be aware. Those laws are roughly categorized by topic. Please keep in mind that federal employment laws (including regulations and case law interpreting those laws) can, and often do, change. For example, it is very likely that we will see substantial changes to the Affordable Care Act (discussed below) in the near future under the Trump administration.
Laws Relating to Pre-Employment Relationship
Immigration Reform & Control Act (IRCA): The IRCA requires employers to verify certain documentation from new workers to confirm that they have a legal right to work in the United States.
Fair Credit Reporting Act (FCRA): Employers who wish to obtain background reports or credit checks of applicants or employees from companies in the business of compiling such reports and checks (consumer reporting agencies) must comply with the FCRA.
Employee Polygraph Protection Act (EPPA): Subject to limited exceptions, the EPPA prohibits employers from requiring applicants or employees to submit to polygraph examinations.
Wage and Hour Laws
Fair Labor Standards Act (FLSA): The FLSA establishes federal minimum wage, overtime pay, recordkeeping, and youth employment standards.
Federal Insurance Contribution Act (FICA): FICA is a federal payroll tax imposed on both employees and employers to fund Social Security and Medicare.
Consumer Credit Protection Act (CCPA): Title III of the CCPA limits the amount of an individual’s earnings that may be garnished and protects an employee from being fired due to having wages garnished if his or her pay is garnished for only one debt.
Employee Benefits Laws
Employment Retirement Income Security Act (ERISA): ERISA provides a comprehensive federal scheme for the regulation of employee pension and welfare benefit plans offered by employers.
Health Insurance Portability and Accountability Act (HIPAA): HIPAA provides various privacy and confidentiality protections for participants and beneficiaries in group health plans.
Consolidated Omnibus Budget Reconciliation Act (COBRA): COBRA requires employers to permit employees to extend their health insurance coverage at group rates for up to 36 months following a qualifying event.
Affordable Care Act (ACA): The ACA requires employers with 50 or more full-time employees to provide “affordable” health insurance coverage that amounts to at least 60% of covered health expenses for a typical population.
Anti-Discrimination and Whistleblower Laws
Title VII of the Civil Rights Act of 1964 (Title VII): Title VII, which applies to employers with 15 or more employees, prohibits discrimination in all terms and conditions of employment (including pay and benefits) on the basis of race, religion, ethnic group, sex, or national origin.
EEO-1 Survey Filing (Title VII): Employers with more than 100 employees are required to submit an EEO-1 report to the EEOC each year.
Pregnancy Discrimination Act (PDA): The PDA amended Title VII to also prohibit discrimination “on the basis of pregnancy.”
Age Discrimination in Employment Act (ADEA): The ADEA, which applies to employers with 20 or more employees, prohibits discrimination against employees and applicants based on their age (40+).
Older Workers Benefit Protection Act of 1990 (OWBPA): The OWBPA amended the ADEA to protect the rights and benefits of older workers who are being laid off.
Equal Pay Act (EPA): The EPA prohibits wage discrimination based on gender by requiring equal pay for equal work of the same skill, effort, and responsibility.
Genetic Information Nondiscrimination Act (GINA): GINA, which applies to employers with 15 or more employees, makes it illegal for employers to discriminate against employees or applicants because of genetic information. The Act also prohibits employers from requesting or requiring employees or family members to provide genetic information.
Sarbanes-Oxley Act (SOX): SOX established new and expanded financial accountability requirements for all publicly-traded companies in the United States. Employers subject to SOX should also be aware that the Act provides protections to “whistleblowers.”
Leave and Disability Laws
Americans with Disabilities Act (ADA): The ADA, which applies to employers with 15 or more employees, protects qualified individuals with disabilities from unlawful discrimination in employment.
Family and Medical Leave Act (FMLA): The FMLA, which applies to employers with 50 or more employees, requires employers to allow employees up to 12 weeks of unpaid leave during any 12-month period for their own serious health condition or a serious health condition of employee.
Uniformed Services Employment & Reemployment Rights Act (USERRA): USERRA prohibits employers from discriminating against military service members because of past, current, or future military service.
Occupational Safety and Health Act (OSHA): OSHA requires employers to provide a safe workplace. Among numerous other requirements, OSHA and its supporting regulations require employers to: 1. Make sure their employees are properly trained to safely use tools and equipment and to properly maintain those tools and equipment, 2. Provide safety training when necessary, and 3. When appropriate, develop and implement a written hazard communication program and train employees on such hazards.
Labor Unions and Protected Concerted Activity
National Labor Relations Act (NLRA): The NLRA provides a host of protections related to employees’ rights to collectively organize and bargain with their employers.
Plant Closings and Mass Layoffs
Worker Adjustment Retraining Notification Act (WARN): WARN applies to employers with 100 or more employees and requires employers to give employees advance notice of plant closings or mass layoffs.
While the above laws cover most of an employer’s obligations under federal law, companies in particular industries may be governed by additional laws or regulations. For example, federal contractors will have additional obligations under certain federal statutes. Furthermore, in addition to federal law, state and local laws can impose additional requirements on employers. As an example, California state law requires employers to pay an increased minimum wage, provide timely meal and rest breaks, pay final wages to terminated employees within a specific timeframe, and comply with numerous additional requirements. Accordingly, employers should routinely review their employment policies and practices with qualified counsel to ensure they are in compliance with all applicable laws in the areas where they operate.
If you would like additional information on any of the above laws or the various state and local employment laws, please feel free to reach out to any of the attorneys at Kabat Chapman & Ozmer.