Frequently Asked Questions

Wage and Salary

What is the difference between exempt and non-exempt employees?

Non-exempt employees are covered by the Fair Labor Standards Act (FLSA). The Act sets out the status requirements for employees. Status is dependent on what kinds of duty the employee performs in the course of his or her job. Non-exempt employees are entitled to overtime payment if they work longer than a 40-hour week.

For executives to be exempt:

• Their primary duty must be managerial (80 % of their tasks should be managerial; 60 % in retail and services).
• They have to manage the work of two or more full-time employees.
• They frequently exercise independent judgment.
• They have authority to hire and fire employees.

For administrators to be exempt:

• Their primary duty is office based or non-manual.
• They assist a proprietor or executive and perform specialized technical work or special assignments.
• They frequently exercise independent judgment and discretion.
• No more than 20 % of their time is devoted to non-administrative functions; 40 % in retail and services.

For professionals to be exempt:

• They do original and creative work in fields requiring specialist knowledge.
• They frequently exercise independent judgment and discretion.
• Their work requires intellectual acumen and flexibility.
• No less than 80 % of their time is devoted to professional matters.

For outside sales people to be exempt:

• They must be take orders away from the employer's business and do not devote more than 20 % of their time to non-sales activities.

Is an employer legally obliged to pay an employee for jury duty?

Under the Jury Systems Improvement Act 1978 (JSIA) an employer has the right to limit the amount of jury leave days that an employee can take off in one year. Most states have their own rules for dealing with requirements that apply to employers with regard to jury service. Some companies will lay down policies in their Employee Handbook. There is no legal obligation on an employer to pay for time off responding to a call for jury service, although some states do set out qualified rights to payment. Often the law will specify, however, that an employee cannot be fired or discriminated against should they be called to jury service.

What is the definition of an independent contractor?

In determining the status of a worker as an independent contractor, the party in control of the actual work is key. An independent contractor has license to decide when and how he or she gets the job done not the employer. If needs be, an independent contractor can stay up all night to complete a contract. An independent contractor is not governed by the laws that govern a full-time employee. They operate largely as a small business does and are able to claim tax concessions and benefit from the flexible working arrangement of the self employed.

Sexual Harassment

What is sexual harassment?

Sexual harassment is a form of sexual discrimination when there are unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment. This is conduct that interferes with an individual`s work performance or creates an intimidating, hostile or offensive work environment.

Hostile Work environment and Sexual Harassment

A hostile work environment and sexual harassment occurs when there is conduct that creates an offensive or hostile working environment. Such conduct includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee`s work performance or creating an intimidating, offensive or hostile work environment. In order to determine if a work environment is "hostile" to support a claim of sexual harassment, the courts have developed the use a "reasonable person" standard. The Ninth Circuit has interpreted this to be the perspective of a reasonable woman.

My boss keeps making sexual comments to me that I find offensive? Do I have any legal rights?

There are various steps one can take to end sexual harassment using the legal system. However, these are generally considered only as a last resort. The first step is for the aggrieved party to talk to the person involved and tell them directly how the behavior is affecting them. It is also good practice to report the unreasonable behavior to others. Some organizations have created their own policy and procedure to prevent incidents of sexual harassment from escalating. Complaints can be filed with the EEOC or under state law with the Fair Employment Practices Agency (FEP). A private law suit or tort lawsuit can also be filed.

Liability to Employers for Sexual Harassment

The employer is not always strictly liable for sexual harassment by its supervisors and employees. Nevertheless, under the quid pro quo theory, an employer is strictly liable for conduct of its supervisors who have authority over hiring, advancement, dismissal, and discipline. Under the hostile work environment theory, an employer is only liable for conduct of its supervisors if the act took place in the scope of the supervisor`s employment. This requires an examination of factors such as when and where the act took place, and whether it was foreseeable. Under either theory, an employer can be held liable for non-supervisory employees if the employer knew or should have known of the conduct and failed to take corrective action within a reasonable time period. An employer will be held liable for retaliatory action against an employee if it takes such action because of a complaint of sexual harassment.

What are defenses for Sexual Harassment?

Conduct only constitutes unlawful sexual harassment if it is unwelcome. If the employer can prove that the conduct was indeed welcome, the employer can absolve itself from liability. The courts will look at the totality of the circumstances, including provocative speech, dress or actions that might have encouraged advances. One must distinguish between unwelcome and voluntary. If an employee engages in a voluntary act that is unwelcome, the employer may still be liable. Voluntary behavior is not in itself a defense to a sexual harassment claim. The employer must prove that it was welcome. Also, under certain circumstances, the employer can avoid respondeat superior liability for a hostile work environment by its supervisors if it has a grievance procedure and policy against discrimination in the work place.

Resondeat superior: Let the Master answer, Under this doctrine, the master is responsible for the care given by his servants Thus, the Employer is liable for the actions of the employee.

Discrimination

What is employment discrimination?

Discrimination generally occurs when an employee is intentionally treated differently because of the employee`s race, color, religion, national origin, disability, gender, sexual orientation (depends on state) or age because of the employer`s system, such as its hiring process, has a negative effect on people in the protected categories or classes.

To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of the employer`s system had an unintentional discriminatory effect, it is said to have a disparate impact.

Even if the employee`s evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a "business necessity" for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer`s justification, was the true reason for the action.

What is the difference between disparate impact and disparate treatment?

Discrimination on its face is disparate treatment. However, rules or policies that are facially neutral can have a disproportionate impact on minorities and other members of a protected group. This is called disparate impact.

Is discrimination in Publications Prohibited?

It is an unlawful employment practice for an employer, union, employment agency or labor-management training committee to publish any notice or advertisement that indicates any preference, limitation, specification or discrimination with respect of a protected class. However, it is not unlawful if based on religion, sex or national origin if it is a bona fide occupational qualification for employment.

For Cause Defense to a Discrimination Claim

An employer may prevail in overcoming a prima facie case of discrimination by showing the court that it had good cause or a legitimate non-discriminatory reason for its action. For example, an employer may off set an employee alleging a discriminatory firing by proving the employee was in fact fired other legitimate reasons. The Civil Rights Act of 1991 provides that an unlawful employment practice is established where an employee has shown that a discriminatory motive was involved in an employer`s decision, even though other nondiscriminatory factors motivated the decision. If the employer can prove that the same action would have been taken absent the discriminatory motive, the employee may not recover damages or be awarded reinstatement, hiring or promotion. The Court may, however, award declaratory relief, attorney fees and cost.

Bona Fide Occupational Qualification defense to a Discrimination Claim

Under Title VII, an employer can select employees on the basis of religion, sex or national origin in those instances in which it is a bona fide occupational qualification, reasonably necessary to the normal operation of the business. Because this qualification is narrowly construed, it is not often used as a defense in Title VII cases.

Business Necessity defense to a Discrimination Claim

After the employee establishes a prima facie case of sexual discrimination, the employer may offer a business necessity defense. Business necessity is an overriding legitimate, nondiscriminatory business purpose. In order to satisfy the business necessity, an employer should satisfy three elements:

1. There must be an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business;
2. The practice must effectively carry the business purpose it is alleged to serve; and
3. There are not any acceptable alternative policies or practices which would accomplish the business purpose advanced, or accomplish it equally with a lesser differential impact.

Seniority System as a defense to a Discrimination Claim

There may be different standards of compensation or different terms and conditions of employment pursuant to a bona fide seniority system, if such a difference is not the result of intentional discrimination with regard to race, color, religion, sex or national origin. The Supreme Court has ruled that a bona fide seniority system can thus be used even if it has a discriminatory effect, so long as the system was not intended to be discriminatory.

Does the employer have to prove business necessity in a disparate impact case?

Since the Civil Rights Act of 1991, once a prima facie allegation has been established, the employer is required to not only prove that the employment practice is job related, but that it is required by business necessity. To establish business necessity, the employer must show that its particular business practice bears a demonstrable relationship to the successful performance of the jobs for which it was used.

What happens if there is a mixed motive in an action taken by an employer; one discriminatory and the other non-discriminatory

(intentional discrimination) when the employer had a mixed motive and if that same action would have been taken even in the absence of the discriminatory motive. The Civil Rights Act of 1991 overturns this making any discrimination unlawful, even if the employee would have suffered the same adverse action in the absence of the discriminatory motive.

What should an Employer do to prevent retaliation against and preserve relationships with current employee charging parties?

The charge should be treated confidentially. If the charging party is a current employee, make sure no employee retaliates against the person filing the charge. Make clear to employees who file charges that their relationship with the company will not be affected. As to former employees, be sure that the EEOC filing does not affect the nature of any references given.

Family Medical Leave Act (FMLA)

What does the federal Family and Medical Leave Act (FMLA) govern?

The Family and Medical Leave Act (FMLA) allows certain employees up to twelve weeks of unpaid, job-protected leave per year. The FMLA calls for notification responsibilities. It also requires that group health benefits be maintained during the leave. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women. A number of states have also enacted family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by FMLA. In those situations where an employee is covered by both Federal and State FMLA laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law.

What is the purpose of the Family and Medical Leave Act?

The Family and Medical Leave Act 1993 (FMLA) was created as a way of providing employees with a means of coping with the challenging demands of family and home. It applies to companies with 50 employees or more in one location or 50 employees within a 75-mile radius. It helps workers, who for personal reasons may require time off. It allows up to 12 weeks unpaid leave and the employee at the end of that period is entitled to return to the same or similar position that they were in before they left. The Act covers the following situations:

1. chronic or terminal illness of a spouse or close relative;
2. birth or adoption of a child;
3. employee illness.

The employee must have been with the company for more than one year and have worked more than 24 hours a week in the year preceding the requested leave. Usually, the employer will require a doctor`s certificate to corroborate the circumstances.

Who is covered by the federal Family and Medical Leave Act?

Only employers that carry 50 or more employees at a worksite, or within 75 miles, are covered by the FMLA. However, for an employee to be eligible, he or she must have worked for the employer for at least one year and must have worked at least 1,250 hours (an average of 25 hours a week) during the previous 12-month period. An employer may deny leave to any key employee who receives a salary in the top 10% of the work force and whose leave-taking would cause economic harm to the employer.

Age Discrimination in Employment Act (ADEA)

What does the Age Discrimination in Employment Act (ADEA) govern?

It is unlawful for an employer, employment agency or Labor Union to discriminate in employment against anyone because of his or her age. This includes refusing to hire an individual or firing an employee. It also includes an individual`s compensation, terms, conditions or privileges of employment and all employee benefits.

Who is covered by the Age Discrimination in Employment Act?

The ADEA applies only to persons who are over 40. There is no upper age limit. The ADEA applies to employment practices in both the private and the public sector, including employment agencies and Labor Unions. Using age is not unlawful where age is a bona fide occupational qualification reasonably necessary to the normal operation of the job. Also, state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.

How is an employee protected from age discrimination?

Under the Federal Age Discrimination in Employment Act (29 U.S.C. 621 to 634), a worker over the age of 40 is protected against discrimination for age reasons, including being forced to retire. The Act is enforced by the EEOC. The employee must have been performing their job in a way that met their employer`s expectations up until the point of alleged discrimination.

What administrative body may impose remedies for a violation of the Age Discrimination in Employment Act?

Complaints are to be sent to the Equal Employment Opportunity Commission (EEOC) within 180 days of the occurrence of the discriminatory act, unless the alleged misconduct occurred in a state that has an age anti-discrimination agency. If so, charges should be filed within 300 days of the alleged unlawful practice or within 30 days after receipt of notice that the state proceedings have been terminated; whichever is earlier. Any individual civil action may be filed 60 days after a charge has been filed with EEOC or state deferral agency. There is a statute of limitation on lawsuits of 2 years. Three years for willful violations.

Americans with Disabilities Act (ADA)

What does the Americans with Disabilities Act (ADA) govern?

The Americans with Disabilities Act (ADA) prohibits discrimination against qualified disabled individuals in all employment practices including job application procedures, hiring, promotion and advancement, discharge compensation, training and other terms, conditions and privileges of employment. The ADA prohibits employment discrimination on the basis of a disability in all programs, activities and services provided for or operated by state and local governments.

Who is covered by the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) applies to disabled individuals in employment. The ADA applies to private employers, state and local governments, employment agencies and labor unions. The Act broadly defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The definition also includes anyone who has a record of such an impairment or is regarded as having such an impairment.

What administrative body may impose remedies for a violation of the Americans with Disabilities Act?

Complaints can be filed with the EEOC or individuals seeking to bring a lawsuit under the ADA must first file a charge with the EEOC and/or with any state or local deferral agency established by a state. Remedies under the ADA include compensation and punitive damages in amounts limited by the size of the employer`s work force.

Civil Rights Act of 1964 (Title VII)

What does the Civil Rights Act of 1964 (Title VII) govern?

Title VII prohibits discrimination in employment including public accommodations, governmental services and education. An employer cannot fail or refuse to hire or refuse to promote, fire anybody or discriminate with respect to compensation, terms, conditions and privileges of employment based on race, color, sex, religion or national origin. An employer cannot limit, segregate or classify employees or applicants in any way that would deprive or tend to deprive employment opportunities or that adversely affects the status of an employee because of race, color, sex, religion or national origin.

Who does the Civil Rights Act of 1964 cover?

Employers with 15 or more employees, affecting commerce, and whose employees have been employed for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year, are covered by Title VII. Title VII applies to all employers, potential employers, unions, employment agencies and joint labor-management training committees. Title VII, through subsequent amendments, applies to state and local governments, governmental agencies, and political subdivisions. Religious organizations are exempt when based upon religion.

What administrative body may impose remedies for a violation of the Civil Rights Act of 1964?

The Equal Employment Opportunity Commission (EEOC) administers and enforces Title VII. The EEOC has the power to investigate, litigate and resolve unfair employment practices. The EEOC make take action in a federal district court for appropriate relief and preliminary relief pending disposition of a charge. The EEOC may also issue a notice of a right to sue to the charging party following administrative proceedings.