Employers are required to comply with numerous laws governing their workplace at both the federal and state levels. Some laws apply regardless of the size of your workforce, while others only apply if your workforce contains a certain number of employees. Below you will find a recap of the major federal employment laws. Every year we distribute this Tip with an overview of the major employment laws with which employers have to comply. It is a great way to test your knowledge, and the HR knowledge of your colleagues, particular as to “What’s New in 2016.”  

Major Employment Laws Overview.

Laws with No Minimum Employee Number.  

FLSA.  The Fair Labor Standards Act (FLSA) is a federal law which establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Generally, overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek unless the employer and employee have agreed on compensation under a fluctuating workweek methodology. It is important to note that not all states permit this payment arrangement. “Hours worked” ordinarily include all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace. Employers must display an official poster outlining the requirements of the FLSA. Employers must also keep employee time and pay records.  What’s New in 2016: Beginning December 1, 2016, in order to properly classify an employee as exempt from the minimum wage and overtime requirements under the Executive, Administrative or Professional exemptions (and Computer Professionals paid on a salary basis), that employee must earn a minimum of $913/week or $47,476/year. That minimum will automatically increase every 3 years.  More information on the FLSA can be found at http://www.dol.gov/whd/flsa/.

IRCA. The Immigration Reform and Control Act of 1986 (IRCA) was passed to control and deter illegal immigration to the United States. Its major provisions stipulate legalization of undocumented aliens who had been continuously unlawfully present since 1982, legalization of certain agricultural workers, sanctions for employers who knowingly hire undocumented workers, and increased enforcement at U.S. borders. Employers are, perhaps, most familiar with IRCA’s requirement that they verify a prospective employee’s authorization to work legally in the United States through the use of the Form I-9, which underwent its most recent revision in 2013.  What’s New in 2016: According to the USCIS, employers should continue using the Form I-9, Employment Eligibility Verification, even after the Office of Management and Budget control number expiration date of March 31, 2016, has passed. The USCIS will provide updated information about the new version of Form I-9 as it becomes available.

USERRA. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members' reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation. The employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:

• The person must have been absent from a civilian job on account of service in the uniformed services;
• The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
• The cumulative period of military service with that employer must not have exceeded five years;
• The person must not have been released from service under dishonorable or other punitive conditions; and
• The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training. USERRA also allows an employee to complete an initial period of active duty that exceeds five years. Employers are required to provide a notice of the rights, benefits, and obligations under USERRA of employers and such persons who are entitled to the protections of USERRA.  Comprehensive HR clients should ask their Service Team for a copy of our Sample USERRA policy.

OSH Act.  Under the Occupational Safety and Health Act of 1970 (OSH Act), employers are responsible for providing a safe and healthful workplace. The Act governs the following industries: Construction, Maritime and Agriculture, as well as some General industry. Unless partially exempt from the Act’s reporting requirements (ie. if your company had ten (10) or fewer employees at all times during the last calendar year, or your business is classified as a specific low hazard retail, service, finance, insurance, or real estate industry you do not need to keep injury and illness records), employers must use OSHA Forms 300, 300-A, and 301, or equivalent forms, to track and report recordable injuries and illnesses. At the end of each calendar year, employers are required to review their OSHA 300 log of workplace injuries to verify that the entries are complete and accurate and to correct any deficiencies identified. Employers must then create a summary of the injuries and illnesses recorded (Form 300-A), certify that summary, and post it in a conspicuous place, or places where notices to employees are typically posted. What’s New in 2016: In light of recently published final rule on electronic reporting, covered employers must soon begin notifying employees of their rights to report injuries and illnesses and to be free from retaliation for doing so. According to a recent press release, the effective date of this anti-retaliation provision has been extended from August 10, 2016, to November 1, 2016. This final rule also requires establishments with 250 or more workers, and certain smaller high-risk industry establishments, to electronically file their 300A beginning in July 2017, and requires that all 3 Forms be filed starting in 2018 and annually thereafter.

Laws Applicable to Covered Employers with 15 or More Employees.

Title VII. Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, prohibits employment discrimination based on race, color, religion, sex and national origin. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants' and employees' sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer's business. The Pregnancy Discrimination Act amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The

EEOC has clarified that “gender identity and transgender status” are encompassed within the meaning of “sex” and are, therefore, afforded protection under Title VII. Also, the U.S. Supreme Court recently ruled that, if an employer offers light duty to some employees, while the employer does not have to offer that light duty to employees with a pregnancy related disability, a failure to do so may support an employee’s claim of pregnancy discrimination.

Laws Applicable to Employers with 20 or More Employees.

COBRA. The Consolidated Omnibus Budget Reconciliation Act (COBRA) passed in 1986. COBRA provides certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates. In order for an employee to qualify for the temporary continuation of benefits under COBRA there must have been a “qualifying event” and the person to be covered must be a “qualified beneficiary.” Employers must notify plan administrators of a qualifying event within 30 days after an employee's death, termination, reduced hours of employment or entitlement to Medicare. A qualified beneficiary must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation or a child's ceasing to be covered as a dependent under plan rules. Employers must send plan participants and beneficiaries an “election notice” no later than 14 days after the plan administrator receives notice that a qualifying event has occurred. The individual then has 60 days to decide whether to elect COBRA continuation coverage. The person has 45 days after electing coverage to pay the initial premium. COBRA beneficiaries generally are eligible for group coverage during a maximum of 18 months for qualifying events due to employment termination or reduction of hours of work. Certain qualifying events, or a second qualifying event during the initial period of coverage, may permit a beneficiary to receive a maximum of 36 months of coverage. For more information go to http://www.dol.gov/ebsa/cobra.html where you can also find a model General Notice and a model Election Notice.

Laws Applicable to Covered Employers with 50 or more employees.

FMLA. The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year. Employers are also required to maintain the group health benefits of those eligible employees during the leave. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Leave can be taken for any of the following reasons: 1) for the birth and care of the newborn child of an employee; 2) for placement with the employee of a child for adoption or foster care; 3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or 4) to take medical leave when the employee is unable to work because of a serious health condition. Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work. Employers are required to post a notice of employee Rights under the FMLA. 

Please contact your Relationship Manager or Service Team to discuss any questions or requests for additional information.