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Employment Law – What You Don’t Know Will Hurt You!

Did you know employment law is subject to the number of employees you have? No matter if you’re a start-up with a few employees, or your business is growing, you must comply with relevant mandated employment law. In today’s article, we will look at a few federal laws and the applicable number of employees so you can know how it impacts your business. We’ll also discuss how State laws can add another layer of complexity.

To understand the scope of many of the federal laws, it is important to know the definition of discrimination.

What is Discrimination in Employment Law?

In the context of employment law, discrimination means taking an adverse action, or a negative action, against an employee.

These adverse actions can be:

  • Failure to hire, train, or offer an opportunity or promote.
  • Failure to offer accommodation as required by law.
  • Offer a lower wage or fewer benefits as compared to their peers.
  • Take more aggressive disciplinary actions against one peer versus another.
  • Reduce pay or benefits.
  • Transfer an employee to a less desirable position, shift, or location.
  • Demote or terminate based on a discriminatory reason.

All of these could be valid reasons an employee would file a discrimination lawsuit against your company.

Federal Employment Law and Company Size

One of the federal employment laws that would apply to companies with 15 or more employees is the ADA or the Americans with Disabilities Act. This protects qualified individuals, whether they’re an applicant or an employee, that may have a disability, from unlawful employment discrimination. Employers are required to provide reasonable accommodation for their disabilities, unless it causes undue hardship.

Title VII of the Civil Rights Act applies to companies with 15 or more employees. This law prohibits discrimination based on race, color, national origin, religion, sex, gender identity, and the list could go on and on.

Another employment law that also applies to companies with 15 or more employees is the Pregnancy Disability Act. This is an amendment of the Title VII Act, which prevents individuals from being discriminated against for being pregnant or giving birth, or from being temporarily disabled due to medically related conditions because of pregnancy or childbirth.

Another law for companies with 15 or more employees is the Genetic Information, Non-discrimination Act (GINA). This makes it unlawful for employers to discriminate against an individual because of genetic information that may be found in family medical history. It also includes any kind of DNA information that might be acquired through testing.

A Few More Employees Means More Compliance Requirements

The Age Discrimination Employment Act applies to companies with 20 or more employees. This prevents discrimination against those who are 40 years old and older. It forbids mandatory retirement ages except for certain executives and high policymakers who are over 65.

The Family Medical Leave Act (FMLA) applies to companies that have 50 or more employees. This basically allows employees to take job protected leave to care for a family member with a serious health condition, or if they themselves have a serious health condition, or birth or adoption of a child.

The Affordable Care Act (ACA), also applies to companies with 50 or more employees. This act mandates and requires employees working at least 30 hours per week to be offered minimal essential health coverage at an affordable rate as all full time employees. If that doesn’t happen, then you could face some serious fines when it comes to the ACA.

Human Resources and State Law

It’s important to understand what laws apply to you at a federal level versus what laws apply to you at a state level. When it comes to state laws some states have heavy regulators. The West Coast and some of the Northeastern states have a little bit more content versus the federal law.

Some states have additional protected classes in employment law, like Title VII. This could include:

  • sexual orientation
  • arrest records when off duty
  • use of legal products and garnishments
  • credit information
  • marital status

Those are additional protected classes in multiple states such as pregnancy accommodation expansion. Some states have robust pregnancy accommodation laws. If an employee is going through a pregnancy related disability, certain laws protect these pregnant employees. Employers may still ask for a doctor’s note, etc., offer light duty, with the burden on the employee to prove that they are disabled.

More and more states are passing paid sick leave employment laws. Basically, many of the state laws are one hour of paid sick leave for every 30 or 40 hours worked, depending on the state. This allows them to use paid sick leave to take care of themselves, or a family member.  

Criminal History, Salary History, and Social Media

There are many states with a Criminal history inquiry ban. This is a ban which prevents employers from asking about a criminal history either until the interview is scheduled, or a contingent job offer is made to the candidate.  There also might be specific notice requirements if you as the employer decide not to hire an applicant because of their criminal history.

A salary history ban in some states prohibits employers from inquiring about a candidate’s current or previous wage, whether directly or through a third party. And some of the salary history bans are standalone employment law, while others are part of the larger Equal Pay Act.

And then lastly, there’s social media privacy. There are many state laws that prohibit employers from requiring or requesting employees or applicants to disclose their social media login credentials. Second, some state laws say employers cannot require or request that an employee or applicant access their personal social media in the employer’s presence or add the employer to their contacts or friends list. Some state employment laws prevent or prohibit retaliation or failure to hire should an applicant or an employee refuse such social media requests for access.

Covering Your Assets Through Employment Law

We know this is a lot of information to try to remember and digest. Let’s be frank. You didn’t get into business to become an employment law expert. Yet, failure to stay on top of it can cause a damaged business reputation and loss of revenue through litigation costs. The solution to this situation is working with an HR consulting firm who has your back. It’s easy and immediate to get help. What are you waiting for? Reach out today!

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employee discipline
AZ HR Employees Laws Legal
Employee Discipline – Get it Right!

No one enjoys having to initiate employee discipline. Yet, this is part of the manager’s responsibility to maintain order and workplace compliance. There’s a few steps that must be followed in order to manage appropriate disciplinary actions and it all begins – and ends – with documentation.

Disciplinary Actions Must Be In Writing

Anytime it is appropriate to discipline an employee, put it in writing. This can be on paper and filed in a paper filing system, sent in email and then printed and saved to employee’s file, or shared and recorded to a digital personnel file. This is for the protection of the manager and the company and it supports an appropriate manager-employee relationship.

Employee Discipline Must Be Timely

It is important to issue the discipline right away. Don’t wait three weeks or until their next performance review. If the issue is a big enough deal to impact the employee’s current or future standing, do it right away. Waiting is not good practice.

Disciplinary Action Must Never Be a Secret

It is not appropriate to keep an infraction secret from the employee and then drop it like a bomb in an employee review. The employee must know about it when it happens. Having issued the discipline in a timely manner and recorded it in writing, provides documentation in support of a future promotion or demotion.

All Disciplinary Records Must Be Filed

No matter what form (paper, email, digital) employee discipline is issued, the disciplinary action must be put in the employee’s personnel file. This is not something you leave laying in the “file” bin or somewhere on or in your desk. Putting proper documentation in the personnel file is necessary for Human Resources to prepare for any litigious actions from a demotion or termination.

Do you have a particularly difficult disciplinary situation you’re struggling with? We’d love to help so you stay in compliance and implement a healthy disciplinary practice. Reach out! We’re here to help.

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Pump Act Update
AZ HR Employee Retention Employees Laws Legal
“Pump Act” Update You Need to Know!

As of April 28, 2023, a Pump Act violation can make an employer liable for legal or equitable remedies under the FLSA. In other words, if an employer violates an employee’s right to reasonable break time and space to pump breast milk, the employee can take appropriate legal or equitable remedies under the FLSA.

If you’re not familiar with the legislation, here’s a Fact Sheet.

The “Pump Act” supports a lactating mother’s right to fulfill her desire to breastfeed her child. It is the goal of legislation to help reduce socioeconomic disparities in breastfeeding rates and the related barriers to breastfeeding for working mothers.

Employers who understand the benefits of breastfeeding can become an advocate and in doing so support better health for mother and child. Not only is breastfeeding good for mother and child, but studies show a mother choosing to breastfeed reduces costs for an employer since health risks to breastfed babies are lower and consequently reducing health care costs.

Here’s a Mini-Guide to help you become a supportive employer to the needs of lactating employees.

Do you have questions about staying in compliance with laws like this and more? Reach out! We’re here to help.

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AZ HR Employees HR Consulting Laws Legal Managers Miscellaneous
Interview Bias Impacting Hiring Decisions

Even the most seasoned of interviewers may fall victim to some common interviewing bias. Managers need proper training to conduct interviews that are non-discriminatory in nature and to avoid exposure to discrimination claims. In addition, awareness of these biases can make interviewers more effective in selecting the right candidate. Some forms of bias are described below.

  • Stereotyping. Stereotyping involves making generalized opinions about how people from a protected class such as sex, religion, age, race, etc. appear, think, act, feel or respond. For example, assuming a male would prefer being employed in a construction job over a teaching job.
  • Inconsistency. Some managers utilize different sets of questions to interview for the same job position amongst different individuals. For example, asking Hispanic candidates about their bilingual skills versus Caucasian applicants is not a recommended practice.
  • First Impression. First impressions can leave a lasting impression. Sometimes during the interview process, the interviewer takes the first thing he or she notices about the candidate and forms his/her opinion regarding the applicant on the first impression. This bias may benefit or harm the candidate’s chances of selection.
  • Halo/Horn Effect. If the interviewer finds one good trait, he or she will favor the candidate (halo). When the interviewer finds one negative trait, he or she will see that to be a disqualifier for the position (horn).
  • Contrast Effect. Contrast bias is present when candidates are compared against each other rather than evaluated based on the job requirements. The tendency is to base a candidate’s individual ranking on one’s position relative to others in the group. If the interview pool consists of a number of outstanding candidates, an average candidate will not be selected. But in a substandard pool, the average candidate may appear to be highly qualified.
  • “Similar to Me”. The “similar to me” effect occurs when the interviewer identifies with the candidate on a personal level, rather than evaluates the candidate on job-related criteria. For Example: The candidate attended the same university as the interviewer.
  • Cultural Noise. This occurs when the candidate’s responses are not factually based, but are socially acceptable answers. Basically, the applicant tells the interviewer what they think the interviewer would like to hear or will help secure the job.

Interview bias may occur intentionally or unintentionally. It is important to be aware of how biases may affect your decision-making when interviewing candidates. Keep biases at bay to ensure equality and effectiveness in the interview process.

Compliance Employees HR Consulting Legal
National Disability Employment Awareness Month

October is National Disability Employment Awareness Month (NDEAM). Declared in 1988 by the United States Congress (though its roots go back to 1945 when Congress urged employment for WWII servicemembers with disabilities) , NDEAM is a good occasion for us to celebrate the contributions of people with disabilities to workplaces and the economy. We also recommend taking this time to better understand employer obligations under the Americans with Disabilities Act and consider how to be more inclusive and accommodating than what the law strictly requires. 

The DOL’s Office of Disability Employment Policy is commemorating NDEAM this year with the theme “America’s Recovery: Powered by Inclusion.” This theme “reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the national recovery from the COVID-19 pandemic.”

We’re glad to see this.

People with disabilities (1 in 4 adults in the United States) are at greater risk of poor outcomes from COVID-19. At the start of the pandemic, workers with disabilities lost their jobs at a higher rate than the general population. As the pandemic continued, those with intellectual disabilities were six times more likely to die from the virus than other members of the population. Helping people with disabilities stay safe and succeed as the pandemic continues will be essential to a full recovery, and employers can play a huge role in that. 

Supporting employees with disabilities may also be vital to the success of individual employers—now and after the recovery. According to a CNBC poll, nearly 80% of workers say that they want to work for a company that values diversity, equity, and inclusion. With roughly half of small businesses struggling to fill roles, competition for talent is fierce. Employers who don’t appear to believe that it’s important to include and support employees with disabilities put themselves at a huge disadvantage. 

What can you do to help?

First, make doubly sure you understand your compliance obligations related to applicants and employees with disabilities. We have lots of resources for you on the HR Support Center. If you search disability in the search bar, you’ll find articles, forms, guides, law summaries, letters, policies, Q&As, videos, and more.

Second, as the pandemic continues, do what you can to accommodate employees with disabilities who may be at greater risk of severe illness or death. Accommodations to consider may include remote work for those who can do their jobs from home and extra PPE (e.g., N95 masks, face shields, gloves) for those who need or want to work onsite. Other possible accommodations are different shifts, job changes to reduce physical proximity or public interaction, extra breaks (for handwashing or mental health), permission to keep a minifridge or other personal storage device at one’s workstation, and extra cleaning supplies. All in all, when an employee requests an accommodation, do what you can to try to make it work. Focus on what you can do, not what you can’t.

Third, stress to everyone that respect and empathy are nonnegotiable values. Employees who need extra support so they can do their jobs well aren’t going to ask for it if they believe their concerns will be dismissed or that they’ll be ridiculed or looked down on by coworkers. If they don’t feel like they can ask for an accommodation, they’re more likely to look for a job elsewhere. And if they stay, it’s unlikely that they will be as productive or successful if they feel unsafe and stressed out. That’s a lose-lose. But it’s a win-win when employees feel safe asking for accommodations and those accommodations enable them to succeed.

Employees Legal
What is the difference between exempt and non-exempt employees?
Exempt and non-exempt are classifications under the Fair Labor Standards Act (FLSA). That’s the federal law requiring that most employees receive at least minimum wage for each hour worked and overtime pay for hours worked over 40 in a workweek. Usually, employees who are entitled to both minimum wage and overtime are called non-exempt. Those who are not entitled to both are called exempt. 

Any position can be non-exempt, meaning that employees in that position are entitled to both minimum wage and overtime pay. But if you would like to classify a position as exempt, it would need to qualify for one of the exemptions listed in the FLSA. 

The most commonly used exemptions, particularly in office settings, are the executive, administrative, and learned professional exemptions. These are part of a group of exemptions often referred to as “white-collar exemptions.” Employees who are properly classified this way are not entitled to minimum wage or overtime. But, to qualify, each position must pass a three-part test: 

Duties: The employee must perform specific tasks (such as managing at least two people) and regularly use their independent judgment and discretion. Each exemption has its own duties test.Salary level: The employee must make at least $684 per week (under federal law, a few states have higher minimums)Salary basis: The employee must be paid the same each week regardless of hours worked or the quantity or quality of their work, with a few limited exceptions. If a position meets all the criteria under one or more of the white-collar exemptions, the employee may be properly classified as exempt and will not be entitled to minimum wage or overtime pay. If the position does not meet all the criteria under a specific exemption, the employee must be classified as non-exempt and paid at least minimum wage and overtime when applicable. 

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