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Practical Guidance on Employment Law Compliance:

What Do You Really Need To Know?
HR. Payroll. Benets.

Contents
About This Guide Pre-Employment Process Employment Best Practices Immigration Reform and Control Act Employment At-Will and the Equal Employment Opportunity Laws Drug Testing Wage and Hour Laws Workplace Safety Disability Leave Management Conclusion About ADP TotalSource About Jackson Lewis 1 2 5 10 12 14 15 17 20 22 23 23

About This Guide

Overwhelming. Stressful. Dont know where to start. Too much to ever know.

These are some of the ways that employers have described employment laws, which are a patchwork of federal, state and local laws and ordinances across the country. These laws have grown exponentially since the 1960s and they show no sign of slowing down. Unfortunately, these laws can be a minefield for employers that are not paying attention to them. Where should you start if you are a small-tomedium-sized business? What are best practices from an operational perspective? This special report will discuss key best practice areas that your organization should know about.

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Pre-Employment Process
Hiring an employee is one of the most important decisions that an employer will make. A bad hire can hurt an employers business, in terms of lost time, revenue, and employee morale. As a result, employers must carefully investigate applicants. Recently, however, federal and state government agencies have focused more attention on the use of criminal background checks and criminal records in the hiring process. Making a misstep in reviewing or acting on an applicants criminal record could expose an employer to claims from applicants or investigations by government agencies. Before moving forward with any plans to conduct criminal or credit background checks on applicants (or current employees), employers must be aware of several issues.

Employment Applications
There is no state or federal law that requires an employer to use an application. Nonetheless, applications are a critical tool in the hiring process. To make wise hiring decisions, employers must collect information about an applicants educational history and work history, which are directly relevant to the hiring process. Moreover, an application can include language that requires the applicant to affirm under oath that the information provided in the application is true and correct. However, employers must also make sure their applications are compliant with state law. In Maryland, for example, each application for employment must include, in bold-faced upper case type, notice that an employer may not require or demand that an applicant take a lie detector test. In Illinois, applications must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest. Additionally, applications cannot ask if an applicant has had criminal records sealed or expunged. Other states have similar requirements for criminal history. For these reasons, employers must be careful to ensure their applications comply with the laws of the states in which they operate.

Hiring an employee is one of the most important decisions that an employer will make. A bad hire can hurt an employers business, in terms of lost time, revenue, and employee morale.
Employers that work with third-party background check companies need to comply with the federal Fair Credit Reporting Act (FCRA) and, if applicable, any state-law counterpart. Even though the main focus of FCRA is preventing the abuse of credit reports, the law applies to criminal background checks conducted by background check companies as well. In order to comply with the FCRA, employers must ensure that applicants and employees provide proper authorization and consent for the background check company to run the criminal background checks. In addition, under the FCRA, prior to taking any adverse action against an applicant or employee because of a report obtained by a background check company, employers must provide written notice to an applicant and give the applicant a reasonable amount of time (usually five business days) to provide information to dispute the accuracy of the record.

Credit and Background Checks

As part of the hiring process, employers often run criminal background checks on applicants to ensure they are honest and law-abiding.

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Failure to comply with the FCRA exposes employers to civil penalties and potential lawsuits. In working with background check companies, employers must ensure that the background check companies comply with the FCRA (and any state counterpart). Under some circumstances, employers can be liable for the actions of background check companies. Violations of the FCRA may result in civil and criminal penalties. Civil penalties are nominal damages (up to one thousand dollars if no actual damages exist), actual damages (including emotional distress), and punitive damages, plus attorneys fees and costs. Civil penalties may be awarded where there is willful noncompliance with the Act. Civil penalties for negligent noncompliance are limited to actual damages and attorneys fees and costs. Criminal penalties may apply where an individual knowingly and willfully obtains information from a consumer reporting agency under false pretenses. Certain employers, because of the nature of their business, create policies which prohibit individuals with criminal records from holding a position at the company. Recently, however, the federal Equal Employment Opportunity Commission (EEOC) published Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment, which examines this type of employer policy. The EEOC is concerned with these policies because, statistically, certain groups of minorities (African-Americans and Hispanics, for example) have a much higher percentage of members with criminal records than the general population. The EEOC, therefore, has taken the position that an employers policy that prohibits individuals with criminal records from employment can have an unlawful disparate impact on these minority groups and is, therefore, unlawful. To comply with the law, the EEOC requires that an employer review all of the evidence and conduct an individualized assessment of the applicants record before making an employment decision. In conducting these individualized assessments, the EEOC requires employers to look at, among other factors, (1) the facts and

circumstances surrounding the conviction, (2) the age of the conviction, (3) the individuals efforts at rehabilitation himself after the conviction, and (4) evidence of an individuals work for other employers after the conviction. In addition, the EEOC has taken the position that an employer cannot consider an applicants arrest record in making an employment decision. To avoid a challenge to hiring practices, employers should eliminate all written policies which have a blanket prohibition on hiring individuals with criminal records (including arrests) and, instead, replace any such policies with an amended policy that states that the company will conduct an individualized assessment of employees with criminal records.

To comply with the law, the EEOC requires that an employer review all of the evidence and conduct an individualized assessment of the applicants record before making an employment decision.
In addition to the federal guidance on criminal background checks, many states have their own laws regarding criminal background checks. New York state law, for example, requires employers to conduct an individualized assessment of an applicants criminal record before making an employment decision. Massachusetts prohibits an employer from questioning an applicant about certain criminal background information, such as arrests and minor misdemeanors. In addition, under Massachusetts law, employers cannot ask questions about an applicants criminal background on an initial written employment application. Massachusetts also recently amended its Criminal Offender Record Information (CORI) law to open up its database to all employers. Now, in Massachusetts, an employer can directly check the Massachusetts criminal record of applicants.
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Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

In order to access the new Massachusetts database, however, Massachusetts employers need to follow a number of procedures, such as obtaining authorization from applicants and providing the applicants with the criminal record information if you intend to deny employment based on the record. Connecticut law prohibits an employer from asking about an applicants criminal conviction history until the applicant has been deemed otherwise qualified for the position, which means, in practice, that employers in Connecticut should not ask criminal background questions on an employment application.

job offer, but before he or she starts work), an employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

Massachusetts prohibits an employer from questioning an applicant about certain criminal background information, such as arrests and minor misdemeanors.
Pre-Employment Medical Questions
Employers are sometimes hesitant to hire an individual who has an increased likelihood of being injured on the job due to preexisting medical conditions. However, the Americans with Disabilities Act (ADA) limits an employers ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. The EEOC has explained that the rules concerning disabilityrelated inquiries and medical examinations are different at each stage. At the first stage (prior to an offer of employment), an employer may not ask any disability-related questions or require any medical examinations, even if they are related to the job. At the second stage (after an applicant is given a conditional

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Employment Best Practices

Successful employers have discovered that there are some key best practices that should be implemented for positive employee relations and legal compliance. Similarly, New York employers are required to notify all employees at the time of hire and annually, before February 1st of each year, in writing of their hourly rate; overtime rate (if applicable); regular payday; whether employee is paid by the hour, shift, day, week, salary, piece, commission or other basis; allowances, if any, claimed as part of the minimum wage (e.g. tips, meal or lodging allowances); employers name and any doing business as names used by the employer; and employers physical and mailing addresses and telephone number. For these reasons, it is important for employers to ensure they are complying with all notice requirements of the states in which they operate.

Offer Letters
Employers often use offer letters to confirm the details of an offer of employment, such as position, duties, pay and benefits. While offer letters are a good business practice, there is no state or federal law that requires an employer to use offer letters. However, some states do have certain notice requirements for new employees. For example, California requires most employers of nonexempt (hourly) employees to provide each new hire with a notice containing: the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable; allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances; the regular payday designated by the employer in accordance with the requirements of this code; the name of the employer, including any doing business as names used by the employer; the physical address of the employers main office or principal place of business, and a mailing address, if different; the telephone number of the employer; and the name, address, and telephone number of the employers workers compensation insurance carrier. In Connecticut, employers must advise all employees in writing at the time of hire of the employees rate of pay/salary; hours of employment; and wage payment schedules. In New Jersey, employers must notify employees when they are hired of the rate of pay and the regularly scheduled paydays. Employees in New Jersey must also be notified in advance of any changes in the pay rates or paydays.

Employers often use offer letters to confirm the details of an offer of employment, such as position, duties, pay and benefits.
Employee Handbooks
A properly drafted employee handbook is an effective means for employers to convey their rules, objectives, and corporate culture to employees. A well-drafted handbook also can reduce the risk of adverse employment litigation against the employer. Overly broad or ambiguous policies, on the other hand, can create major pitfalls for employers. Some of the significant employment policies that should be included in an employee handbook are discussed below.

Equal Employment Opportunity and AntiHarassment Policies

Every handbook should include the employers Equal Employment Opportunity (EEO) and anti-harassment policies. At a minimum,

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

these policies should prohibit discrimination and harassment with respect to employees who belong to any of the protected categories under federal anti-discrimination law (race, color, religion, sex, national origin, age, disability). Employers must also consider relevant state anti-discrimination laws, which may be more inclusive than federal law. The Illinois Human Rights Act, for example, makes it illegal for employers to discriminate against individuals on account of their sexual orientation, even though sexual orientation is not protected under federal law. It is also illegal in Illinois to make employment decisions based on an individuals military status, arrest record, or because the employee or job applicant is protected under an order of protection. Local ordinances, too, may offer protection that extends beyond federal anti-discrimination law. Businesses operating in Chicago, for example, must comply with the Cook County Human Rights Act and the Chicago Human Rights Ordinances, both of which contain additional protected classifications.

or discrimination. The policy should emphasize that the employer will not retaliate against any employee who reports misconduct or takes part in an investigation. However, employees should be advised in the policy that the employer cannot guarantee complete confidentiality during the investigation. Many handbooks also contain a separate Internal Complaint Procedure that provides employees with an outlet to voice their complaints regarding working conditions more generally. The Internal Complaint Procedure should be consistent with the employers anti-harassment and EEO reporting procedures so that employees are not confused by different reporting mechanisms, which may deter them from addressing an issue.

National Labor Relations Act (NLRA) and Protected Concerted Activity

The National Labor Relations Act (NLRA) applies to both nonunion and unionized workforces. Section 7 of the NLRA protects the rights of employees to discuss the terms and conditions of their employment with co-workers and outsiders; this is referred to as protected concerted activity. Employers cannot promulgate rules that will have a coercive or chilling effect on such activities. In recent decisions, the National Labor Relations Board (NLRB) has found Section 7 violations with respect to a number of policies often found in a handbook, including work rules policies, anti-harassment policies, discipline policies, social media policies, confidentiality policies, and solicitation and distribution policies. For example, the Board has ruled that certain social media policies prohibiting employees from disparaging the employer on social media sites violate the NLRA. Employers should carefully review their handbooks in light of recent NLRB decisions protecting concerted activity rights.

A properly drafted employee handbook is an effective means for employers to convey their rules, objectives, and corporate culture to employees.
An employers anti-harassment policy should be more expansive than just prohibiting sexual harassment; it should prohibit harassment based on every protected characteristic under federal and state law. In other words, an employers anti-harassment policy should be consistent with and refer to the same protected categories as the EEO policy. The anti-harassment and EEO policies also should contain clear reporting procedures, including several options for employees to report complaints of alleged harassment and/

Vacation Policies
Employers also may run afoul of the law when drafting vacation policies. In some states, for example, vacation time and Paid Time Off (PTO)

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

are considered wages that must be paid when an employee is terminated, even if the employee has not worked for the employer long enough to be entitled to take the vacation/PTO. Thus, employer policies that do not pay out remaining vacation and PTO when an employees employment is terminated could violate some state laws. Use it or lose it vacation policies, on the other hand where employees who fail to use all of their vacation time or PTO at the end of the year will lose it are lawful in many states if the employer can prove the employee was on notice of the policy and the employee had a reasonable chance to use the vacation time before losing it.

may discipline an employee who performs unauthorized overtime, but the discipline cannot be failure to pay overtime.

Leave Policies
Another potential minefield for employers is an incorrectly drafted leave policy. Many employers have policies that address leaves of absence pursuant to the Family and Medical Leave Act (FMLA), a personal leave of absence policy, and/ or a disability leave of absence policy. Some policies provide for automatic termination if the employee does not return to work when the leave period expires, regardless of any accommodations the employee may need, including additional leave, alternate work schedule, or other work restrictions. Any policy that imposes a capped time limit on the amount of leave available to its employees may violate the ADA. Leave policies should be flexible and employers should evaluate each request for leave on an individual basis.

An employers anti-harassment policy should be more expansive than just prohibiting sexual harassment; it should prohibit harassment based on every protected characteristic under federal and state law.
Posters
There are several posting requirements that apply to many employers:

Equal Employment Opportunity

Every employer covered by nondiscrimination and EEO laws is required to post on its premises the Equal Employment Opportunity is the Law poster, which is available from the EEOC and other sources.

Fair Labor Standards Act

Every employer of employees subject to the Fair Labor Standards Acts minimum wage provisions must post a notice explaining the Act in a conspicuous place in all of its locations.

Unauthorized Overtime Policies

Employee handbooks commonly contain extensive policies regarding payroll practices, which are typically ripe with inaccuracies that may result in significant liability to the employer. For example, a policy stating that employees will not be paid for working unauthorized overtime is illegal. Employees must be paid for all of the hours they work. To avoid this problem, employers should clearly identify the workweek, state that overtime must be approved in advance, and that an employee will be subject to discipline for not receiving prior approval. An employer

Family and Medical Leave Act

All covered employers are required to display and keep displayed a poster prepared by the Department of Labor (DOL) summarizing the major provisions of the Act and telling employees how to file a complaint.

Occupational Safety and Health Act

Employers subject to the Occupational Safety and Health Act are required to post a notice notifying employees of the protections of the Act.

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Uniformed Services Employment and Reemployment Rights Act

Employers are required to provide to persons entitled to the rights and benefits under the Uniformed Services Employment and Reemployment Rights Act (USERRA) a notice of the rights, benefits and obligations of such persons and their employers under USERRA. Some states also require additional postings. For example, New Jerseys Family Leave Insurance law provides eligible employees with up to six weeks of family leave benefits to care for a newborn or newly adopted child, or to care for a child, spouse, domestic partner, civil union partner or parent with a serious health condition. New Jersey employers must distribute and post the Family Leave Insurance Poster prepared by the New Jersey Department of Labor and Workforce Development regarding this law.

supervisory employees and to all new supervisory employees within six months of their assumption of a supervisory position. Additionally, each employer covered by the law must provide sexual harassment training and education to each supervisory employee in California once every two years. Similarly, in Connecticut an employer having 50 or more employees must provide two hours of training and education to all supervisory employees within six months of their assumption of a supervisory position. In Maine, employers with 15 or more employees must conduct an education and training program for all new employees within one year of commencement of employment that includes, at a minimum, the following information: (1) the illegality of sexual harassment; (2) the definition of sexual harassment under state and federal laws and federal regulations; (3) a description of sexual harassment, utilizing examples; (4) the internal complaint process available to the employee; (5) the legal recourse and complaint process available through the Maine Human Rights Commission; (6) directions on how to contact the Commission; and (7) protection against retaliation. Employers must conduct additional training for supervisory and managerial employees within one year of commencement of employment that includes, at a minimum, the specific responsibilities of supervisory and managerial employees, and methods that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints Employers must be careful to comply with the training laws of the states in which they operate.

Employers are not required by federal law to conduct EEO or harassment training for their employees... Some states require employers to conduct harassment training for certain employees.
Training
Employers are not required by federal law to conduct EEO or harassment training for their employees (though federal contractors are required to train certain personnel to ensure that their affirmative action obligations are implemented). Some states require employers to conduct harassment training for certain employees. For example, in California an employer having 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all
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Payment of Wages Upon Separation

Employers are not required by federal law to immediately give former employees their final paycheck. Some states, however, have special requirements regarding when and how wages must be paid upon separation. For example, in

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

California, if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. If an employee not having a written contract for a definite period quits his employment, his wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. In Illinois, employers must pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case no later than the next regularly scheduled payday for such employee. Moreover, in no case shall an employer withhold all or part of the final compensation due an employee while the employer awaits return of property in the possession of the employee, unless the employees express written consent is given freely at the time the deduction is made. In Massachusetts, any employee discharged from such employment must be paid in full on the day of his discharge. Employers must be sure to comply with the termination laws of the states in which they operate.

system is in effect and for at least one year after its termination. Under the federal Fair Labor Standards Act (FLSA) record-keeping requirements applicable to the Equal Pay Act (EPA), employers must keep payroll records for at least three years. In addition, employers must keep for at least two years all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment.

EEOC regulations require that employers keep all personnel or employment records for one year.
When a legal claim has been filed against an employer, it must retain all employment records relating to the issues under investigation as a result of the claim, including those related to the individual bringing the claim and all other employees holding or seeking positions similar to that held or sought by the affected individual(s). Once a claim is filed, these records must be kept until the final disposition of the claim.

Record Keeping
EEOC regulations require that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, EEOC regulations provide that the employees personnel records must be retained for one year from the date of termination. Under federal Age Discrimination in Employment Act (ADEA) record-keeping requirements, employers must also keep all payroll records for three years. Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Immigration Reform and Control Act

The federal Immigration and Nationality Act (INA) governs immigration and citizenship in the United States for all employers. The INA requires employers to verify an employees eligibility to work in the United States. Within three days of hire, employers must complete an Employment Eligibility Verification Form, commonly referred to as a Form I-9. This form requires an employer to examine acceptable forms of documentation supplied by the employee to confirm the employees citizenship or eligibility to work in the United States. Employers can only request documentation specified on the Form I-9. Employers do not file the I-9 with the federal government. Rather, an employer is required to keep a Form I-9 on file for three years after the date of hire or one year after the date of the employees employment termination, whichever is later. The U.S. Immigration and Customs Enforcement (ICE) agency conducts routine workplace audits to ensure that employers are properly completing and retaining I-9 Forms, and that employee information on I-9 Forms matches government records. 3. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound foreign to present particular documents the employer does not require other employees to present. USCIS has explained that these practices may constitute unlawful document abuse and should be avoided when verifying employment authorization. All employment-authorized individuals are protected against this type of discrimination. INAs provision against document abuse covers employers with four or more employees.

NonDiscrimination and Document Abuse

INA prohibits four types of unlawful conduct: citizenship or immigration status discrimination; national origin discrimination; unfair documentary practices during the Form I-9 process (document abuse); and retaliation. As to document abuse, the United States Citizenship and Immigration Services (USCIS) agency has explained that such abuse can be broadly categorized into three types of conduct: 1. Improperly requesting that employees present a particular document, such as a green card, to establish identity and/or employment authorization; 2. Improperly rejecting documents that reasonably appear to be genuine and relate to the employee presenting them; and
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The U.S. Immigration and Customs Enforcement (ICE) agency conducts routine workplace audits to ensure that employers are properly completing and retaining I-9 Forms, and that employee information on I-9 Forms matches government records.

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

E-Verify
Employers can use information taken from the Form I-9 to verify electronically the employment eligibility of newly hired employees through E-Verify. E-Verify is a federal government-run Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. While Form I-9 requires employers to collect information, there was no way for employers to verify that the information employees provide is valid or that the documents presented are genuine, until E-Verify. Using E-Verify gives employers a defense to a claim that they knowingly hired an unauthorized alien. But the defense is not absolute. Employers may still face civil and criminal liability if, based upon the totality of the circumstances, it can be established that they knowingly hired or continued to employ unauthorized workers. E-Verify is a voluntary program for most employers, except for most government contractors and except in states that may require it.

E-Verify is a federal governmentrun Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States.

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

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Employment At-Will and the Equal Employment Opportunity Laws

The employee that I terminated does not have a shred of evidence that Ive done anything wrong. Its my word against his, so how can he possibly have a case? Plus, this is an at-will state. I can terminate him for any reason, right? That is what many employers will say and mean it. To be sure, employment at-will is presumed in 49 states (everywhere but Montana), and it permits an employer to terminate an employee for a good reason, a bad reason, or no reason at all. Nonetheless, the reality is that the doctrine does not matter as much as employers might think, because many exceptions to it have been created over the years. Title VII, the PDA, ADA, and ADEA also contain anti-retaliation provisions, which prohibit an employer from taking adverse action (such as termination) against an individual that complains of discrimination under the law or otherwise exercises his rights under the law.

Discrimination Exceptions
For starters, the federal government has created many exceptions to the at-will doctrine. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against applicants and employees on the basis of sex, race, color, national origin, and religion. Title VII applies to employers who have 15 or more employees. The Pregnancy Discrimination Act (PDA) prohibits discrimination against applicants and employees on the basis of pregnancy. The PDA applies to employers that have 20 or more employees. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified applicants and employees with disabilities. The ADA applies to employers that have 15 or more employees. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against applicants and employees on the basis of age. However, it does not protect individuals under the age of 40, although some states have laws that protect younger workers from age discrimination. The ADEA applies to employers that have 20 or more employees.
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The Americans with Disabilities Act (ADA) prohibits discrimination against qualified applicants and employees with disabilities. The ADA applies to employers that have 15 or more employees.
Lastly, many states have also enacted fair employment practices laws that prohibit discrimination on a broader number of bases than the federal statutes. For example, some states have prohibited discrimination on such grounds as marital status, political affiliation, sexual preference, and personal appearance. In addition, some states may have state or local anti-discrimination ordinances that cover smaller employers for the same categories protected by the federal laws discussed above.

Public Policy and Whistle-Blower Exceptions

Other areas of federal law have also created certain exceptions to the at-will doctrine. For example, the most well known is the False Claims Act (FCA), which provides financial incentives for the reporting of fraud against the U.S. government. The FCA is one of the prime whistle-blowing laws. It provides substantial rewards to whistle-blowers who prosecute successful law suits in the name of the

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

government against individuals or companies who have fraudulently claimed federal funds. Legislatures in each of the fifty states and the District of Columbia have also enacted whistleblower protection statutes in some form. While these laws vary greatly in many respects, a central point of the laws is protecting employees who engage in certain activities. Examples of such activities include: dismissal for serving on a jury; dismissal for filing a workers compensation claim; dismissal for refusing to perjure oneself; refusing to participate in an illegal activity; exercising a legal right or interest; and exposing some wrongdoing by the employer. In addition, some states have recognized the covenant of good faith and fair dealing as an exception to the at-will doctrine. For example, some states have held that retaliatory discharge in violation of public policy would violate the covenant. This could include an employee who was terminated for complaining about safety violations. Nonetheless, the majority of states have not recognized the covenant of good faith and fair dealing, and have said that it is contrary to the atwill doctrine.

case. Depending on the type of case, examples of circumstantial evidence include the timing of a termination (for example, was it close in time to a complaint of discrimination?), stray remarks that may seem innocent on their face (such as, we need a more vibrant and energized workforce), evidence of how others have been treated in similar circumstances, what employer policies say or do not say, whether the plaintiff was qualified for the position, whether the plaintiff was replaced by someone outside of the protected category, and whether the plaintiff had received good performance reviews.

...some states have recognized the covenant of good faith and fair dealing as an exception to the at-will doctrine.
A jury is permitted to rule in favor of a plaintiff based entirely on inferences they draw from such circumstantial evidence. Thus, if a jury concludes that an employers story does not line up with the facts or otherwise did not justify the action taken, they are free to rule in favor of the plaintiff and conclude the real reason for the employers action was unlawful discrimination or harassment. Lastly, but certainly not least, a plaintiffs burden of proof in court is relatively low. A plaintiff need not prove beyond a reasonable doubt that an employer unlawfully discriminated against her or harassed her. Rather, a plaintiff need only prove that an employer more likely than not discriminated against her. In hard numbers, this means that a plaintiff who proves her case by a mere 50.1% can win about the same odds as a coin toss.

Understanding How Legal Claims Work

Of course Im not going to fire an employee for one of the reasons listed in those laws, so I dont have anything to worry about, right? Wrong. A plaintiff does not need smoking gun evidence that an employer acted unlawfully. Courts recognize that workplace discrimination comes in many subtle, different forms. To be sure, discriminatory behaviors and actions can be blatant. For example, a manager might say, Fire Tom, hes too old. Or, a text might read, Lauras absences that are related to her medical problems are too extensive, terminate her. But those cases are rare. Courts understand that discrimination is normally much more subtle and difficult to prove. As a result, courts allow plaintiffs to use circumstantial evidence to prove their

Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

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Drug Testing
Statistics show that a majority of drug and alcohol abusers in the United States are employed: 75 percent of illicit drug users over 18, nearly 80 percent of binge and heavy drinkers, and 60 percent of adults with substance abuse problems. These statistics are cited on a U.S. Department of Labor (DOL) General Workplace Impact page on the DOL website (http://www.dol.gov/compliance/ topics/safety-health-working-partners.htm) and taken from the Working Partners National Conference Proceedings Report sponsored by the DOL, the Small Business Administration (SBA), and the Office of National Drug Control Policy (http://www.tn.gov/labor-wfd/dfwp.html#thecost). Not surprisingly then, the use of drug-free workplace policies is becoming standard business practice. There is no federal or state law that completely prohibits an employer from utilizing drug testing to address the problem of substance abuse in the workplace. Moreover, with the exception of certain employers who do business with the federal government and some state governments, employers are not required by law to create a drug-free workplace policy. Thus, drugfree workplace policies are largely voluntary. There are many reasons why an employer may want to implement a drug-free workplace policy: to comply with federal regulations, where applicable (for example, certain employees must be tested pursuant to regulations of the U.S. Department of Transportation); to ensure the safety of employees and customers; to improve efficiency drug and alcohol abuse among employees results in lost productivity, increased absenteeism, drug-related accidents, medical claims and theft; to control insurance costs; to reduce workers compensation premiums (some states provide discounts to employers who implement drug-free workplace programs); to discourage drug users from applying for employment; and to avoid legal claims. However, this does not mean that drug testing does not present any legal risks for employers. Many states have detailed laws that regulate drug testing, and there are remedies available for applicants and employees who may want to challenge decisions that are made based on drug tests. As a result, it is important for employers to comply with the applicable legal requirements before starting a drug-testing program.

Statistics show that a majority of drug and alcohol abusers in the United States are employed: 75 percent of illicit drug users over 18, nearly 80 percent of binge and heavy drinkers, and 60 percent of adults with substance abuse problems.

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Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

Wage and Hour Laws

Workers are suing more than ever. While discrimination and sexual harassment cases have historically dominated the employment litigation arena, the number of wage and hour cases has risen dramatically over the past decade. A wage and hour case is the general description for a case filed under the federal Fair Labor Standards Act (FLSA) and/or state law concerning the alleged nonpayment of full and timely wages. Moreover, according to the most recent statistics, the Wage and Hour Division of the U.S. Department Labor (DOL) finds violations of the FLSA approximately three-quarters of the time that it investigates an employer. Point being, employers should proceed with caution. The following represents an overview of key federal wage and hour requirements. Remember, however, that state laws can be stricter than the FLSA. Where federal law and state law conflict, employers must comply with the law that is more protective for employees. for exemption, the DOL has said that employees generally must meet certain tests regarding their job duties and be paid on a salary basis of not less than $455 per week.

Deductions from Pay

Under federal law, whether you can deduct from an employees pay will depend on whether he or she is a nonexempt (hourly) or an exempt employee. Employers at times require nonexempt employees to pay or reimburse the employer for certain items. For the cost of any items that are considered primarily for the benefit or convenience of the employer, no deduction may be made from an employees wages, which would reduce the employees earnings below the required minimum wage or overtime compensation. Employers may not avoid FLSA requirements by having a nonexempt employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employees wages. An employer also may not refuse to pay overtime when a nonexempt employee works overtime without approval. An employer may discipline the employee, but must pay overtime for the hours worked. In contrast to nonexempt employees, employers can rarely deduct from an exempt employees salary. Deductions are permissible in certain limited circumstances, including: the employee is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions

The Basics
Workers who are covered by the FLSA are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. However, some states require a higher minimum wage. Under the FLSA, overtime pay at a rate of not less than one and one-half times an employees regular rate of pay is required after 40 hours of work in a workweek. Employees in some positions can be exempt from the minimum wage and overtime requirement. Employees in exempt positions do not receive overtime pay no matter how many hours they work in a workweek. Since they do not receive overtime pay, there is no need for an employer to keep records of the specific hours they work. The FLSA provides exemptions from minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional, and outside sales employees. The FLSA also exempts certain computer employees. To qualify

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of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

On-Call Time
Under federal law, nonexempt employees who are on call must be compensated for their time if the employers control over them is such that they cannot use the time effectively for their own purpose. Sometimes this is referred to as the distinction between waiting to be engaged (when the employee has significant flexibility to do what they want) and engaged to wait (when the employees flexibility is much more limited). There are no bright line rules to determine the compensability of on-call time. Rather, a determination as to whether the time is compensable depends on the facts of the situation. Relevant factors include whether the employee is required to remain on the employers premises; whether there are excessive geographical restrictions on the employees mobility; the frequency of the calls/emails/texts which may limit mobility; the extent to which the employee can trade calls with a co-worker; and the extent to which the employee is permitted to engage in personal activities. Meal Periods and Breaks Under federal law, meal periods generally are not compensable if they are 30 minutes or longer, and the employee is relieved of all duties and is free to use the time effectively for a meal. Breaks or rest periods that are 20 minutes or longer are usually not compensable if the break or rest period is long enough to allow the employee to be relieved of all duties, and there is no evidence the employer is attempting to avoid the requirements of the FLSA.

Travel Time
Under federal law, ordinary home-to-work and work-to-home travel time by a nonexempt employee that is outside normal working hours is not compensable. Similarly, travel time from home to the first work site of the day, and from the last work site of the day, by a nonexempt employee is not counted as hours worked even if it is not the employees normal work site, so long as the commuting distance does not exceed the normal commuting distance in the area. This rule applies even when the nonexempt employee is driving a company vehicle, provided the vehicle is a type that would normally be used for commuting. Travel time outside normal working hours on a nonexempt employees one-day assignment in another city is compensable. Travel time that a nonexempt employee spends traveling as part of his or her principal activity, such as traveling between job sites, is compensable. Travel time a nonexempt employee spends on travel for an overnight trip is compensable for the portion during the employees normal working hours, even on days the employee does not ordinarily work. Travel time as a passenger on an airplane, train, boat, bus, or automobile outside normal working hours that results in an overnight stay is usually not compensable (unless the employee performs work while a passenger). In contrast to nonexempt employees, an exempt employees salary covers all hours worked. As a result, an exempt employee that is paid on a salary basis is not entitled to additional pay for travel time.

Severance Pay
Severance pay is sometimes granted to employees upon termination of employment. There is no requirement in the FLSA to provide severance pay. Such pay is a matter of agreement between an employer and an employee.

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Workplace Safety
Employee safety remains important for all employers. The Occupational Safety and Health Act (Act) is administered by the Occupational Safety and Health Administration (OSHA), which in turn regulates safety and health conditions in most private industries. In general, the Act covers all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. OSHA explains that it has two main functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods, or processes reasonably necessary and appropriate to protect workers on the job. Employers must become familiar with the standards applicable to their establishments and eliminate hazards.

OSHA explains that it has two main functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces.
Walking/Working Surfaces
Floors, aisles, platforms, ladders, stairways, and other walking/working surfaces are present, to some extent, in all general industry workplaces. Slips, trips, and falls from these surfaces constitute the majority of general industry accidents. The OSHA standards for walking and working surfaces apply to all permanent places of employment, except where only domestic, mining, or agricultural work is performed.

General Requirements
OSHA has explained that the following are common safety requirements that apply to many general industry employers.

Medical and First Aid

OSHA requires employers to provide medical and first-aid personnel and supplies commensurate with the hazards of the workplace. The details of a workplace medical and first-aid program are dependent on the circumstances of each workplace and employer. Even in areas where OSHA has not set forth a standard addressing a specific hazard, employers are responsible for complying with the OSH Acts general duty clause. The general duty clause [Section 5(a)(1)] states that each employer shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Hazard Communication Standard

This standard is designed to ensure that employers and employees know about hazardous chemicals in the workplace and how to protect themselves. Employers with employees who may be exposed to hazardous chemicals in the workplace must prepare and implement a written Hazard Communication Program and comply with other requirements of the standard.

Emergency Action Plan Standard

OSHA recommends that all employers have an Emergency Action Plan. A plan is mandatory when required by an OSHA standard. An Emergency Action Plan describes the actions employees should take to ensure their safety in a fire or other emergency situation.

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Updated Hazard Communication Standard

OSHA has been busy with regulatory priorities that affect employers. In particular, it has published a final rule bringing its hazard communication standard into accord with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The final rule makes three significant changes in the current hazard communication standard. The first two affect chemical manufacturers directly. The third impacts any employer in the country using hazardous chemicals in the workplace.

Hazard Classification
The GHS rule changes the means by which chemical manufacturers determine whether, and to what extent, a chemical is hazardous. OSHAs current hazard communication standard requires manufacturers to consider as hazardous any chemical used in the workplace for which there is statistically significant evidence, based on at least one study conducted in accordance with established scientific principles, that acute or chronic health effects may occur in exposed employees. Under the existing standard, a health hazard includes chemicals that are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, and sensitizers, among others. The new rule standardizes the classification process used by manufacturers. Manufacturers would classify any health or physical hazards of the chemical and determine the category of each class. The rule then requires manufacturers to place the chemical into further subcategories.

OSHA has been busy with regulatory priorities that affect employers. In particular, it has published a final rule bringing its hazard communication standard into accord with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
Training
Largely as a result of the first two changes, OSHAs final rule requires employers to train employees on the New Hazard Classifications, labels, and SDSs. Thus, every employer in the country that has a Hazard Communication Program must retrain its employees in the new system.

Enforcement Activity
OSHA is also continuing to maintain historically high enforcement levels. The agency is bringing significant cases and, as a result of its enhanced administrative penalties memorandum, employers are seeing higher proposed penalties. From a conceptual standpoint, OSHAs enforcement efforts serve to strongly encourage employers to find and fix issues at the workplace on their own, without prompting from OSHA. Employers cannot afford to relax their safety and health programs. Employers should consider the following actions to ensure compliance: review work sites for uncontrolled hazards; examine record-keeping logs and other incident reports for areas of concern; engage employees and front-line supervisors in hazard identification and control; and control and review annually the effectiveness of safety and health efforts.

Provision of Labels and Safety Data Sheets

Once a manufacturer classifies a hazardous chemical, it must communicate that information to downstream users. The rule would standardize the labels and Safety Data Sheets (SDSs) (replacing current MSDSs) used to convey this information. OSHA believes these changes would allow employers and employees to understand better the important information conveyed on the SDSs.

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Memorandum on Safety Incentive Programs

In a memorandum to Regional Administrators and Whistle-Blower Program Managers, OSHA Deputy Assistant Secretary Richard Fairfax has provided guidance on employer practices that OSHA believes can discourage employee reports of injuries and violate sections of the Act or other whistle-blower statutes. The memorandum states definitively, [R]eporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c). It also lists the following most common potentially discriminatory policies: Taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. [A]n employers policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury. Taking disciplinary action against employees who report an injury or illness and the stated reason is that the employees have violated an employer rule about the time or manner for reporting injuries and illnesses. OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employees right and ability to report. Taking disciplinary action against employees who are injured on the job because they violated a safety rule, when the rule violation is simply a pretext for discrimination.

Establishing incentive programs that may discourage reporting of injuries. For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time.

OSHA is also continuing to maintain historically high enforcement levels. The agency is bringing significant cases and, as a result of its enhanced administrative penalties memorandum, employers are seeing higher proposed penalties.
Employers should make any needed adjustments to their policies.

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Disability Leave Management

Disability and leave management sits at the intersection of various federal and state laws, including the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Genetic Information Nondiscrimination Act (GINA), Pregnancy Discrimination Act (PDA), Age Discrimination in Employment Act (ADEA) and their state counterparts. Given this complex array of legal mandates, disability and leave management is a constant source of frustration for employers. In addition to the routine employment decisions involving injured or ill employees or individuals with family caregiving responsibilities, one particular area of confusion for employers is determining how much leave an employee is legally entitled to take and in what form. To make this issue even more challenging, the agency charged with enforcing the ADA, the Equal Employment Opportunity Commission (EEOC), has been very critical of common employer leave practices, such as fixed leave and no-fault attendance policies that establish uniform limits and standards for workers. The discussion below provides an overview of some of the federal legal requirements in this area of the law and highlights critical issues for employers. accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . appropriate adjustment or modifications of examinations, training materials or policies. The ADA also includes job protected leave as a potential reasonable accommodation for disabled workers, but offers no guidance on how much leave must be provided. Employers must engage in an interactive process to determine whether a reasonable accommodation is available for employees with disabilities.

The ADA is a federal law that prohibits discrimination against a qualified individual with a disability, meaning a disabled individual who can perform the essential functions of his or her job either with or without a reasonable accommodation.
The ADA Amendments Act (ADAAA), which took effect in January 2009, makes it significantly easier for a plaintiff to establish that he or she is disabled under the ADA. In addition, the ADAAA makes clear that [a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This means that a number of conditions that would not be considered disabilities prior to enactment of the ADAAA now fall under the ADAs definition of disability, requiring employers to provide reasonable accommodations.

The Americans with Disabilities Act

The ADA is a federal law that prohibits discrimination against a qualified individual with a disability, meaning a disabled individual who can perform the essential functions of his or her job either with or without a reasonable accommodation. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Employers are obligated to provide disabled employees with reasonable accommodations under the ADA so long as doing so does not pose an undue hardship. Reasonable

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Practical Guidance on Employment Law Compliance: What Do You Really Need To Know?

The Family and Medical Leave Act

The FMLA is a federal law that provides employees that work for a covered employer up to 12 weeks of unpaid leave in a 12-month period for the birth, adoption, or foster care of a child; to care for a child, spouse, or parent with a serious health problem; for the employees own serious health condition that renders the employee unable to perform the functions of his or her job; or for any qualifying exigency arising out of the fact that one of a number of certain enumerated relatives of the employee is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation. In addition, eligible employees are entitled to 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member. The statute also requires that group health benefits be maintained during any FMLA-qualifying leave and has a number of requirements with respect to medical certifications and other paperwork. The FMLA permits employees to take leave intermittently if medically necessary, which makes tracking the amount of leave taken by the employee challenging. Whereas the FMLA protects the job security of an employee who is unable to perform the essential functions of his or her position, the ADA requires that the employee be able to perform the essential functions of the position with or without reasonable accommodation. Despite this difference, the EEOC maintains that individuals covered by the ADA may be entitled to more than 12 weeks of unpaid leave as a reasonable accommodation.

it illegal for employers to request that employees undergo genetic testing or provide family medical information, except in limited circumstances. Unlike the ADA, GINA does not prohibit discrimination based on the actual presence of a genetic disorder. However, GINA places restrictions on the types of questions an employer can ask an employee about his or her family history of mental illness, as well as how the employer must store information it receives regarding an employees genetic information. One of the ramifications of GINA is that it makes efforts more complicated to manage employee disabilities proactively and prevent illness through voluntary wellness programs. Employers must now have employees sign authorizations before providing family medical histories and provide notices directing doctors not to provide genetic information, while conducting routine medical evaluations. Enforcement Activity The EEOC has been aggressively pursuing employer leave policies that automatically terminate employees after exhausting all available leave provided by law or company policy. In the EEOCs view, such individuals may still be qualified individuals with disabilities entitled to additional leave time as an ADA reasonable accommodation. In many cases, the EEOCs challenges come with allegations of systemic discrimination against a class of individuals and have resulted in settlements in the millions of dollars. Contemporaneous with this targeted enforcement effort, employees are filing ADA charges with the EEOC at a record pace. In 2011, there was an almost 36 percent increase from the previous year in monetary relief obtained by the EEOC on behalf of individuals who filed disability discrimination charges with the agency. At the same time, the ADAAA makes it easier for plaintiffs to sue employers in court, as many more conditions are now considered disabilities under the law. Within this legal framework, employers must routinely evaluate their leave management protocols and individually assess all requests for leave.

The Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits health insurers and employers from discriminating against individuals because of their genetic composition, and makes

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Conclusion
As you can see, employment law compliance is a hot topic with many different layers and nuances. With constant changes in policy and regulations by federal agencies, states and courts, it is difficult to keep up with all of the new rules, determine how they affect you, and stay in compliance. ADP TotalSource is well versed in legal and regulatory developments, and it stays on top of new rules that affect your business. ADP TotalSource updates clients about new developments of significance in a timely way and offers clear action plans that allow clients to focus on their business objectives.

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About ADP TotalSource

A part of ADPs Employer Services Division, ADP TotalSource provides employers with a comprehensive Human Resources outsourcing solution that helps reduce the costs and complexities related to employment and human resources management. For companies and HR departments that seek to return their focus to their core processes, ADP TotalSource removes administrative and regulatory burdens, allowing more effort to be expended on strategic initiatives. Our affordable outsourcing opportunities have the ability to significantly reduce operating costs and streamline business operations, paving the way for growth and competitive gains. To learn more about how ADP TotalSource can help your business call 1-800-HIRE-ADP (800-447-3237) or visit us online at www.adptotalsource.com.

About Jackson Lewis

Jackson Lewis is a strategic alliance partner with ADP TotalSource. For more than 50 years, Jackson Lewis has placed a high premium on preventive strategies and positive solutions in the practice of workplace law. With nearly 700 attorneys practicing in 48 offices nationwide, Jackson Lewis has a national perspective and sensitivity to the nuances of regional business environments. www.jacksonlewis.com.

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HR. Payroll. Benefits.

This material is subject to change and is provided for informational purposes only and nothing contained herein should be taken as legal opinion, legal advice, or a comprehensive compliance review. The ADP logo, ADP, and ADP TotalSource are registered trademarks of ADP, Inc. In the Business of Your Success is a service mark of ADP, Inc. All other trademarks and service marks are the property of their respective owners. MKT198 1012 Printed in the USA 2012 ADP, Inc.