How Employers Can Prepare for Recurring Employment Law Issues
Director of Compliance
Many human resources professionals will tell you, and correctly so, that one of the most difficult challenges employers face is keeping pace with the constant changes taking place in different areas of employment law. These changes include new and amended laws, confusing court decisions, and complicated government agency opinions. More than ever, employers are consulting with their pricey attorneys trying to figure out the quickly evolving regulatory landscape before them.
Despite the difficulties caused by legal changes, it’s important for employers to stay focused and to understand that there are certain basic employment law issues they will run into just about every year—like leaves of absence, wage and hour requirements, discrimination (including harassment), and employee scheduling.
But by having a deep understanding of a few established employment laws, employers can build a solid foundation that will ready them for upcoming changes. Below is a list of longstanding laws with which employers should have a strong working knowledge if they want to cultivate an atmosphere of workplace compliance regarding the aforementioned issues:
Family and Medical Leave Act of 1993 (FMLA)
The FMLA requires private employers with 50 or more employees (and local, state, and federal employers) to provide eligible employees with up to 12 workweeks of unpaid, job-protected leave per year for specified family and medical reasons, and up to 26 workweeks of unpaid leave during a single 12-month period to care for a covered military veteran with a serious injury or illness. Employers who violate the FMLA are subject to damages including back pay, front pay, and liquidated damages. A court may also order an employer to reinstate an employee who was wrongfully terminated in violation of the FMLA. And to complicate matters more, national employers must also comply with many state family and medical leave laws that are similar to yet different from the FMLA.
Fair Labor Standards Act (FLSA)
The FLSA is a federal law establishing minimum wage, overtime pay, child labor, and recordkeeping requirements in the private and public sectors. Under the FLSA, for example, nonexempt employees are entitled to overtime pay at not less than one and one-half times their regular rate of pay for work hours exceeding 40 in a workweek. An employee’s regular rate of pay includes all remuneration for employment except for several payments specifically excluded by the Act. Hours worked usually include all the time an employee is required to be on duty, on the employer’s premises, or at a prescribed workplace. Scary news for employers: the U.S. Department of Labor estimates that as many as 70 percent of employers violate the FLSA, exposing them to potentially costly litigation and damages.
The Americans with Disabilities Act (ADA)
The ADA covers employers with 15 or more employees as well as state and local governments. It prohibits disability discrimination in the workplace to guarantee that applicants and employees with disabilities have the same job opportunities as everyone else. A key aspect of the ADA is that covered employers must provide reasonable accommodations to workers with disabilities unless it causes the employer undue hardship (such as significant difficulty or expense). Examples of reasonable accommodations may include job restructuring, accessible and assistive technologies, policy modifications, adjusting work schedules, and permitting the use of accrued paid or unpaid leave.
Age Discrimination in Employment Act (ADEA)
The ADEA applies to private employers with 20 or more employees, the federal government, state and local governments, employment agencies, and labor organizations. Among other things, the ADEA prohibits age discrimination against employees and applicants age 40 or older. And some states have enacted laws protecting workers under age 40 from age discrimination. Age discrimination is prohibited in pre-employment inquiries, hiring, firing, job assignment, compensation (including benefits), training, promotions, layoffs, and other terms and conditions of employment.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII prohibits employers with 15 or more employees from discriminating against applicants and employees in any term or condition of employment based on race, color, religion, sex (including pregnancy and sexual orientation), and national origin. Areas often giving rise to Title VII discrimination claims include employee recruiting, hiring, firing, layoffs, compensation (including benefits), discipline, harassment, transfers, promotions, training, job assignments, and performance reviews.
Predictive Scheduling Laws
Predictive scheduling laws protect workers by requiring employers to follow certain practices to avoid unpredictable work schedules that can deprive employees of a proper work-life balance. For example, predictive scheduling laws usually require employers to provide adequate notice to employees of when they will work so they can plan for and around their shifts. If these mandated scheduling practices are violated, stiff penalties can be imposed. Current predictive scheduling laws often cover food service, retail, and hospitality industry employers where “just-in-time” and “on-call” scheduling have historically complicated employees’ lives.
Underestimating the importance of complying with employment laws is one of the biggest miscalculations employers can make. Although proper workplace compliance can be time-consuming and daunting, it is far less time-consuming and daunting than defending your noncompliant workplace actions in a court of law or agency proceeding. What compliance really boils to is understanding the law, following the law, and treating your employees fairly. And staying compliant with these recurring employment law issues is a great step in that direction.
As we proceed in 2022, legislative impacts to business operations show little signs of slowing down. How can employers prepare for what’s ahead?
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