 |  | Employment Law - Employer FAQ
Employment Law
Employment Law
Faqs
How must an employer respond to a request for accommodation?
An employer who has received a request for
accommodation of a disability from an employee or applicant, or who has been
informed by an employee or applicant that he or she is disabled and may need
assistance, has an obligation under the Americans with Disabilities Act to
engage in an "interactive process" with the employee or applicant.
When accommodation is sought by an employee, the
employer may ask an employee to show that he or she is, in fact, disabled and in
need of some accommodation, and then must work with the employee and, if
appropriate, his or her health provider, to determine what accommodation would
be appropriate. The employee likewise has an obligation to cooperate with the
employer in providing information, and must notify the employer if an offered
accommodation is not sufficient. An employer is not expected to be a mind-reader
nor must it take entire responsibility for finding an appropriate accommodation.
Furthermore, an employee may not request an accommodation and then refuse to
provide any evidence that he or she is disabled or is, in fact, in need of an
accommodation. Finally, an employee may not reject all offered accommodations by
the employer if those accommodations would be effective.
Where accommodation is sought by an applicant for
employment, the employer has less right to seek medical information confirming
that the applicant is actually disabled. On the other hand, the employer also
has less obligation to accommodate. An employer generally need not invest in
work site changes or adaptive equipment for an applicant, but must allow an
applicant to bring appropriate adaptive equipment to the interview or make an
interview location accessible, which may often be accomplished simply by
temporarily moving to a different office.
Finally, an employer need not provide either an
employee or an applicant with the precise accommodation he or she requests, or
the best possible accommodation available (which is often also the most
expensive accommodation). Instead, the employer is free to provide any
accommodation that effectively allows the employee to perform his or her job
duties or allows the applicant to participate fairly in the interview process.
Likewise, the employer is not required to provide accommodations that are not
work-related. For example, a disabled employee may, in general, be in need of a
wheelchair, but the employer is not required to provide it for her. The employer
may, however, be required to provide an employee with a cot, accessible
bathroom, or modified work schedule if such accommodations would enable the
employee to perform his or her job.
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What must an employer do if it suspects that an employee performance problem is
caused by a medical condition?
An employer who is faced with substandard performance
by an employee, need not automatically determine whether the performance problem
is caused by a disability covered by the Americans with Disabilities Act. Often,
however, the employer is already aware that the employee has a medical problem
and suspects that the performance problem is related. In that situation, the
employer may have an obligation, before firing or disciplining the employee, to
determine whether the performance problem is, in fact, caused by a disability,
and whether the problem would be alleviated with some reasonable accommodation.
For example, an employer may have been informed by
the employee that he or she has been diagnosed with clinical manic depression,
and may then see a decline in the employee's performance. The employer need not
assume that the performance problem is caused by the depression, but may ask the
employee whether he or she has any explanation for the problem. If the employee
states that it is caused by his or her depression, the employer must then engage
in an interactive process with the employee to determine whether some
accommodation, such as a leave of absence, might assist the employee. If the
employee does not link the performance problem to his or her disability,
however, the employer is not required to assume that they are related.
Furthermore, if no reasonable accommodation exists or is effective in improving
the employee's performance, the employer is not required to lower the employee's
performance expectations simply to avoid firing him or her.
Similarly, an employer may know that the employee is
an alcoholic, and may learn that he or she has been drinking on the job. The
employer may ask the employee if this violation of company rules is caused by
his or her alcoholism, and if it is, may be required to allow the employee to
seek rehabilitation before disciplining or firing the employee. Should the
employee refuse or fail rehabilitation or treatment, or continue to drink on the
job, the employer may then fire the employee.
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Must an employer give employment references?
An "employment reference" is the popular name for
the recommendation (or warning) that an employer may give to a potential future
employer about a former employee. In the past, employers freely gave such
references, whether good or bad, to anyone who requested one. Many employers now
refuse to release any information about a former employee, however, due to fear
of litigation.
For example, an employer who gives a negative
reference that is inaccurate may be sued for defamation by the present or former
employee. Defamation occurs when a party "publishes" (that is, discloses to
others) a statement about another which is false and which tends to harm the
other person's reputation or standing in the community. An employer's statement,
even if false, is protected by a "qualified privilege," however, if the employer
made a reasonable investigation or had other reason to believe the statement was
true, and made the statement to those who had reason to know. The privilege is
designed to help employers protect the community from dishonest or dangerous
former employees. Thus, an employer may disclose to another potential employer
that its former employee was fired for fraud, if the employer conducted a
reasonable investigation of the allegation. In contrast, if the employer merely
fires the employee because of a rumor that the employee stole from the employer,
and then tells others that the employee was fired for theft, the employee may be
able to recover for defamation.
An employer must also be on guard not to invade the
employee's privacy, for example, by disclosing private family or medical
information about the employee to a potential employer. A private citizen may
state a claim for invasion of privacy where another has disclosed information
that is not of general interest to the public, and where such disclosure would
be offensive to the reasonable person.
Finally, an employer that gives a false positive
reference, if it knows that, in fact, that reference is inaccurate, may spark a
lawsuit by the future employer if the former employee then engages in some
misconduct. For example, an employer who fires an employee for violence in the
workplace, but tells a potential employer that the employee was a wonderful
performer, may find itself sued if the former employee then harms an employee or
customer of the new employer.
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What must an employer do if it receives a complaint of harassment?
An employer who receives a complaint of harassment
on the basis of race, gender, national origin, age, religion, or disability has
an obligation, under federal law and the law of most states, to investigate the
complaint and then take "prompt, appropriate remedial action." If the employer
determines that the employee's complaint is unjustified, then taking no action
at all may be appropriate. On the other hand, if the employer determines that
some or all of an employee's complaint is grounded in fact, the employer must
take an action, which is reasonably calculated to end the harassment. Such
action could include moving or demoting the alleged harasser, disciplining the
harasser and formally noting the discipline in his or her personnel file,
requiring him or her to take training, or firing the harasser.
In contrast, an employer may not respond to a
complaint of harassment by simply firing the accused harasser, without regard to
whether the complaint is justified. While this may, indeed, prevent any future
harassment, if the complaint was untrue, the accused harasser may then sue the
employer, claiming "defamation by self-publication." Such a claim is based on
the theory that the fired employee, in telling prospective future employers why
he or she was fired, is forced to say that he or she was fired for sexual
harassment, and thus forced to publish a false and harmful statement about him-
or herself. If, on the other hand, the employer conducts a reasonable
investigation of the complaint, it will then be protected by the "qualified
privilege" against defamation, even if the complaint turns out to have been
unjustified.
Finally, an employer may not retaliate against an
employee who has brought a complaint of harassment, and must prevent the
harasser from retaliating against the employee. Demoting the employee, moving
him or her to a different, less desirable position, or subjecting the employee's
performance to increased scrutiny may all be seen as retaliation.
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What should an anti-harassment policy contain?
An employer who does not enact an anti-harassment
policy may automatically be held liable for harassment of an employee by a
supervisor. In addition, although an employer may not automatically be held
liable for harassment of an employee by a coworker, an employee who claims
illegal harassment will have a difficult time showing that the employee "knew or
should have known" of the harassment if the employer provided the employee with
a reasonable avenue of complaint which the employee failed to use.
An anti-harassment policy should typically be in
writing, posted in the workplace, and distributed to all employees. It should
explain that harassment is illegal and not tolerated in the workplace and
specifically explain what constitutes illegal harassment. For example, although
sexual harassment is the best known form of illegal harassment, such a policy
should explain that harassment on the basis of race, national origin, religion,
age, or disability is also illegal. The policy should specifically mention
harassment, and not simply tell employees that any complaint about the workplace
in general may be directed to human resources or a supervisor.
Most critically, such a policy should contain a
reasonable avenue of complaint process for employees. A policy that requires an
employee to complain to his or her supervisor will not be considered
"reasonable" if the supervisor is the person harassing the employee. Similarly,
a policy which requires the employee to submit a written, witnessed complaint to
one distantly located officer of the company may be considered unduly burdensome
or intimidating to employees, and more likely to discourage than encourage
complaints.
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Must an employer perform formal performance reviews?
There is no legal requirement that every employer
perform formal performance reviews of employees, just as there is no general
requirement that an employer have "just cause" to fire an employee. An employer
may, however, be required by the terms of an employment contract, employee
handbook, or collectively bargained (union) agreement to review an employee
annually or more often.
Even where an employer is not required to conduct
regular performance reviews, such reviews can be valuable evidence that will
help to defend an employer against a claim of discrimination, retaliation, or
wrongful termination. For example, an employer may be able to use an annual
performance review to show that an employee was fired not because of his or her
race, age, or gender, but because of his or her documented poor performance.
Similarly, an employer may show that another employee was promoted because his
or her performance reviews were consistently better than those of the
complaining employee and not because the employee had complained about hazards
in the workplace.
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May an employer convert some or all of its employees to independent contractors
and thereby avoid paying employment-related taxes and benefits?
An independent contractor is a worker who is
self-employed and who performs work for an employer on a "project" or
contractual basis. Independent contractors are also known as "contract" or
"contingent" workers. Whereas an employer must often pay for state or federally
mandated benefits for its employees, such as Social Security, workers'
compensation, and unemployment compensation, independent contractors are not
entitled to such benefits. In addition, an employer is required to withhold
payroll taxes from an employee's pay, whereas an independent contractor must pay
such taxes himself or herself.
Whether a worker is legally an independent
contractor will not be governed by the title that the employer places on the
relationship, even if the worker signs a contract agreeing to the title.
Instead, it will be governed by the duties actually performed by the worker and
the degree of supervision that the employer imposes upon the worker. For
example, a contractor who holds a high-level position with the employer, works
at the employer's workplace, is paid by the hour, uses the employer's equipment,
or takes specific and detailed directions regarding his or her job duties from
an employer, is likely to be characterized as an employee by government
entities, even if the worker has agreed with the employer to be characterized as
an independent contractor. In contrast, a worker who is paid on a project (and
not hourly) basis, works for more than one company at a time, works out of his
or her own office or home, uses his or her own equipment, and is given a task to
accomplish and left to his or her own discretion as to how to go about doing so,
is more likely to be classified as an independent contractor.
An employer whose "contractors" are retroactively
determined to be employees may be required to pay back employment taxes and
penalties. In addition, if the employer sponsors certain employee benefit plans
for its employees, such as health insurance or a pension program, the employer
may be required to retroactively provide the contractors with those benefits as
well, depending on the terms of the individual benefit plans. Therefore, before
converting "employees" to "independent contractors," an employer should consult
an attorney.
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Must a company provide a smoke-free workplace to its employees?
Although second-hand tobacco smoke is widely
believed to be a cause of illness, federal law does not require that every
employer provide a smoke-free workplace to its employees. Only in certain
situations must an employer eliminate smoking from its facilities. The
Occupational Safety and Health Act may require a smoke-free workplace where, for
example, industrial contaminants may mix with smoke and create air quality that
is so poor that it violates workplace safety standards. In addition, a growing
number of states and local governments have mandated that all or part of a
workplace be kept smoke-free, for the protection of clients and customers as
well as employees. Finally, an employee who is rendered "disabled" by tobacco
smoke in the workplace, perhaps because of asthma, or who has some other
disability which makes it dangerous for the employee to be exposed to tobacco
smoke, may be able to require his or her employer to provide the employee with a
smoke-free workplace as a "reasonable accommodation" of that disability.
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May an employer award bonus pay or time off to an "exempt" employee who works
extra time?
An "exempt" employee, or an employee who is not
entitled to payment of overtime compensation, must be paid a "salary" which does
not vary with the number of hours the employee works. Under the Fair Labor
Standards Act, a mark of exempt status is that the exempt employee may decide
for him- or herself how many hours his or her job requires, whether more or less
than forty per week. An employer can therefore destroy an employee's exempt
status, and become liable for past overtime pay to the employee, if the employer
makes a practice of altering an employee's pay based on how many hours he or she
works in a week or requiring the employee to work a set number of hours in a
week.
The Department of Labor and the courts that construe
the Fair Labor Standards Act currently disagree on the appropriate
interpretation of these rules. While it is clear that an employer violates FLSA
if it takes improper deductions from an employee's pay because the employee has
missed work, it is unclear whether an employer may reward an employee
specifically for working additional hours, either through extra pay or through a
"time off" plan. Courts have held in the past, however, that an employer may
convert his or her employee into an "hourly" employee who is entitled to
overtime payments by paying the employee extra compensation if that employee
works more than forty hours in one week, particularly if the employer awards
that extra pay on an hourly basis. Similarly, an employer who requires its
exempt employees to work a certain number of hours each week, and permits those
employees to miss work only if they have worked "extra" hours in previous weeks,
may destroy the employees' exempt status. On the other hand, it is clear under
the law that an employer may pay an exempt employee a bonus based on an increase
in sales or general productivity. An employer may also expect an exempt employee
to work fewer hours when the workplace is less busy, just as the employer may
expect the employee to put in extra hours when the pace of work picks up, as
long as the employer does not alter the employee's pay if he or she fails to
work a certain number of hours per week.
When may an employer refuse to allow an employee to take FMLA leave or refuse to
reinstate an employee after such leave?
An employer who meets the minimum size requirements of
the Family and Medical Leave Act must allow an employee who has been employed
for at least one year and who has worked slightly more than one-half time in the
past year, to take up to twelve weeks of unpaid leave for medical reasons, or to
care for a new baby, child, or family member with a serious medical condition.
There are certain situations, however, in which an employer may delay or deny
such leave. For example, an employee must give thirty days' notice of his or her
need for leave if possible. An employee who plans necessary but not emergency
surgery must give the employer such advance notice. If the employee fails to do
so, the employer may require the employee to delay his or her leave until the
notice period has elapsed. Furthermore, an employer may refuse or delay a leave
if the employee fails to provide timely medical certification of the need for
leave, whether the leave is for the employee's medical condition or to care for
another.
An employer may decline to reinstate an employee if he
or she fails to return at the end of his or her twelve weeks of leave or if his
or her position has been eliminated during the leave, if the position would have
been eliminated regardless of whether the employee took a leave. Likewise, if
the employer notifies the employee at the time he or she begins a medically
related leave that the employee will be required to provide certification of
fitness for duty before he or she may return, the employer may refuse to
reinstate the employee until he or she provides such certification. Finally, if
the employee notifies the employer at some point during the leave that he or she
does not intend to return, the employer's obligation to reinstate the employee
ends. This is the case even if the employee later changes his or her mind. The
employer's obligation to continue paying for the employee's group medical
coverage also ceases.
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Learn More:
Employment Law
Until the turn of the century, there were virtually no
laws governing the employment relationship. For good or for bad, an employer was
free to offer any terms or conditions of employment it wished, and an employee
was free to leave if he or she was not satisfied. Although this situation was,
by and large, better for the employer than the employee, the employer also had
few legal protections; for example, an employee who was injured in the workplace
could sue the employer or his or her coworkers for negligence damages. The first
laws enacted to govern the workplace created specific causes of action for
injured employees, and at the same time limited their ability to sue the
employer.
With the growth of labor unions in the 1920s and 1930s,
the federal government took an increased role in regulating the workplace,
enacting minimum wage and overtime requirements, and mandating safety standards.
By the 1960s, the federal government and many state governments had made
discrimination on the basis of race, gender, national origin, religion, and age
illegal, and by the early 1990s, workers who were disabled or needed medical
leave gained additional protections.
Today a complex network of laws governs the
employer-employee relationship with many provisions requiring government
reporting or record-keeping. The more employees an employer hires, the more such
laws apply to it, and the more likely the employer is to inadvertently violate a
law simply because it is unaware of its requirements.
Affirmative action is the effort by employers to remedy past
discrimination in the workplace or industry by making a special effort to
hire women or members of certain minority groups. Most private employers are
not required to conduct affirmative action, and in fact, may violate the law
by doing so. Government employers and contractors, in contrast, are often
required by law to institute affirmative action programs.
The Americans with
Disabilities Act (ADA) prohibits discrimination against any disabled
employee or applicant who could, with or without a reasonable accommodation of
that disability, perform a job. The act also requires an employer to provide
accommodation, such as modified work hours or duties, or special equipment, if
such an accommodation is not "unduly burdensome" and is necessary to help the
disabled employee perform his or her job.
The Employee Retirement
Income Security Act (ERISA) governs how private employers must manage
employee benefit plans, such as pension funds, health insurance, and disability
benefits. ERISA sets certain limitations on the way the funds in such plans may
be invested, and prohibits an employer or plan administrator from wrongly
refusing to provide plan benefits, such as refusing to pay disability benefits
to a plan participant who is truly disabled.
Employee rights include
the right to privacy, to be reinstated to work under certain circumstances if
the employee serves with the military, and limits on an employer's right to
conduct a background or credit check, garnish employee wages, or require an
employee to take a polygraph test.
Employment contracts
include written agreements signed by the employer and employee, as well as
"implied" contracts created by employee handbook terms or verbal agreements. An
employment contract can govern the length of employment, vacation, benefits and
stock ownership, circumstances under which the employee may be fired, and
whether the employee may compete with the employer after he or she has left the
job.
Employment discrimination
is prohibited by federal law, and by additional laws enacted by most states.
Discrimination on the basis of race, national origin, gender, age, disability
and religion is illegal under federal law. Some states, cities or counties also
bar discrimination on other grounds, such as sexual orientation. Harassment on
the basis of membership in one of these protected categories is a form of
discrimination.
The Family and Medical Leave
Act (FMLA) requires employers to offer up to twelve weeks of unpaid leave
to an employee because of his or her own serious health condition, the birth or
adoption of a child, or the need to care for an ill relative. The employer is
required, in most circumstances, to reinstate the employee to his or her former
position once the leave is over.
The Federal Employers'
Liability Act (FELA) provides a way for employees of railroads to sue their
employers for injuries sustained on the job. The law is, in essence, the federal
railroad worker counterpart to state workers' compensation statutes.
Municipal employment
(employment by a city government) is governed by special employee protections,
including the right to due process of law, such as an administrative hearing,
before an employee is terminated, and additional privacy protections.
The Occupational Safety and
Health Act (OSHA) was enacted in 1970, and requires every employer to
provide a workplace that is free of dangers that could physically harm an
employee. The law covers everything from dangerous equipment to long-term
exposure to pollutants or radiation.
Pensions, benefits and
compensation are governed by an array of laws, including the Employee
Retirement Income Security Act, the Fair Labor Standards Act, and laws such as
COBRA, which requires an employer to continue some forms of employee insurance
coverage for a period of time after the employee has been terminated. Some
employment benefits are also mandated by state or federal law, such as Social
Security, unemployment compensation, and workers' compensation.
Sexual harassment is a
form of discrimination that is barred by federal law and laws in most states.
Sexual harassment includes creating a "hostile or offensive" work
environment-such as by tolerating offensive language or pictures or unwelcome
sexual conduct directed at an employee-and requiring an employee to submit to
unwelcome sexual advances in order to remain employed or receive some job
benefit.
Wage and hour laws
include the Fair Labor Standards Act, which sets the federal minimum wage and
requires that overtime compensation be paid to some employees, and many state
laws, which may impose even higher requirements than federal law. Wage and hour
laws also govern whether and when children may work.
Whistleblower laws
prevent retaliation against employees for reporting or complaining about a
violation of the law by the employer or in the workplace. Federal whistleblower
statutes are included in environmental laws, and many states also bar
retaliation against whistleblowers.
The Worker Adjustment and
Retraining Notification Act (WARN Act), requires an employer to give
written notice to union representatives or to state agencies and individual
employees prior to closing a plant or making a mass layoff.
Wrongful termination
refers to terminating an employee in violation of public policy, such as when
the employee has made a whistleblower complaint. Many states also recognize a
claim for wrongful termination where the employer has violated its employment
contract with the employee.
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Disclaimer
This publication and the information included in it are
not intended to serve as a substitute for consultation with an attorney.
Specific legal issues, concerns and conditions always require the advice of
appropriate legal professionals.
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Employment Law (Employee)
Employment Law
Faqs
Are there certain questions that an employer may not ask during a job interview?
There are several types of questions that an
employer is legally prohibited from asking in a job interview. For example, an
employer may not seek medical information regarding an applicant, at least not
before the applicant has received a conditional job offer. Questions that seek
inappropriate medical information include: "Are you disabled?" "How many sick
days did you take last year?" "Have you ever made a workers' compensation
claim?" or "Will you require any form of physical accommodation for this job?"
An employer may, however, describe the duties of a job to an applicant and ask
if the applicant can perform those duties, either with or without reasonable
accommodation. In addition, if the applicant clearly has a physical disability
that would seem to prevent the applicant from performing the relevant job
duties, the employer may ask how the employee proposes to perform them.
State anti-discrimination laws also often prohibit
an employer from inquiring about whether an applicant is in a protected class,
such as whether he or she is over age forty or a minority group member.
An employer typically may ask an applicant if he or
she has ever been convicted of a crime. Asking whether an applicant has been
arrested, however, may violate anti-discrimination laws, because the Equal
Employment Opportunity Commission has stated that minority group members tend to
be disproportionately targeted for arrest, and whether someone has been arrested
is not an indication that he or she has actually committed a crime. As a result,
an employer who asks applicants whether they have been arrested, and then
excludes those who have, may discriminate against minority applicants.
Finally, an employer is also prohibited from asking
an applicant whether he or she has participated in a strike in the past or
performed union organization activities.
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When may an employee be entitled to medical leave from work?
An employee who is injured or ill may not be limited
to sick leave, vacation or personal leave if he or she needs time off. There are
many other types of leave that an employer may be required to provide. For
example, if the employee has a serious health condition, the employee may be
entitled to up to twelve weeks of unpaid leave per year under the Family and
Medical Leave Act (FMLA). A serious health condition is an illness or injury
requiring inpatient medical treatment or continuing outpatient treatment by a
health care provider, or a chronic medical condition. Furthermore, many states
have enacted their own family and medical leave-type statutes, some of which
require employers to provide additional leave.
Medical leave may also be an appropriate
accommodation of a disability under the Americans with Disabilities Act. The act
does not specify whether or what type of leave must be given to an employee who
is "disabled" by an illness or injury, but courts have held that an employer may
be required to provide leave beyond sick leave or personal leave if such leave
would be a reasonable accommodation of a disability, as long as the leave is not
unduly burdensome to an employer. A leave of one month might be unduly
burdensome to a very tiny employer who cannot hire a temporary worker to replace
the disabled employee, but a leave of six months might not be unduly burdensome
to a very large employer who can hire a temporary replacement or reapportion
duties. If the employer has allowed other employees to take long leaves for
reasons that are not disability-related, such as sabbaticals for continuing
education, a court may find that the employer is required to allow a disabled
employee to take a similar leave.
An employee who suffers a work-related injury may be
entitled to leave under the state's workers' compensation statute during the
time when the employee is fully or partially disabled from performing his or her
position. Such statutes often require the employer to offer the employee any
available light duty position fitting the employee's physical restrictions, but
if none is available, the employee is likely entitled to leave paid for by the
employer's workers' compensation insurer.
Finally, an employer who includes a medical or
personal leave provision in its employee handbook may be contractually bound to
provide such leave to an employee who requests it.
Each of these types of leave may be taken
concurrently; in other words, an employer may count an employee's workers'
compensation or personal leave towards the employee's annual twelve weeks of
FMLA leave. Just because the employee has exhausted his or her FMLA leave,
however, does not automatically mean that he or she may be fired. The employee
may then be entitled to additional leave, for example, under workers'
compensation law or as an accommodation under the ADA.
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How can an employee secure a "reasonable accommodation" of his or her disability
by an employer?
Even when an employer knows that its employee is
disabled, the employer is not automatically required to find out whether the
employee requires an accommodation. Instead, the burden is on the employee to
make an initial request for an accommodation. The employee need not use the term
"accommodation," but need only inform the employer of the disability and that he
or she needs some assistance in performing job duties. Once he or she has done
so, the employer is required to engage in an "interactive process" with the
employee, to determine whether an accommodation is actually needed, and if so,
what accommodation might be appropriate. Both parties have a responsibility to
cooperate in finding a reasonable accommodation. For example, if the employee
refuses to provide any medical evidence of his or her disability or specifically
notify the employer of the essential job functions that he or she is having
difficulty performing, the employer cannot then be held liable for failing to
provide an appropriate accommodation. Likewise, the employer cannot make a
single offer of an inadequate accommodation and, if the employee refuses it,
decline to search for other alternatives.
An employer may also be required to make reasonable
accommodations if necessary for a job applicant to participate in the
application process. An applicant who believes that he or she may need an
accommodation must, like an employee, inform the employer of the need for
accommodation, and then work with the employer to find an effective
accommodation, if one exists. An example might be moving a typing test to a room
that the applicant can reach or allowing the applicant to bring adaptive
equipment to the interview, such a special keyboards. An employer who responds
to a request for accommodation by telling the applicant that if he or she cannot
participate in the interview process, he or she obviously can't perform the job,
may be violating the law.
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How may an employer monitor employees in the workplace?
In most states, citizens have a right to some
privacy in their persons and affairs, and this right extends into the workplace
to protect employees from over-intrusive monitoring by employers. For example,
employees have a limited right, created by federal and state wiretapping laws,
to privacy in their telephone conversations and voice mail messages. An employer
who wishes to monitor telephone calls or voice mail messages must warn employees
that it is doing so, and establish that the monitoring is undertaken in the
"ordinary course of business," such as to monitor performance or to coach
employees. An employer may also monitor communications if it has reason to
believe that an employee is using the telephone or voice mail to commit theft or
somehow damage the company, but again, only if the employer warns the employee
that it plans to monitor. An employer who monitors phone calls or voice mail
messages for any reason must stop monitoring as soon as it determines that a
call or message is private.
E-mail messages and Internet use does not yet appear to
be protected in the same way that telephone calls are. As a result, an employer
probably may monitor employee Internet use and e-mail messages.
Another way in which employers have monitored
employees is by placing video cameras around the workplace. An employer who
places a camera in the lunchroom or on a loading dock does not violate the law,
but employers have been held liable for invasion of privacy after placing hidden
cameras in bathrooms or in the ceilings of employees' offices.
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When is harassment illegal?
Contrary to popular belief, it is not illegal for a
supervisor to harass an employee simply because he or she doesn't like the
employee's work or doesn't like the employee him- or herself. Harassment is
illegal only if it is based on some protected characteristic of the employee,
such as his or her age, race, national origin, gender, or disability.
In addition, harassment must be "severe and pervasive"
in order to violate the law. Courts have held that the government cannot make
American workplaces pristine, but only may ensure that they are not "hostile and
abusive" to an employee because the employee is a member of a protected class.
Therefore, isolated or occasional use of racial or ethnic slurs, or sporadic
dirty jokes, while offensive, will not violate the law. On the other hand, one
incident of harassment, if it is severe enough, may be enough to violate the
law. An example might be a sexual assault or a beating by coworkers. Likewise,
harassment which is continual or which pervades the work environment is
actionable. Such behavior includes constant dirty jokes or comments, repeated
unwelcome passes, or a workplace decorated with pornographic posters.
Finally, the harassing behavior must be offensive to
the reasonable person and to the employee. Behavior which offends a highly
sensitive employee, but which would not offend a reasonable person in the same
situation, would not violate the law. Likewise, behavior that might offend a
reasonable person, but that clearly did not offend the employee, will not create
a right for damages. In determining whether the employee was offended, a court
or jury will consider whether the employee willingly participated in the
conduct, and whether he or she used reasonably available avenues of complaint to
protest the conduct.
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May an employer or supervisor "play favorites" among employees?
Just like "negative discrimination," or firing or
demoting someone because of their membership in a protected class, giving
special treatment to an employee because of his or her race, age, gender,
national origin, or lack of a disability is illegal under federal and state
anti-discrimination laws, if the special treatment results in some disadvantage
to non-favored employees. Examples of illegal favoritism include giving better
sales territories or special assignments to employees of a certain gender or
race, providing opportunities to such employees that make it more likely they
will be promoted in the future, or judging their performance by easier
standards, so that their performance reviews tend to be better.
On the other hand, it is not illegal to simply have
favorite employees, or to treat some employees better than others, or even to be
unfair-as long as such unfairness is not based on protected criteria like race
or gender. In fact, it is not illegal for a supervisor to have a consensual
affair with a subordinate, and then give that subordinate special favors or a
promotion because of that affair. Courts have held that while this may appear to
be discrimination, in fact, the favoritism is not based on illegal consideration
of any employee's protected status, but instead upon the paramour's special
relationship with the supervisor. Where such relationships are widespread in the
workplace, however, it creates a corporate culture in which it appears that an
employee must have an affair with his or her supervisor in order to be promoted
or get ahead. In such cases, courts have found that the employer created an
environment pervaded with quid pro quo sexual harassment, where an employee is
required to submit to sexual conduct in order to receive certain employment
terms.
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What is considered "working time" under the wage and hour laws?
Any work that an employer "suffers or permits" an
employee to perform is considered compensable time under the wage and hour laws.
This means that if an employer knows that an employee has performed work, even
if the employee was not specifically instructed to do so or if the work was done
outside the employee's normal hours, the employee must be paid for time spent
doing this work. The time will also be counted in determining whether the
employee has worked forty hours in a week, and is thus entitled to "overtime."
An employer may discipline an employee for performing unauthorized work, but the
employer must also pay the employee for that work.
Many pre- and post-work activities have been
specifically addressed by the regulations and court opinions construing the wage
and hour laws. For example, commuting to and from work is generally not included
in working time, nor is changing clothes or washing up at the work site.
Performing other preparatory duties, such as assembling tools or receiving a
work assignment may be considered "hours worked," however. Short rest periods
during the workday, such as fifteen-minute breaks, are hours worked. A meal
period must generally be at least thirty minutes long in order to be excluded
from hours worked.
Time when an employee is "on call" must be
compensated if the employee must, for example, wait at the work site, even if
the employee has no duties during that time. An employee who is free to go about
his or her own pursuits, however, and merely leave a contact number and arrive
when called need not be paid when he or she is not actually performing work.
Likewise, an employee who has private sleeping quarters on the employer's
premises, and who can sleep at least five hours uninterrupted, need not be paid
for the time spent actually sleeping. The employee must be paid when he or she
is interrupted for work, however, and if the employee's sleep is frequently
interrupted, the employee must be paid for the entire time at the work site,
even time spent sleeping.
Time spent on training or education is not
considered "hours worked" as long as the employee's participation is completely
voluntary, the employee attends outside of his or her regular working hours, and
the employee performs no productive work during the class. Finally, time spent
traveling for the employer is "hours worked" if the traveling is part of the
employee's principal activities (for example, traveling between multiple work
sites, or a day trip to an out-of-town location), although travel undertaken for
an overnight trip is not compensable unless the travel is done during normal
working hours, or the employee actually works as he or she is traveling.
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Is an employer limited in its ability to fire an employee?
Although employment is presumed to be "at will"
(meaning that the employer may fire the employee for any reason, or no reason),
this at-will presumption is limited by a number of competing rules. For example,
an employer may not fire an employee for discriminatory reasons, such as because
of his or her race or gender. The employer also may not fire the employee
because the employee has engaged in a protected activity. Protected activities
include complaining of harassment, discrimination or another violation of the
law, filing a lawsuit against the employer claiming discrimination, filing a
workers' compensation claim, or participating in an investigation of the
employer by an administrative agency such as the Equal Employment Opportunity
Commission or the Environmental Protection Agency. An employee who can show that
he or she was fired shortly after engaging in such a protected activity may be
able to sue the employer for illegal retaliation.
An employer may also be limited in its ability to
fire an employee by the terms of a union contract or collective bargaining
agreement, or by the terms of a contract with the individual employee. Finally,
if the employer is a public entity, such as a federal, state or local
government, a school district, or a government agency, the employer may be
required to provide the employee with notice and an opportunity to be heard
before firing the employee, and may also be required to show "just cause," such
as poor performance or the violation of a work-related rule by the employee, in
order to fire the employee.
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May an employer fire an employee and then ask the employee to sign a waiver of
claims or severance agreement?
Many employers will offer some form of severance
payment to an employee who has been fired or laid off, but will make that
payment contingent on the employee signing an agreement to release any potential
claims he or she may have against the employer, such as for breach of contract
or discrimination. Such agreements are generally legal, but are often
enforceable only if the employer complies with certain requirements.
For example, the employer must make clear just what
potential claims the employee may be waiving in the agreement, such as by
listing the various laws (for example, Title VII or the Americans with
Disabilities Act) under which the employee will no longer be able to sue. The
employer must also give the employee an opportunity to review and consider the
agreement and to consult an attorney if he or she wishes to do so. In fact, some
laws, such as the Age Discrimination in Employment Act, specifically require
that the employer advise the employee to contact an attorney, and even require
the employer to offer the employee up to three weeks to consider whether he or
she wants to sign the agreement. An employer who presents an employee with a
severance agreement at the same meeting in which the employee is fired and
demands that the employee sign it then and there or do without severance, will
have a hard time enforcing the agreement against the employee later.
Likewise, some laws mandate that, in order to
effectively waive claims under the law, the employee must be able to rescind or
revoke his or her acceptance of the agreement for a period of time after the
employee signs it, usually a week or two. This, like the mandatory
"consideration period," is designed to make sure that an employee is not
pressured into signing away his or her rights during the stressful period right
after being fired.
Finally, some potential claims simply cannot be
waived, even by an otherwise effective severance agreement. For example, claims
under the Fair Labor Standards Act (the federal wage and hour law) cannot be
waived by agreement between the employer and employee. Instead, the Department
of Labor must be allowed to participate in any such agreement, to ensure that
employees are treated fairly.
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What may an employer say about why an employee left or was fired?
An employer generally may disclose, both to an
employee's co-workers and to potential employers, the true reason why an
employee left or was fired. In addition, an employer who inadvertently discloses
the wrong reason-stating that the employee was fired for theft, for example,
when the employee in fact didn't steal anything-may be protected from suit by a
"qualified privilege." The qualified privilege is designed to help an employer
protect other businesses and members of the public from persons whom it believes
to be dishonest. This privilege is only available, however, where the employer
has conducted a reasonable investigation into the statements which it makes, and
where it discloses the information only to those who have a reasonable need to
know. An employer who receives a report of theft or sexual harassment by an
employee, conducts a thorough investigation, fires the employee and then tells
other potential employers the reason for the firing is probably protected, even
if the report was wrong. An employer who hears a rumor that an employee has
stolen and promptly fires the employee without investigating, and then tells the
newspaper that he or she was fired for stealing, could be sued for defamation.
Many employers, out of fear of suit, now decline to
release any information, good or bad, about present or former employees, or
require an employee seeking such information (such as a favorable reference) to
sign a release of any potential claims arising out of the information.
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Learn
More:: Employment Law
The relationship between employers and employees was
originally governed by the assumption that an employer was free to offer any
terms for employment, and the employee was free to either accept or reject those
terms. There were few protections for employees, whether from low wages,
discrimination, or a physically dangerous work environment. In the teens and
1920s, however, American workers began to organize themselves into unions. In
the 1930s the federal government formally recognized, with the enactment of the
National Labor Relations Act (NLRA), that individual employees often lacked the
power to force employers to pay fair wages or to provide a safe workplace. The
NLRA set off an avalanche of new laws governing the workplace.
At first, these laws merely supplemented the work of
labor unions, such as by mandating a minimum wage and overtime payments. With
the Civil Rights Movement of the 1960's, however, the federal government,
followed by many state governments, began to enact laws prohibiting
discrimination against women and minority group members, and barring
discrimination against older employees. In 1970 the federal government enacted
the Occupational Safety and Health Act, setting minimum workplace safety
standards. By 1990 Congress had enacted laws prohibiting discrimination against
disabled workers, and requiring employers to reasonably accommodate such workers
if the accommodation was not unduly burdensome.
There are now scores of federal and state laws
governing the treatment of employees and applicants by employers, and many state
courts have recognized additional employee rights that have not been set out in
written statutes, but are instead part of "common law," based solely upon
earlier court rulings.
Affirmative action is the effort by employers to remedy past
discrimination in the employer's workplace or industry by making a special
effort to hire women or members of certain minority groups. Most private
employers are not required to conduct affirmative action, and in fact, may
violate the law by doing so. Government employers and contractors, in
contrast, are often required by law to institute affirmative action
programs.
The Americans with
Disabilities Act (ADA) prohibits discrimination against any employee or
applicant who could, with or without a reasonable accommodation of that
disability, perform a job. The act also requires an employer to provide an
accommodation, such as modified work hours or duties, or special equipment, if
such an accommodation is not "unduly burdensome" and is necessary to help the
employee perform his or her job.
The Employee Retirement
Income Security Act (ERISA) governs how private employers must manage
employee benefit plans, such as pension funds, health insurance, and disability
benefits. ERISA sets certain limitations on the way the funds in such plans may
be invested, and prohibits an employer or plan administrator from wrongly
refusing to provide plan benefits, such as by refusing to pay disability
benefits to a plan participant who is truly disabled.
Employee rights include
the right to privacy, to be reinstated to work under certain circumstances if
the employee serves with the military, and limits on an employer's right to
conduct a background or credit check, garnish employee wages or require an
employee to take a polygraph test.
Employment contracts
include written agreements signed by the employer and employee, as well as
"implied" contracts created by employee handbook terms or verbal agreements. An
employment contract can govern the length of employment, vacation, benefits and
stock ownership, circumstances under which the employee may be fired, and
whether the employee may compete with the employer after he or she has left the
job.
Employment discrimination
is prohibited by federal law, and by additional laws enacted by most states.
Discrimination on the basis of race, national origin, gender, age, disability,
and religion is illegal under federal law. Some states, cities or counties also
bar discrimination on other grounds, such as sexual orientation. Harassment on
the basis of membership in one of these protected categories is a form of
discrimination.
The Family and Medical Leave
Act, (FMLA), requires employers to offer up to twelve weeks of unpaid leave
to an employee because of his or her own serious health condition, the birth or
adoption of a child, or the need to care for an ill relative. The employer is
required, in most circumstances, to reinstate the employee to his or her former
position once the leave is over.
The Federal Employers'
Liability Act (FELA) provides a way for employees of railroads to sue their
employers for injuries sustained on the job. The law is, in essence, the federal
railroad worker counterpart to state workers' compensation statutes.
Municipal employment
(employment by a city government) is governed by special employee protections,
including the right to due process of law, such as an administrative hearing,
before an employee is terminated, and additional privacy protections.
The Occupational Safety and
Health Act (OSHA), was enacted in 1970, and requires every employer to
provide a workplace that is free of dangers that could physically harm an
employee. The law covers everything from dangerous equipment to long-term
exposure to pollutants or radiation.
Pensions, benefits and
compensation are governed by an array of laws, including the Employee
Retirement Income Security Act, the Fair Labor Standards Act, and laws such as
COBRA, which requires an employer to continue some forms of employee insurance
coverage for a period of time after the employee has been terminated. State or
federal law also mandates some employment benefits, such as Social Security,
unemployment compensation, and workers' compensation.
Sexual harassment is a
form of discrimination that is barred by federal law and laws in most states.
Sexual harassment includes creating a "hostile or offensive" work environment by
tolerating offensive language or pictures or unwelcome sexual conduct directed
at an employee, and requiring an employee to submit to unwelcome sexual advances
in order to remain employed or receive some job benefit.
Wage and hour laws
include the Fair Labor Standards Act, which sets the federal minimum wage and
requires that overtime compensation be paid to some employees, and many state
laws, which may impose even higher requirements than federal law. Wage and hour
laws also govern whether and when children may work.
Whistleblower laws
prevent retaliation against employees for reporting or complaining about a
violation of the law by the employer or in the workplace. Federal whistleblower
statutes are included in environmental laws, and many states also bar
retaliation against whistleblowers.
The Worker Adjustment and
Retraining Notification Act (WARN) requires an employer to give written
notice to union representatives or to state agencies and individual employees
prior to closing a plant or making a mass layoff.
Wrongful termination
refers to terminating an employee in violation of public policy, such as in
response to the employee making a whistleblower complaint. Many states also
recognize a claim for wrongful termination where the employer has violated its
employment contract with the employee.
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Disclaimer
This publication and the information included in it are
not intended to serve as a substitute for consultation with an attorney.
Specific legal issues, concerns and conditions always require the advice of
appropriate legal professionals.
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