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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 EmployeeICTempVolunteer ControlEmployer Controls IC Controls Limited Control Wages Benefits Employer Provides NoneAgency Provides None Their Injuries Workers Comp LawsuitWC or Lawsuit Injury to 3 rd p. EmployerIC 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 8 th 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 PregnancyFMLAHFLL CoverageAll EventsDisability due to pregnancy or childbirth Pregnancy, birth, adoption, serious illness of self or family Pregnancy, birth, adoption, serious illness of family LengthPer doctor12 weeks4 weeks WagesUnpaid Unpaid* BenefitsContinues ReinstateYes
©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
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