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©2009 Alston Hunt Floyd & Ing
Basics on Employment Law
Anna Elento-Sneed
Alston Hunt Floyd & Ing
©2009 Alston Hunt Floyd & Ing
Federal & State Laws Governing Employers
Labor law Equal employment
opportunity Wage & hour Government
contracting Employee benefits Safety & health
Business
transaction Workplace privacy Proprietary rights Wrongful
termination Tort claims
©2009 Alston Hunt Floyd & Ing
Staffing Options
Available options• Employees• Independent contractors• Temporary or leased employees• Volunteers
Differences between options• Degree you can control the individual• Obligation to provide wages and benefits• Responsibility for their injuries• Responsibility for their conduct
©2009 Alston Hunt Floyd & Ing
Staffing Options
Employee IC Temp Volunteer
Control Employer
Controls
IC
Controls
Limited Control
Limited Control
Wages
Benefits
Employer
Provides
None Agency Provides
None
Their
Injuries
Workers
Comp
Lawsuit WC or
Lawsuit
Lawsuit
Injury to 3rd p.
Employer IC or Contracting Company
Temp or Contracting Company
Volunteer or
Company
©2009 Alston Hunt Floyd & Ing
Basics of Compensation
Determine Which Law Applies Federal law – employers engaged in
commerce or production of goods with annual gross volume of $500,000 or more
State law – all employers Exception: Employees with guaranteed
salary of at least $2,000 or more per month If both apply, you follow the law more
favorable to the employee
©2009 Alston Hunt Floyd & Ing
Basics of Compensation
Properly Classify Employees Exempt Employees
Paid guaranteed salary ($2,000 or more per month)
Fall into specific categories: Executive, Administrator, Supervisor (Hawaii only), Professional, Computer Techs (federal only), Outside Sales, Outside Collector (Hawaii only)
Nonexempt Employees Paid at least minimum wage ($7.25/hour) Paid overtime after 40 hours per week Must keep time records
©2009 Alston Hunt Floyd & Ing
Basics of Compensation
Pay Correctly Must have two payroll periods per month Must pay “current” Must pay within 7 days after payroll closes Deductions limited to those required by law, court
order, or permitted by written authorization by employee Cannot require authorization for certain situation
Payment upon separation Must pay on date of termination May pay on regular pay day if employee resigns without
giving one payroll period notice
©2009 Alston Hunt Floyd & Ing
Mandatory Benefits
Unemployment Insurance Provided to all employees Paid by employer through quarterly
contributions (% of payroll) Contributions paid to state Unused contributions are not reimbursed
Provides benefits to employees who are terminated or resign for good cause
Employer may contest award of benefits Presumption is to award benefits
©2009 Alston Hunt Floyd & Ing
Mandatory Benefits
Workers Compensation Paid by employer through purchase of
private insurance Provides partial wage replacement,
reimbursement for medical expenses, and payment for permanent disability
Employer may contest award of benefits Presumption is to award coverage Insurance carrier/employer has burden to
prove otherwise
©2009 Alston Hunt Floyd & Ing
Mandatory Benefits
Temporary Disability Insurance (TDI) Provided to all employees who have been
employed for 14 or more weeks in the State & who work 20 or more hours/week
Coverage provided through insurance Employer pays majority
Max employee contribution = 0.5% of employee’s weekly wage
Provides wage replacement for disabled employees beginning on 8th day up to max 26 weeks
©2009 Alston Hunt Floyd & Ing
Mandatory Benefits
Prepaid Health Care Provided to all employees who work 20 or more
hours/week for 4 or more consecutive weeks Employee may voluntarily waive if he/she is covered by
another plan Coverage provided through insurance
Insurance must meet state requirements Employee contributions limited If employee disabled, coverage continues for 3
months following disability
©2009 Alston Hunt Floyd & Ing
Mandatory Benefits
Leaves of Absence Types of Leave
Pregnancy Family Leave (federal and state) Jury Military Voting
Types of leave required depends upon size of employer and particular situation involved
©2009 Alston Hunt Floyd & Ing
Mandatory Leaves
Pregnancy FMLA HFLL
Coverage All 50+ 100+
Events Disability due to pregnancy or childbirth
Pregnancy, birth, adoption, serious illness of self or family
Pregnancy, birth, adoption, serious illness of family
Length Per doctor 12 weeks 4 weeks
Wages Unpaid Unpaid Unpaid*
Benefits Continues Continues Continues
Reinstate Yes Yes Yes
©2009 Alston Hunt Floyd & Ing
Hiring, Managing &Terminating Employees
These are critical employment decisions
Need to make sure that these decisions are based on legitimate, non-discriminatory business reasons
Key is to document your decision-making process
©2009 Alston Hunt Floyd & Ing
Hiring, Managing &Terminating Employees
Hiring Use job descriptions and employment
applications Be careful if you use testing Plan out your interviews Reference check before you hire Be careful when using offer letters Keep all paperwork
©2009 Alston Hunt Floyd & Ing
Hiring, Managing & Terminating Employees
Managing Adopt policies & procedures
Establishes do’s and don’ts Sets performance standards Consistent, uniform enforcement is important
Adopt communication systems Handbooks, memos, newsletters, bulletin boards Training Meetings
Adopt grievance procedures Use separate procedure for discrimination,
harassment and retaliation complaints
©2009 Alston Hunt Floyd & Ing
Hiring, Managing & Terminating Employees
Terminating Notice Reasonable rule or order Investigation Fair investigation Proof gathered during investigation Equal treatment Penalty
©2009 Alston Hunt Floyd & Ing
ADA Compliance
Understand ADA Process It’s a specific process
Different from workers compensation Different from TDI
Requires employer to work with doctors Impairment: Is employee impaired? Disabling: Is impairment disabling? Essential function: Does disability affect
individual’s ability to perform essential function?
Accommodation: Can disability be reasonably accommodated?
©2009 Alston Hunt Floyd & Ing
ADA Compliance
• Key Documentation• Job description• Medical opinion• Interactive accommodation notes
• Use Regulations to Establish:• Job qualifications• Reasonableness of accommodations• Direct threat
©2009 Alston Hunt Floyd & Ing
Discrimination, Harassment & Retaliation
The Problem Most common form of employment
lawsuits Governed by federal and state laws Lawsuits can be expensive and very
disruptive Supervisors and managers can be held
individually liable, in addition to the company
©2009 Alston Hunt Floyd & Ing
Discrimination, Harassment & Retaliation
Keys to Minimizing Impact Have detailed policy and procedure Train managers, supervisors & employees Have explicit rules for contractors and third
parties Take proactive approach
Encourage early reporting Immediately investigate and complete quickly Take comprehensive remedial actions
(employees, contractors, third parties) Keep meticulous documentation
©2009 Alston Hunt Floyd & Ing
Whistleblowing
The Problem
• Employees may mistakenly believe company is engaging in unlawful, unsafe or unethical practice
• Employment actions taken against such employees become suspect
©2009 Alston Hunt Floyd & Ing
Whistleblowing
Strategies for Managing Problem Educating employees about actual
obligations under the law Create procedure for employees to report
concerns so internal investigation can be conducted Conduct thorough investigation Communicate findings to employees Document findings
If employee takes legal action anyway, will have evidence to defend against claims
©2009 Alston Hunt Floyd & Ing
Final Comments
Employment law is complicated Covered by federal and state laws Laws, regulations and court decisions
change Important for employers to keep up
with the changes You need to be proactive Join organizations that can help you
keep up with the changes