Employment Law

THE FAIR LABOR STANDARDS ACT OF 1938

The
Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay,
recordkeeping, and youth employment standards affecting full-time and
part-time workers in the private sector and in Federal, State, and
local governments. Covered, nonexempt workers are entitled to a minimum
wage of not less than $6.55 per hour effective July 24, 2008; and $7.25
per hour effective July 24, 2009. 

The
child labor provisions include restrictions on hours of work and
occupations for youths under age 16, and set forth the jobs that have
been declared too dangerous for youths to perform. Additionally, the
Act prohibits the interstate shipment of goods produced in violation of
the child labor provisions. It is also a violation of the Act to fire
or in any other manner discriminate against an employee for filing a
complaint or for participating in a legal proceeding under the Act.

The permissible jobs and hours of work, by age, in nonfarm work are as follows: 

? Youths age 18 or older are not subject to restrictions on jobs or hours;

? Youths
age 16 and 17 may perform any job not declared hazardous by the
Secretary, and are not subject to restrictions on hours; 

?
Youths age 14 and 15 may work outside school hours in various
nonmanufacturing, non-mining, nonhazardous jobs under the following
conditions: no more than three hours on a school day, 18 hours in a
school week, eight hours on a non-school day, or 40 hours in a
non-school week. In addition, they may not begin work before 7 a.m. or
work after 7 p.m., except from June 1 through Labor Day, when evening
hours are extended until 9 p.m. Those enrolled in an approved Work
Experience and Career Exploration Program (WECEP) may work up to 23
hours in school weeks and three hours on school days.

Penalties/Sanctions:
The Act also provides for a criminal fine of up to $10,000 upon
conviction for a willful violation. For a second conviction for a
willful violation, the Act provides for a fine of not more than $10,000
and imprisonment for up to six months, or both. The Secretary may also
obtain an injunction to restrain persons from further violations. 

Employee
Rights: The FLSA prohibits employers from engaging in oppressive child
labor, as defined by the Act. The FLSA also gives an employee the right
to file a complaint with the Wage and Hour Division and testify or in
other ways cooperate with an investigation or legal proceeding without
being fired or discriminated against in any other manner. 

FAMILY AND MEDICAL LEAVE ACT OF 1993

The
Family Leave Act, FMLA , (29 USC Sec. 2601, 29 CFR Part 825), provides
that eligible employees of covered employers have a right to take up to
12 weeks of job-protected leave in any 12-month period for qualifying
events without interference or restraint from their employers. The FMLA
also gives employees the right to file a complaint with the Wage and
Hour Division of the Department of Labor’s Employment Standards
Administration, file a private lawsuit under the Act (or cause a
complaint or lawsuit to be filed), and testify or cooperate in other
ways with an investigation or lawsuit without being fired or
discriminated against in any other manner.

The
FMLA applies to any employer in the private sector who engages in
commerce, or in any industry or activity affecting commerce, and who
has 50 or more employees each working day during at least 20 calendar
weeks in the current or preceding calendar year. The law covers all
public agencies (state and local governments) and local education
agencies (schools, whether public or private). These employers do not
need to meet the “50 employee” test. Title II of FMLA covers most
federal employees, who are subject to regulations issued by the Office
of Personnel Management. 

To
be eligible for FMLA leave, an individual must (1) be employed by a
covered employer and work at a worksite within 75 miles of which that
employer employs at least 50 people; (2) have worked at least 12 months
(which do not have to be consecutive) for the employer; and (3) have
worked at least 1,250 hours during the 12 months immediately before the
date FMLA leave begins. 

The
FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid
leave during any 12-month period for the following reasons: 

1.Birth and care of the employee’s child, or placement for adoption or foster care of a child with the employee; 

2.Care of an immediate family member (spouse, child, parent) who has a serious health condition; or 

3.Care of the employee’s own serious health condition. 

If
an employee was receiving group health benefits when leave began, an
employer must maintain them at the same level and in the same manner
during periods of FMLA leave as if the employee had continued to work.
Usually, an employee may elect (or the employer may require) the use of
any accrued paid leave (vacation, sick, personal, etc.) for periods of
unpaid FMLA leave. 

Employers
are required to post a notice for employees outlining the basic
provisions of FMLA and are subject to a $100 civil money penalty per
offense for willfully failing to post such notice. Employers are
prohibited from discriminating against or interfering with employees
who take FMLA leave. 

THE AMERICANS WITH DISABILITY ACT OF 1990 (ADA) TITLE 1 

Title
I of the Americans with Disabilities Act of 1990 (ADA) makes it
unlawful for an employer to discriminate against a qualified applicant
or employee with a disability. The ADA applies to all state and local
governments, as well as private employers with 15 or more employees.

The
ADA defines an individual with a disability as a person who: (1) has a
physical or mental impairment that substantially limits a major life
activity, (2) has a record or history of a substantially limiting
impairment, or (3) is regarded or perceived by an employer as having a
substantially limiting impairment. 

As
with all job applicants, an applicant with a disability must be able to
meet the employer’s requirements for the job, such as education,
training, employment experience, skills, or licenses. In addition, an
applicant with a disability must be able to perform the “essential
functions” of the job the fundamental duties either on her own or with
the help of “reasonable accommodation.” However, an employer does not
have to provide a reasonable accommodation that will cause “undue
hardship,” which results in a significant difficulty or expense to the
employer. 

Reasonable
Accommodation starts in the interview process. Employers are required
to provide “reasonable accommodation” — appropriate changes and
adjustments — to enable you to be considered for a job opening.
Reasonable accommodation may also be required to enable you to perform
a job, gain access to the workplace, and enjoy the “benefits and
privileges” of employment available to employees without disabilities.
An employer cannot refuse to consider you because you require a
reasonable accommodation to compete for or perform a job. 

It
is recommended the a person who needs a “reasonable accommodation” for
some aspect of the hiring process advise an employer as soon as
possible. An employer needs advance notice to provide many
accommodations, such as sign language interpreters, alternative formats
for written documents, and adjusting the time allowed for taking a
written test. An employer may also need advance notice to arrange an
accessible location for a test or interview. 

You
must inform the employer that you need some sort of change or
adjustment to the application/interviewing process because of your
medical condition. You can make this request orally or in writing, or
someone else might make a request for you (e.g., a family member,
friend, health professional, or other representative, such as a job
coach). 

THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 

According to The U.S. Equal Employment Opportunity Commission 

The
Age Discrimination in Employment Act of 1967 (ADEA) protects
individuals who are 40 years of age or older from employment
discrimination based on age. The ADEA’s protections apply to both
employees and job applicants. Under the ADEA, it is unlawful to
discriminate against a person because of his/her age with respect to
any term, condition, or privilege of employment, including hiring,
firing, promotion, layoff, compensation, benefits, job assignments, and
training. 

It
is also unlawful to retaliate against an individual for opposing
employment practices that discriminate based on age or for filing an
age discrimination charge, testifying, or participating in any way in
an investigation, proceeding, or litigation under the ADEA. 

The
ADEA applies to employers with 20 or more employees, including state
and local governments. It also applies to employment agencies and labor
organizations, as well as to the federal government. ADEA protections
include: 

.Pre-Employment Inquiries:
The ADEA does not specifically prohibit an employer from asking an
applicant’s age or date of birth. However, because such inquiries may
deter older workers from applying for employment or may otherwise
indicate possible intent to discriminate based on age, requests for age
information will be closely scrutinized to make sure that the inquiry
was made for a lawful purpose, rather than for a purpose prohibited by
the ADEA. 

.Benefits:
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the
ADEA to specifically prohibit employers from denying benefits to older
employees. Congress recognized that the cost of providing certain
benefits to older workers is greater than the cost of providing those
same benefits to younger workers, and that those greater costs would
create a disincentive to hire older workers. Therefore, in limited
circumstances, an employer may be permitted to reduce benefits based on
age, as long as the cost of providing the reduced benefits to older
workers is the same as the cost of providing benefits to younger
workers. 

THE PREGNANCY DISCRIMINATION ACT

(TITLE VII OF THE CIVIL RIGHTS ACT) 

An
employer cannot refuse to hire a pregnant woman because of her
pregnancy, because of a pregnancy-related condition, or because of the
prejudices of co-workers, clients, or customers.

Discrimination
on the basis of pregnancy, childbirth, or related medical conditions
constitutes unlawful sex discrimination under Title VII, which covers
employers with more than 15 employees, governments and Labor Unions.  Women
who are pregnant or affected by pregnancy-related conditions must be
treated in the same manner as other applicants or employees with
similar abilities or limitations. 

I
you are involved in a Labor or Employment dispute, you need to speak
with an attorney who knows and understands all the Labor and Employment
laws that are applicable to your situation. With over 100
employer-employee laws, and some changing on a constant basis, only
attorneys who specialize in labor and Employment laws are positioned to
properly assist you. 

CLICK HERE TO FIND AN EMPLOYMENT  LAW ATTORNEY  

 

Employment Laws

The National Labor Relations Act.
Protects the right to unionize, and prohibits discrimination for filing a charge of an unfair labor practice.

Fair Labor Standards Act of 1938.
Provides for a minimum wage, and mandatory overtime.

Title VII, The Civil Rights Act of 1964.
An
employer cannot discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.

Civil Rights Act of 1886.
Prohibits discrimination on the basis of race in the formation of contracts.

Family Medical Leave Act of 1992.
Requires the employer to provide allow the employee unpaid leave for medical care, or medical care of a family member.

Americans With Disabilities Act of 1990.
Forbids discrimination against people with disabilities.

Age Discrimination in Employment Act of 1967.
Forbids age discrimination.

The Occupational Safety and Health Act of 1970.
Protects employees who exercise their rights under the act or participate in proceedings against their employer.

The Clean Air Act.
Prohibits discrimination for commencing or participating under the act.

The Consumer Protection Act.
Prohibits job discrimination against an employee who has their wages garnished.

The Employee Retirement Income Security Act of 1974.
Prohibits employers from preventing employees from exercising their rights to employee benefits plans.

The Energy Reorganization Act of 1974.
Prohibits discrimination for employees who exercise their rights under the act or participate in proceedings under the act.

The Federal Railroad Safety Act of 1970.
Prohibits discrimination for employees who exercise their rights under the act or participate in proceedings under the act.

The Federal Water Pollution Control Act.
Prohibits discrimination for employees who initiate or participate in proceedings under the act.

The Jurors Employment Protection Act.
Prohibits discrimination against those who attend jury service in federal courts.

The Longshormen’s and Harborworkers’ Compensation Act.
Prohibits discrimination for seeking benefits under the act or for testifying in proceedings under the act..

The Rehabilitation Act of 1973.
Prohibits discrimination by federal contractors on the basis of handicap.

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