In episode 22 of “The JoyPowered™ Workspace Podcast,” JoDee and Susan answer listeners’ questions about employment laws, including FMLA, harassment, FLSA, and the Pregnancy Discrimination Act. JoDee discusses the work flex bill she lobbied for in November 2017.
Susan and JoDee are HR consultants, NOT employment law attorneys, but they frequently receive questions about employment laws and want to cover some basics. If you have complicated issues or need advice specific to your situation, you should call your attorney.
The Family Medical Leave Act (FMLA) requires employers with 50 or more employees to offer 12 weeks of unpaid but job protected leave for specific family or medical issues during a 12-month period. The leave may be taken intermittently or all at once, and is most widely used for pregnancies and new babies. Listener Laura just started working for a new healthcare employer and is running FMLA and Workers’ Comp concurrently when someone is off work for a work-related injury, and she wants to know if that’s correct.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin, and prohibits sexual or sex-based harassment. Harassment may violate Title VII if it’s sufficiently frequent or severe to create a hostile work environment, or if it results in a tangible employment action, such as refusal to hire or promote, firing, or demotion. Title VII also prohibits retaliation for protected activity, including actions such as fling a charge of discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. Listener Mary asks about what exactly retaliation means and how a business makes sure it doesn’t happen.
The Fair Labor Standards Act (FLSA) is a federal law which sets minimum wage, overtime, record keeping, and youth employment standards. One tricky part of this law is the definitions of exempt versus non-exempt; a non-exempt employee must be paid minimum wage and overtime pay for any time worked beyond 40 hours in a given week, while an exempt employee is not entitled to overtime pay and is likely paid a salary. JoDee shares a situation with a client, who hired a part-time HR Manager who makes about $30 an hour. The new HR Manager wanted to be paid on a reduced salary instead of hourly, and the client wanted to know if that was okay.
The Americans with Disabilities Act (ADA) was a game changer for people with disabilities in the workplace. A listener asks what is considered an “undue hardship” when examining an ADA situation.
The Pregnancy Discrimination Act (PDA) prohibits employers from refusing to hire or from dismissing a woman because she’s pregnant, from forcing a pregnant woman to go on leave if she’s ready and willing to stay at work. It also guides employers on how to treat pregnancy like any other temporary disability. Susan shares her experience talking to someone who had two great internal candidates, thought either could do the job, but knew one was pregnant. This person wanted to know if it was okay to recommend hiring the other person, with a plan to work with the pregnant employee to help her advance when she returned from maternity leave.
The Age Discrimination in Employment Act (ADEA) prohibits discrimination of anyone age 40 or over in employment, advancement, or benefits. It also prohibits employment advertising targeting people of a preferred age, and having mandatory requirements based on age unless it’s a bona fide occupational qualification, the company has a bona fide seniority system, or the employee is a top executive or policy maker. Listener Ben asks if there is a mandatory retirement age, and how long he should wait for his immediate boss, who is almost 60 years old and plans to continue working for a while, to retire.
The Immigration Reform and Control Act (IRCA) prohibits discrimination on the basis of national origin or citizenship, penalizes employers who hire illegal aliens, and mandates that employers must verify an employee’s identification and right to work in the U.S. Listener Emily asks whether her former employer was allowed to fire her when she didn’t provide proof documents within three days of starting her job.
The Uniform Services Employment and Reemployment Rights Act (USERRA) protects the public and private employment, reemployment, and retention rights of all military personnel. It enables employees to take up to a five-year military leave and receive the same seniority-based benefits as they would have received had they not been gone. A listener wants to know if it’s fair for a coworker who has been on military leave for almost four years to be at the same level as him, receive the same pay, and whether it’s okay for the employer to ask him to train the returning coworker.
The Equal Pay Act (EPA) prohibits unequal pay for substantially equal work performed by men and women, and prohibits employers from reducing wages of either gender to comply with the law. A listener believes the women Marketing Associates at her company are earning less than the men Marketing Associates, and wants to know if it’s a violation of the EPA.
The Lilly Ledbetter Fair Pay Act expanded the statute of limitations for filing compensation discrimination claims to a rolling open time frame; each time an employer pays a discriminatory paycheck, the 180 day statute of limitations clock begins.
The National Labor Relations Act (NLRA) guarantees the rights of employees to organize and bargain collectively with their employers and to engage in other protected concerted activity. Protected concerted activity is the rights of employees to talk to each other and organize with each other around things like working conditions, pay, benefits, and treatment by management. Listener Ed wants to know if NLRA rules apply when a company doesn’t have a union.
The Worker Adjustment and Retraining Notification Act (WARN) requires employers with 100+ employees to provide a 60-day advance notice of plant closings and mass layoffs. A listener doesn’t want to have to tell employees in advance about layoffs because of potential poor behavior in response, and asks whether it wouldn’t just be better to tell everyone on the day they need them to leave.
JoDee and Susan discuss a new work flex bill (The Work Flex in the 21st Century Act) that JoDee lobbied for in November of 2017.