The law relating to the employment relationship is based on the law of agency. Agency is a relationship based on an agreement authorizing one person, the agent, to act for another, the principal. For example an agent may negotiate and make contracts with third persons on behalf of the principal. Actions of an agent can obligate the principal to third persons. Actions of an agent may also give a principal rights against third persons.
Employees
Technically, an ordinary employee is not an agent unless the employee was hired to represent the employer in dealings with third persons. It is possible, though, for the same person to be both an agent and an employee. It depends upon the authority given the employee. An example would be the authority to make contracts on behalf of the employer.
If an employee acts in a way that exceeds his authority, the employer may still be liable to a third party. In an employment/agency relationship, the employee/agent is under specific duty to the principal to act as authorized. As a rule, if an agent exceeds his authority or places the property of the principal at risk without authority, the principal is now responsible for all loss or damage naturally resulting from the agents unauthorized acts.
Throughout the entire relationship, the principal has the obligation toward the agent to exercise good faith in their relationship, and the principal has to use care to prevent the agent from coming to any harm in the during the agency relationship. This requirement is similar to the employer’s responsibility to provide a safe and healthy working environment for the workers.
Independent Contractors
An independent contractor is a person or business who performs services for another person under an express or implied agreement and who is not subject to the other’s control, or right to control, the manner and means of performing the services. The person who hires an independent contractor is not liable to others for the acts or omissions of the independent contractor. An independent contractor is distinguished from an employee, who works regularly for an employer. The exact nature of the independent contractor’s relationship with the hiring party is important since an independent contractor pays their own Social Security, income taxes without payroll deduction, has no retirement or health plan rights, and often is not entitled to worker’s compensation coverage.
There are a number of factors which to consider in making the decision whether people are employees or independent contractors. No one factor is controlling, and the characterization of the relationship by the parties is also not controlling.
One of the most important considerations is the degree of control exercised by the company over the work of the workers. An employer has the right to control an employee. It is important to determine whether the company had the right to direct and control the workers not only as to the results desired, but also as to the details, manner and means by which the results were accomplished. If the company had the right to supervise and control such details of the work performed, and the manner and means by which the results were to be accomplished, an employer-employee relationship would be indicated. On the other hand, the absence of supervision and control by the company would support a finding that the workers were independent contractors and not employees. Whether or not such control was exercised is not the determining factor, it is the right to control which is key.
Another factor to be considered is the connection and regularity of business between the independent contractor and the hiring party. Important factors to be considered are separate advertising, procurement of licensing, maintenance of a place of business, and supplying of tools and equipment by the independent contractor. If the service rendered is to be completed by a certain time, as opposed to an indefinite time period, a finding of an independent contractor status is more likely.
An agent or an employee is different from an independent contractor. A principal or employer has control over an agent or employee, but not over an independent contractor. A principal or employer does not have control over the work performance of an independent contractor. A principal or employer is not bound by the actions of an independent contractor.
Why is it Important to Determine Whether A Worker is an Employee?
There is no constant definition of who constitutes an employee. The answer will vary depending the issue and the statute to be applied. The issue, however, must be determined because of the following concerns.
Employee Payroll Deductions.
An employer paying an employee is subject to different payroll requirements than when paying an independent contractor. It is the employer’s duty to pay Social Security (FICA), federal unemployment compensation (FUTA), IRS federal income tax withholdings, Medicare and state taxes for each of its employees. In addition, it is the employer’s responsibility to withhold a certain percentage of the employee’s wages for Federal income tax purposes.
An independent contractor is responsible for the payment of such taxes on his or her own. The principal merely pays the fee to the contractor and the contractor then pays the taxes at a later date, usually through four estimated payments per year. Thus, the principal is able to avoid the bookkeeping costs associated with such withholdings.
Employee Benefits.
In an effort to attract and retain superior personnel, employers offer employees a range of benefits which generally are not required to be offered, such as dental, medical, pension, and profit-sharing plans. Independent contractors have no access to these benefits. Where a worker is considered an employee, the worker is protected by the provisions of The Employee Retirement Income Security Act of 1974 (ERISA), which was enacted to protect employee benefit plan participants from retirement plan abuses, and the Fair Labor Standards Act of 1938 (FLSA) was enacted to establish standards for minimum wages, overtime pay, employer record-keeping and child labor.
Discrimination and Affirmative Action.
Title VII of the Civil Rights Act of 1964, as amended, and other related anti-discrimination statutes only protect employees from discrimination by employers. Additionally, the National Labor Relations Act protects only employees and not independent contractors from unfair labor practices.
Cost
Employees are more expensive to employ due to the above regulations which require greater expenditures on behalf of employees, as well as the fact that others must be hired to maintain records of the employees. In addition, by hiring independent contractors, the cost of overtime is eliminated (the federal wage and hour laws do not apply to independent contractors) and the employer is able avoid any work related expenses such as tools, training or traveling.
The employee may actually cause the employer to have greater liability exposure. An employer is “vicariously liable” if the employee causes harm to a third party while the employee is in the course of employment. While the employee may be required to indemnify or reimburse the employer for any liability incurred as a result of the negligence, generally the third party goes after the employer because the employee does not have the funds to pay the liability. The employer could sue the employee for this reimbursement, but will more likely write it off as an expense of doing business.
The cost of mistakes
If a worker is found to be classified as an independent contractor, but later found to constitute an employee, the punishment by the IRS is harsh. The employer is not only liable for the its share of FICA and FUTA, but also subject to an additional penalty equal to 20% of the FICA that should have been withheld. In addition, the employer is liable for 1.5% of the wages received by the employee. Where the IRS determines that the worker was deliberately classified as an independent contractor in order to avoid paying taxes, the fines and penalties can easily run into six figures for even the smallest business.
The employer may also be liable under the Fair Labor Standards Act of 1938 (FLSA) for amounts of unpaid wages or overtime compensation, attorneys’ fees and costs. Any person who willfully violates the FLSA is subject to a fine of $10,000 and six months imprisonment.
Under the Employee Retirement Income Security Act of 1974 (ERISA), an employer may be liable for accrued but unpaid benefits. The tax advantages of a qualified retirement or fringe benefit plan to employers or employees may be lost as a result of misclassification. There is possible liability under the Social Security Act of 1935, state worker’s compensation and unemployment compensation laws.
How Do You Determine Whether a Worker is An Employee?
The means by which this decision is reached usually depends on the factual circumstances and issues in the case. Most statutes do not define the term. Several tests have developed and are commonly used by courts to classify employees and independent contractors. These tests included the common law test of agency, which focuses on the right of control, the Internal Revenue Service (IRS) 20 factor analysis (see below), and the economic reality analysis. Several courts also use a hybrid approach, using one test but combining factors from other tests.
Under the common law agency test, a persuasive indicator of independent contractor status is the ability to control the manner in which the work is performed. Under the common law agency approach, the employer need not actually control the work, but must merely have the right or ability to control the work for a worker to be classified an employee. Although this is a strong indication that the worker is an employee, other factors usually are considered. For example, it has been held that an employee is one who works for wages or salary and is under direct supervision. An independent contractor has been defined as one who does a job for a price, decides who the work will be done, usually hires others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials and labor and what they receive for the end result, that is upon profits. The common law test is specifically and consistently used to determine employee status in connection with FUTA and FICA taxes, in determining whether an employee is a statutory employee, as well as in federal income tax withholding.
The IRS 20-factor analysis is more an analytical tool and not a legal test used for determining worker status. The legal test is whether there is a right to direct and control the means and details of the work. However, the following 20 factors have been consistently and continually articulated by courts, regulatory agencies, commentators, and scholars as critical to the determination of the status of an individual worker. When these factors are satisfied, courts are more likely to find “employee” status. In addition, the IRS stated that these 20 factors are not inclusive but that “every piece of information that helps determine the extent to which the business retains the right to control the worker is important.” The following is a summary of the 20 factor test. A “yes” answer to any of these questions would be evidence of an employer-employee relationship.
- Does the principal provide instructions to the worker about when, where, and how he or she is to perform the work?
- Does the principal provide training to the worker?
- Are the services provided by the worker integrated into the principal’s business operations?
- Must the services be rendered personally by the worker?
- Does the principal hire, supervise and pay assistants to the worker?
- Is there a continuing relationship between the principal and the worker?
- Does the principal set the work hours and schedule?
- Does the worker devote substantially full time to the business of the principal?
- Is the work performed on the principal’s premises?
- Is the worker required to perform the services in an order or sequence set by the principal?
- Is the worker required to submit oral or written reports to the principal?
- Is the worker paid by the hour, week, or month?
- Does the principal have the right to discharge the worker at will?
- Can the worker terminate his or her relationship with the principal any time he or she wishes without incurring liability to the principal?
- Does the principal pay the business or traveling expenses of the worker?
A “yes” answer to any of these questions would be evidence of an independent contractor relationship.
- Does the worker furnish significant tools, materials and equipment?
- Does the worker have a significant investment in facilities?
- Can the worker realize a profit or loss as a result of his or her services?
- Does the worker provide services for more than one firm at a time\
- Does the worker make his or her services available to the general public?
Contingent or Temporary Workers
A contingent worker is one whose job is temporary, sporadic, or differs in any way from the norm of full-time employment. When utilizing contingent and temporary workers, the advantages and disadvantages must be considered. Although contingency or temporary workers provide a cost savings as a short-term benefit, depending on their classification, they could be entitled to protection under the employment laws. Also, the IRS is really looking at the way employers classify its employees. It’s important to be sure the classification given is the true classification. Whether a contingent worker who is placed by a staffing firm with its client is an employee depends on a number of factors, including whether the staffing firm or the client retained the right to control when, where, and how the worker performs the job, whether there is a continuing relationship with the worker, among other factors. What is unique about the worker placed by a staffing firm is the potential for joint liability between the staffing firm and the client.
Staffing firms may qualify as the employer of the placed worker, as well. For example, if the staffing firm pays the worker, provides training and workers’ compensation coverage, it may create an employment relationship with the worker. The staffing firm and its client may share liability as employers of the worker. If a client of a staffing firm supervises, trains, and otherwise directs the worker with whom it has a continuing relationship, then perhaps the client will become an employer of the worker.
In a case that sought to determine liability for wage and hour violations, the Second Circuit Court of Appeals held that all relevant factors should be considered including (but not limited to):
- whether the manufacturer/contractor employer’s premises and equipment were used for the subcontractor’s work;
- whether the subcontractor had a business that could or did shift as a unit from one putative joint employer to another;
- the extent to which subcontractor performed a discrete line-job that was integral to the contractor’s process of production;
- whether responsibility under the contracts could pass from one subcontractor to another without material changes;
- the degree to which the contractors or their agents supervised the subcontractor’s work; and
- whether the subcontractors worked exclusively or predominantly for the contractors.
Who Constitutes an Employer?
Depending on the applicable statute or provision, an employer is one who employs or uses others to do his work, or to work on her behalf.
Title VII of The Civil Rights Act of 1964 applies to all firms or their agents engaged in an industry affecting commerce which employs 15 or more employees for each working day in each of 20 or more weeks in the current or preceding calendar year. Commerce, in this context, is defined as trade, traffic, transportation, transmission, or communication among the states, between a state and any other place, within the District of Columbia or within a possession of the United States. Industry affecting commerce means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce. Lack of intent to affect commerce is no defense to coverage.
How are employees counted where the statute applies only to employers with a minimum number of employees? For example, Title VII provides that an employer is covered by the proscriptions of the statute if it employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. But what is a working day? It is generally computed by counting the number of employees maintained on the payroll in a given week, as opposed to the number of employees who work on any one day. However, this form of calculation is merely the majority approach; other courts have found that part-time employees who work for any part of each day of the work week should be counted, while part-time employees who work full days for only a portion of the work week should not be counted.
Other Employment Acts and Laws
The National Labor Relations Act (NLRA) guarantees employees the right to form a labor union and requires employers to deal with a duly-elected union as the bargaining agent for the employees. The NLRA prohibits employers from interfering with employees and from discriminating against an employee as a result of the employee’s union activity.
The Family and Medical Leave Act (FMLA) is a federal act that entitles employees of an employer with 50 or more employees to up to 12 weeks of unpaid leave during any 12 month period for the following reasons:
- birth or adoption of a child;
- to care for a spouse, child or parent with a serious health problem; or
- a serious health problem of the employee that makes the employee unable to do his or her job.
To be eligible for this leave, an employee must be employed by an employer for 12 months or more and have worked at least 1250 hours during the 12 months prior to the leave.
The Occupational Safety and Health Act of 1970 (OSHA) was passed in order to insure as much as possible safe and healthy working conditions for employees. OSHA provides for establishing safety and health standards and for enforcement of these standards. The Secretary of Labor has been granted broad authority under OSHA to write occupational safety and health standards. Any person adversely affected by these regulations of the Secretary of Labor can challenge their validity in a U.S. Court of Appeals. The Secretary’s standards will be upheld if they are reasonable and supported by substantial evidence. The Secretary must show a need for a new standard by showing that it is reasonably necessary to protect employees against a significant risk of material health impairment. The Secretary also must show that the standard is economically feasible.
For most kinds of employment, state workers’ compensation statutes govern compensation for injuries. The statutes provide that the injured employee is entitled to compensation for accidents occurring in the course of employment. Every State has some form of workers’ compensation legislation. The statutes vary widely from State to State. When an employee is covered by a workers’ compensation statute, and when the injury is job connected, the employee’s remedy is limited to what is provided in the worker’s compensation statute. In other words, the employee cannot sue his employer for negligence. Generally, no compensation is allowed for a willful, self-inflicted, injury, or one sustained while the employee is intoxicated.
The Federal Wiretapping Act provides that it is unlawful to intercept oral or electronic communications. Both criminal and civil penalties are provided for by this Act. There are two exceptions: 1) An employer can monitor his/her/its telephones in the ordinary course of business through the use of extension telephone; and 2) An employer can monitor employee communications with the employee’s consent. Consent may be established by prior written notice to employees of the employer’s monitoring policy. Consent signed by the employee is preferable. Personal calls can be monitored only to the extent necessary to determine whether the call is a personal or business call. As soon as it is determined that the call is a personal call, the employer must quit listening. The Electronic Communications Privacy Act (ECPA) amended the federal wiretap statute to make it apply to e-mail communications. However, the same two exceptions exist (i.e., ordinary course of business and consent).
Title VII of the Civil Rights Act of 1964 (which was substantially amended in 1972 and 1991) prohibits terminating an employee or refusing to hire an applicant for a reason which amounts to discrimination because of race, color, sex, religion or national origin. The Act prohibits disparate treatment which is treating one employee less favorably than another because of race, sex, etc. The Act also prohibits disparate impact situations. This would be an employment practice which was neutral on its face (e.g., height requirement), but had a disparate impact on a protected class (e.g., women). Such policies must be justified by a bona fide job necessity. Certain tests which an employer might give to a job applicant might be found to be culturally biased and therefore have a disparate impact against a minority. This is not to say that all tests will be declared illegal by a Court. However, a test must have a reasonable relation to the job for which it is to be used. Word of Mouth hiring can also cause disparate impact.
The Pregnancy Discrimination Act requires that an employer treat pregnancy in the same manner that other disabilities are treated. Women that are temporarily disabled by pregnancy or childbirth must be provided with the same benefits as other disabled workers. This includes sick leave, insurance, and similar benefits. However, employers who do not provide sick leave or short term disability benefits to workers are not required to provide them to pregnant workers.
Quid pro quo sexual harassment involves supervisory personnel seeking sexual favors from employees under them in return for job benefits such as continued employment, promotions, raises, or a favorable performance evaluation. In such a case, when a supervisor’s actions affect job benefits, Title VII’s prohibition against sex discrimination comes into play, and the employer is liable under this Act.
A second form of sexual harassment is the so-called hostile working environment harassment. This a situation where a supervisor’s conduct has sexual connotations and has caused anxiety or poisoned the work environment. This type of conduct may include such things as unwelcome flirtations, propositions, or any other abuse of a sexual nature. If this type of conduct causes an employee to quit his or her job, the employer may be liable for any damage caused to the employee.
The Age Discrimination in Employment Act (ADEA) prohibits discrimination against men and women over 40 and also prohibits mandatory retirement because of age. There are some exceptions to this mandatory retirement aspect. This Act only covers employers with 20 or more employees. The Older Workers Benefit Protection Act of 1990 (OWBPA) prohibits age discrimination in connection with employee benefits unless the employer can prove that the cost of benefits for older workers is more than for younger workers. Employers commonly require that employees taking early retirement packages waive all claims against their employers, including, any claim they have under ADEA. The OWBPA requires that employees be given a specific period of time to evaluate the package, and also requires employers to pay for eight hours of an attorney’s time to aid each employee in this evaluation.
The Americans with Disabilities Act (ADA) makes it unlawful for an employer to discriminate against any qualified individual with a disability because of the disability. A qualified individual with a disability is any person who, with or without reasonable accommodation, can perform the essential functions of the job. The ADA applies to virtually every employment practice, from the application procedures for hiring to compensation, training, other terms and conditions of employment, and discharge. The statute defines reasonable accommodation to include physical alteration of existing facilities to make them accessible to people with disabilities, restructuring jobs, allowing part-time or modified working schedules, acquiring or modifying equipment, and hiring qualified readers for the blind or interpreters for the deaf. The ADA defines disability very broadly and includes any person with: (1) a physical or mental impairment which substantially limits one or more of the individual’s major life activities; (2) a record of such an impairment; or (3) an individual who is regarded by the employer as having such an impairment. The test is a two-pronged test. First, you must decide whether or not there is a physical or mental impairment. If so, you must decide whether or not it substantially limits a major life function.
WARN Act
The Worker Adjustment and Retraining Notification (WARN) Act generally requires that 60 days advance notice of a “plant closing” (defined as employment loss for 50 or more workers during a 30-day period) or “mass layoff” (defined as employment losses at one location of 500 or more workers during a 30-day period, or 50-499 workers if they comprise at least 1/3 of the active workforce) be given to affected employees.
If an employer does not comply with the requirements of the WARN Act notices, employees can recover pay and benefits for the period for which notice was not given, up to a maximum of 60 days. All but small employers and public employers are required to provide written notice of a “plant closing” or “mass layoff” no less than 60 days in advance.
The number of employees is a key factor in determining whether the WARN Act is applicable. Only an employer that has 100 or more full-time employees or has 100 or more employees who in the aggregate work at least 4,000 hours per week are covered by the WARN Act. In counting the number of employees, consideration of U.S. workers at foreign sites, temporary employees, and employees working for a subsidiary as part of the parent company must be considered in the calculation.
There are three exceptions to the 60 day notice requirements. The first involves an employer who was actively seeking capital who in good faith believed that giving notice to the employees would have precluded from obtaining the need capital, referred to as the “faltering company” exception. The second exception occurs when a “sudden, dramatic, and unexpected” business circumstance not reasonably foreseen and outside the employer’s control. The last exception includes a “natural disaster” exception such as a flood, earthquake or drought.
Constitutional Protections
An employer may not take an adverse employment action against a worker for exercising constitutional rights. However, this applies only where the employer is a public entity since constitutional rights exist against state action rather than action by private employers.
Military Leave
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), workers who enter military service and receive an honorable discharge are guaranteed reemployment, protected against discrimination and retaliation on the basis of their service or time in service. Though the Act specifically does not apply to temporary workers, it does apply to anyone with a realistic expectation of ongoing employment such as a seasonal worker who returns on a recurring basis or part-time workers who work on a continued basis. To take advantage of USERRA, an employee:
- must provide advance written or verbal notice to the employer (unless is unreasonable or unable to do so by military necessity),
- must take a leave from this particular employer of no more than a cumulative of five years, and
- must submit an application for reemployment within the required time period (which depends on the length of the individual’s service).
If these requisites are satisfied, the employee must be allowed to return to the position in which she or he would have found themselves if they had remained with the employer, or a position of equivalent rank, pay and seniority. However, an employer is relieved of the obligation to reemploy under USERRA if its circumstances have changed so reemployment is impossible, or if it would impose an undue burden on the employer.
An employer is not required to pay the worker during the leave unless, of course, the worker chooses to use accrued allowable paid leave (though they are not required to use that leave). The act also contains provisions for the continuation of medical coverage and pension benefits (for which military leave constitutes standard work time with the employer).
Employment at-will
In most instances, the employment contract will not state its expiration date. In such a case, the contract may be terminated at any time by either party. However, the contract may expressly state that it will last for a specified period of time such as a contract to work as a general manager for five years.
Ordinarily a contract of employment may be terminated in the same manner as any other contract. If it is to run for a definite period of time, the employer cannot terminate the contract at an earlier date without justification. If the employment contract does not have a definite duration, it is terminable at will. This is called employment at will. Under the employment at will doctrine, the employer has historically been allowed to terminate the contract at any time for any reason or for no reason. Some State Courts and some State Legislatures have changed this rule by limiting the power of the employer to discharge the employee without cause. For example, Court decisions have carved out exceptions to this doctrine when the discharge violates an established public policy, such as discharging an employee in retaliation for insisting that the employer comply with the State’s Food and Drug Act.
Courts may sometimes construe an employer’s statements concerning continued employment as a part of the employment contract, and therefore require good cause for the discharge of an at-will employee. Also, written personnel policies used as guidelines for the employer’s supervisors have been interpreted as restricting the employer’s right to discharge at-will employees without just cause. Employee handbooks or personnel manuals have been construed as part of the employee’s contract. This is why all personnel manuals and employee handbooks should contain a disclaimer. A sample disclaimer would be: This employee handbook is not intended to create any contractual rights in favor of you or the company. The company reserves the right to change the terms of this employee handbook at any time.
As mentioned earlier, many state courts will recognize limited public policy exceptions to the employment-at-will doctrine. For example, there is a limited public policy exception where an employee can prove that his discharge was motivated by refusal to engage in illegal acts for his employer.
Most states recognize two public policy exceptions to the employee-at-will doctrine:
- One is the whistle-blower defense that protects employees against discharge for reporting illegal conduct or conduct that violates public policy;
- Another protects employees who refuse to participate in illegal conduct.
Frequently Asked Questions Regarding Employment Law
When is overtime due?
For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.
Some states also have enacted overtime laws. Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).
When must breaks and meal periods be given?
Federal law does not require that breaks or meal periods be given to workers. Some states may have requirements for breaks or meal periods. If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee’s representative).
What notices must be given before an employee is terminated or laid off?
Federal law has no requirements for notice to an employee prior to termination or lay-off. In certain cases, employers must give the workers advanced notice of mass layoffs or plant closure. The Worker Adjustment and Retraining Notification Act (WARN) helps ensure advance notice in cases of qualified plant closings and mass layoffs. Some states may have requirements for employee notification prior to termination or lay-off.
How many hours per day or per week can an employee work?
Federal law does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
How are vacation pay, sick pay, and holiday pay computed and when are they due?
Federal law does not require payment for time not worked, such as vacations, sick leave or holidays. These benefits are a matter of agreement between an employer and an employee (or the employee’s representative).
What is the minimum wage?
As of July 2016, the federal government mandates a nationwide minimum wage of $7.25 per hour.
Many states also have minimum wage laws. Where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages. Various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees and student-learners.
How many hours is full-time employment? How many hours is part-time employment?
Federal law does not define full-time employment or part-time employment. This is a matter generally to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.
What is the minimum wage for workers who receive tips?
An employer of a tipped employee is only required to pay $2.13 an hour in direct wages if:
- that amount plus the tips received equals at least the Federal minimum wage,
- the employee retains all tips and
- the employee customarily and regularly receives more than $30 a month in tips.
Is extra pay required for weekend or night work?
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative). Federal law does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.
I recently accepted a job as a computer software engineer at a higher salary than my previous job. My employer says that I am not entitled to overtime pay. Is this correct?
The FLSA was amended in 1996 to exempt from overtime certain highly-skilled computer professionals who are paid at least $27.63 per hour, and who meet specific duty requirements of the FLSA.
What hours can young people (under 18) work?
Under the FLSA, the minimum age for employment in non-agricultural employment is 14. Hours worked by 14- and 15-year-olds are limited to:
- Non-school hours;
- 3 hours in a school day;
- 18 hours in a school week;
- 8 hours on a non-school day;
- 40 hours on a non-school week; and
- Hours between 7 a.m. and 7 p.m. (except from June 1 through Labor Day, when evening hours are extended to 9 p.m.)
Youth 14 and 15 years old enrolled in an approved Work Experience and Career Exploration Program (WECEP) may be employed for up to 23 hours in school weeks and 3 hours on school days (including during school hours). The FLSA does not limit the number of hours or times of day for workers 16 years and older.
Many states have enacted child labor laws as well. In situations where both the FLSA child labor provisions and state child labor laws apply, the higher minimum standard must be obeyed.
What is the youngest age at which a person can be employed?
The FLSA sets the age of14 as the minimum age for most non-agricultural work. However, at any age, youth may deliver newspapers; perform in radio, television, movie, or theatrical productions; work in businesses owned by their parents (except in mining, manufacturing or hazardous jobs); and perform babysitting or perform minor chores around a private home. Different age requirements apply to the employment of youth in agriculture.
When can an employee’s scheduled hours of work be changed?
Federal law has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee’s work hours without giving prior notice or obtaining the employee’s consent (unless otherwise subject to a prior agreement between the employer and employee or the employee’s representative).
I didn’t get my last paycheck. What can I do?
Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, contact the Department of Labor’s Wage and Hour Division.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (“FMLA”) provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.
I am having a baby and want to take some time off from work after the baby’s birth. How much time am I entitled to take?
The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave each year with continued group health insurance coverage during the leave for specified family and medical reasons, including the birth or adoption of a child, or placement of foster children.
The first step is to determine if your employer is covered under the Act. The Act covers private employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Public agencies, as well as public elementary and secondary schools, are covered employers regardless of the number of employees.
The next step is to determine your eligibility under the Act. To be eligible, you must have worked for your employer for at least 12 months, have worked at least 1250 hours during the past 12 months, and work at a location where your employer employs at least 50 employees at the site or within 75 miles of the site. The 12 months you are required to have worked for your employer do not have to be consecutive.
I just found out that I am pregnant. Can my employer fire me or reassign me?
Under the Civil Rights Act of 1964 an employer with 15 or more employees cannot fire you because you are pregnant, and must permit you to continue working as long as you are able. Some states have laws that cover employers with less than 15 employees.
Do I get paid while on jury duty?
Employers are not required by federal law to pay employees for time not worked, including jury duty. This type of benefit is generally a matter of agreement between an employer and an employee (or the employee’s representative).
Must employers grant leave to employees called up by the National Guard or Reserve?
Yes, an employee must be granted a leave of absence to perform military service.
Where can I go for assistance concerning my employment and reemployment rights as a veteran or member of the Guard or Reserve?
Employment and reemployment rights for veterans and reservists are provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Department of Labor’s Veterans’ Employment and Training Service (VETS) administers and enforces USERRA. You should contact your local VETS office for help. You can receive USERRA information from VETS or file a complaint if you believe your rights have been violated. Another resource for National Guard and Reserve members is the National Committee for Employer Support of the Guard and Reserve, an organization within the Department of Defense that can provide information and informal mediation services.
What are the basic reemployment rights when an employee returns following military service?
The employer must promptly reemploy the service member. “Promptly” means within days, not months. Generally the reemployment position should be the one the person would have attained had he or she remained continuously employed during the period of military service.
Does the Uniformed Service Employment and Reemployment Act (USERRA) apply to very small employers?
USERRA applies to all public and private employers in the United States, regardless of size. It also applies in overseas workplaces that are owned or controlled by U.S. employers.
Is an employer required to pay an employee while the employee is on military duty?
While many employers take the commendable step of providing all or part of employees’ pay while they perform military service, there is no obligation under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for them to do so.
Can an employer require an employee to produce military orders before granting a military leave of absence?
No. The Uniformed Services Employment and Reemployment Rights Act (USSERA) requires that an employee or a responsible military official provide advance notice to the employer of military service. The notice may be verbal or written. Notice is not required if the giving of notice is precluded by military necessity or is otherwise impossible or unreasonable.
Must an employee’s job be kept open while the employee is on military duty?
Employers are permitted to hire persons to occupy a position vacated by an employee on active duty. However, the returning employee is entitled to reemployment upon completion of the military service, even if it requires termination of the replacement.
What is COBRA continuation health coverage?
Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA) health benefit provisions in 1986. The law amends the Employee Retirement Income Security Act, the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage that otherwise might be terminated.
What does COBRA do?
COBRA provides certain former employees, retirees, spouses former spouses, and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage
Who is entitled to benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA)?
There are three elements to qualifying for COBRA benefits. COBRA establishes specific criteria for plans, qualified beneficiaries, and qualifying events:
Plan Coverage: Group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA. Both full and part-time employees are counted to determine whether a plan is subject to COBRA. Each part-time employee counts as a fraction of an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full-time.
Qualified Beneficiaries: A qualified beneficiary generally is an individual covered by a group health plan on the day before a qualifying event who is either an employee, the employee’s spouse, or an employee’s dependent child. In certain cases, a retired employee, the retired employee’s spouse, and the retired employee’s dependent children may be qualified beneficiaries. In addition, any child born to or placed for adoption with a covered employee during the period of COBRA coverage is considered a qualified beneficiary. Agents, independent contractors, and directors who participate in the group health plan may also be qualified beneficiaries.
Qualifying Events: Qualifying events are certain events that would cause an individual to lose health coverage. The type of qualifying event will determine who the qualified beneficiaries are and the amount of time that a plan must offer the health coverage to them under COBRA. A plan, at its discretion, may provide longer periods of continuation coverage.
Qualifying Events for Employees include the voluntary or involuntary termination of employment for reasons other than gross misconduct and/or reduction in the number of hours of employment.
Qualifying Events for Spouses include:
- Voluntary or involuntary termination of the covered employee’s employment for any reason other than gross misconduct;
- Reduction in the hours worked by the covered employee;
- Covered employee’s becoming entitled to Medicare;
- Divorce or legal separation of the covered employee; and
- Death of the covered employee
Who pays for COBRA coverage?
Beneficiaries may be required to pay for COBRA coverage. The premium cannot exceed 102 percent of the cost to the plan for similarly situated individuals who have not incurred a qualifying event, including both the portion paid by employees and any portion paid by the employer before the qualifying event, plus 2 percent for administrative costs. For qualified beneficiaries receiving the 11 month disability extension of coverage, the premium for those additional months may be increased to 150 percent of the plan’s total cost of coverage.
COBRA premiums may be increased if the costs to the plan increase but generally must be fixed in advance of each 12-month premium cycle. The plan must allow qualified beneficiaries to pay premiums on a monthly basis if they ask to do so, and the plan may allow them to make payments at other intervals (weekly or quarterly).
The initial premium payment must be made within 45 days after the date of the COBRA election by the qualified beneficiary. Payment generally must cover the period of coverage from the date of COBRA election retroactive to the date of the loss of coverage due to the qualifying event. Premiums for successive periods of coverage are due on the date stated in the plan with a minimum 30-day grace period for payments. Payment is considered to be made on the date it is sent to the plan.
If premiums are not paid by the first day of the period of coverage, the plan has the option to cancel coverage until payment is received and then reinstate coverage retroactively to the beginning of the period of coverage. COBRA beneficiaries remain subject to the rules of the plan and therefore must satisfy all costs related to co-payments and deductibles, and are subject to catastrophic and other benefit limits.
What is ERISA?
The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire. ERISA is a federal law that sets minimum standards for pension plans in private industry. For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have an interest in their pension that cannot be forfeited, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death. ERISA does not require any employer to establish a pension plan. It only requires that those who establish plans must meet certain minimum standards. The law generally does not specify how much money a participant must be paid as a benefit.
Who is responsible for handling private pension plan complaints?
The U.S. Department of Labor’s Pension and Welfare Benefits Administration is responsible for regulating private pension plans.
What is worker’s compensation?
For most kinds of employment, state workers’ compensation statutes govern compensation for injuries. The statutes provide that the injured employee is entitled to compensation for accidents occurring in the course of employment. Every State has some form of workers’ compensation legislation. The statutes vary widely from State to State. When an employee is covered by a workers’ compensation statute, and when the injury is job connected, the employee’s remedy is limited to what is provided in the worker’s compensation statute. In other words, the employee cannot sue his employer for negligence. Generally, no compensation is allowed for a willful, self-inflicted, injury, or one sustained while the employee is intoxicated.
Who is responsible for handling Workers’ Compensation complaints?
The U.S. Department of Labor’s Office of Workers’ Compensation Programs is responsible for regulating workers’ compensation issues involving federal workers. All other complaints are handled by the particular state involved.
What are employers’ responsibilities under the Occupational Safety and Health Act (OSHA)?
The Occupational Safety and Health Act requires employers to provide a safe and healthful workplace free of recognized hazards and to follow OSHA standards. Employers’ responsibilities also include providing training, medical examinations and recordkeeping.
What is an Occupational Safety and Health Administration (OSHA) standard?
OSHA issues standards or rules to protect workers against many hazards on the job. These standards limit the amount of hazardous chemicals workers can be exposed to, require the use of certain safety practices and equipment, and require employers to monitor hazards and maintain records of workplace injuries and illnesses. Employers can be cited and fined if they do not comply with OSHA standards. It is also possible for an employer to be cited under OSHA’s General Duty Clause, which requires employers to keep their workplaces free of serious recognized hazards. This clause is generally cited when no OSHA standard applies to the hazard.
What is the relationship between the EEOC and the U.S. Department of Justice?
If the EEOC, after investigating a charge of employment discrimination filed against a state or local government employer under Title VII, or the Americans with Disabilities Act, determines that there is reasonable cause to believe a violation of the law has occurred and conciliation efforts are unsuccessful, the EEOC will then refer the charge to the Department of Justice. The Department of Justice will either initiate litigation on the charge or issue a notice of right to sue to the charging party, which entitles the charging party to file his or her own lawsuit in court.
Is there a time limit involved with respect to filing a charge of discrimination with the EEOC under Title VII?
Yes. In most instances, a charge must be filed within 300 days of the act of discrimination. In some states the charge must be filed within 180 days of the act of discrimination.
What damages can an employer incur if it loses a case for violation of Title VII?
A court can award any of the following remedies for violation of Title VII:
- A court order called an injunction ordering the employer to stop the discriminatory practice;
- Back pay for up to two years in appropriate situations such as an improper discharge;
- Punitive damages to punish the employer for flagrant violations of the Act;
- An affirmative action program to remedy the effects of past discrimination; and
- Attorneys’ fees to reimburse the winning party for his legal expenses.
How can an individual who wants to file a private suit retain an attorney to represent him or her in a Title VII suit?
The local EEOC office and the courts often maintain lists of attorneys who handle cases involving employment discrimination. Another source for obtaining names of attorneys is the lawyer referral services operated by state and local bar associations.
What employers are covered by title I of the ADA, and when is the coverage effective?
The title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994.
What practices and activities are covered by the employment nondiscrimination requirements of the ADA?
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Who is protected from employment discrimination by the ADA?
Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if she/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the “negative reactions” of customers or co-workers.
Who is a “qualified individual with a disability?”
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
Does an employer have to give preference to a qualified applicant with a disability over other applicants?
No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.
What limitations does the ADA impose on medical examinations and inquiries about disability?
An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how he would perform these functions.
An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.
However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or satisfactorily reduced through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs.
Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations.
Does the ADA require employers to develop written job descriptions?
No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function.
What is “reasonable accommodation?”
Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
What are some of the accommodations applicants and employees may need?
Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.
When is an employer required to make a reasonable accommodation?
An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost.
What are the limitations on the obligation to make a reasonable accommodation?
The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.
Must an employer modify existing facilities to make them accessible?
The employer’s obligation under Title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees. For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship.
Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual’s work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.
Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation?
No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.
Can an employer be required to modify, adjust, or make other reasonable accommodations in the way a test is given to a qualified applicant or employee with a disability?
Yes. Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure.
Can an employer maintain existing production/performance standards for an employee with a disability?
An employer can hold employees with disabilities to the same standards of production or performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation. An employer also can hold employees with disabilities to the same standards of performance as other employees regarding marginal functions unless the disability affects the person’s ability to perform those marginal functions. If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring but may not exclude an individual with a disability who is satisfactorily performing a jobs essential functions.
Can an employer establish specific attendance and leave policies?
An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship.
Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee with a disability?
Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
Are applicants or employees who are currently illegally using drugs covered by the ADA?
No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” protected by the ADA when the employer takes action on the basis of their drug use.
Is testing for the illegal use of drugs permissible under the ADA?
Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.
Are alcoholics covered by the ADA?
Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.
How are the employment provisions of the ADA enforced?
The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys’ fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.
What are an employer‘s recordkeeping requirements under the employment provisions of the ADA?
An employer must maintain records such as application forms submitted by applicants and other records related to hiring, requests for reasonable accommodation, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship for one year after making the record or taking the action described (whichever occurs later). If a charge of discrimination is filed or an action is brought by EEOC, an employer must save all personnel records related to the charge until final disposition of the charge.
Does the ADA require that an employer post a notice explaining its requirements?
The ADA requires that employers post a notice describing the provisions of the ADA. It must be made accessible, as needed, to individuals with disabilities. A poster is available from EEOC summarizing the requirements of the ADA and other Federal legal requirements for nondiscrimination for which EEOC has enforcement responsibility. EEOC also provides guidance on making this information available in accessible formats for people with disabilities.
