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Finding Talent and Labor Laws

March 7, 2012

Presented by Grace H. Lee, Esq.

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Hiring New Employees

Anti-Discrimination Laws: Federal and state laws prohibit hiring procedures which discriminate on the basis of protected characteristics

Applies to discrimination in: hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of various protected characteristics.

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Protected Categories

Federal:

Sex

Race

Age

Religion

National Origin

Color

Disability

Veterans Status

Pregnancy

D.C. Adds: Sexual Orientation

Marital Status

Matriculation

Family Responsibilities

Familial Status

Gender Identity

Personal Appearance

Political Affiliation

Genetic Information

Other Categories

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Hiring New Employees Hiring process

– Consistency is key (application, interview, background check, etc).

Pre-Employment Inquiries

– Interviewing Do’s and Don'ts (illegal questions)

– Testing (ensure consistency)

ADAAA

– Respond to request for reasonable accommodation

Background Checks (Credit & Criminal)

– Can be done (and, in some cases, it is mandatory)

– Must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws

– Must notify the applicant

– Offense must be job related to be used as basis of employment decision

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Hiring: The At-Will Doctrine

The “at-will” employment relationship means you may terminate for any

reason or no reason at any time, with or without notice.

Caveat: You cannot terminate an at-will employee for an illegal reason

(i.e. discrimination, retaliation) or in a manner contrary to an agreement.

Offer letter v. employment agreement– Offer Letter

• Important if you have weak or non-existent employment policies or employee manual.

• Can be used to clarify issues raised during the recruitment process and set expectations from both parties.

• Typically not for a term and should contain affirmation of at-will status.– Employment Contract

• Typically at odds with the at-will concept, and it should be drafted as such.• Used as a recruitment and retention tool.• Used to protect highly sensitive and proprietary information through the use of

restrictive covenants.• Normally recommended only for executives, professionals or confidential (i.e.,

IT) positions.

Ensure consistency with employee handbook

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Hiring: Immigration Compliance

Form I-9– Verify that employees are legally authorized to work in the U.S.

• Does not apply to volunteers• Does not apply to independent contractors

– Refrain from discrimination against individuals based on national origin, race, or citizenship

– Must complete Form I-9 within three business days of the first day of work for pay

– Begin I-9 process after you offer the job and the employee accepts

– Social security number is voluntary– Do not ask request specific documents – let the employee pick

from list of options on the form– Maintain for three years after the date of hire, OR one year after

the date of termination, whichever is later– Keep I-9 separate from other personnel file documents

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Wage & Hour and Leave Issues

The Law:

– The Family & Medical Leave Act of 1993 (FMLA)

– The Fair Labor Standards Act

Exempt/Non-Exempt Status

Independent Contractors

Alternative Work Arrangements (e.g. flextime)

– Consistency is key. Employees must have equal access to work arrangements, to avoid discrimination claims

• Create policies (e.g. Telecommuting Policy and Agreement)

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Family and Medical Leave Act

Federal law and District of Columbia Updated regulations for Federal FMLA and DC FMLA

Federal FMLA provides up to 12 weeks of family and medical leave

per 12 month period

Federal FMLA provides up to 26 weeks of military family leave in a

12 month period

DC FMLA provides up to 16 weeks of family leave AND 16 weeks of

medical leave in a 24-month period

Federal and D.C. FMLA run concurrently, if applicable

Should comply with the law that provides employee with greater

benefit

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FMLA Coverage

Federal– Must be employed by an employer with 50 or more

employees in a 75 mile radius of the place the employee works

– Employee must have worked at least 1,250 hours during the previous 12 months prior to the request for leave

DC– Employer must have at least 20 employees– Employee must have worked at least 1,000 hours in the

12-month period immediately preceding the request for leave

– Employment must be without a break in service

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FMLA Leave Benefits

Job Security– Must hold position– Employee entitled to return to same or equivalent job– May fill position temporarily until employee returns– Can eliminate job if would have done so even if

employee not out on leave Unpaid leave Benefits

– Employer must continue to receive benefits during the leave

– Health insurance must continue as if the employee was still working

No loss of benefit or seniority accrued prior to the start of the employee’s leave

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Federal and DC FMLAReasons for Leave

Birth of a child or to care for a newborn child;

Placement of a child with the employee for adoption or

foster care, or placement of a child with the employee

for whom the employee permanently assumes and

discharges parental responsibility;

Employee is needed to care for a “family member” with

a serious health condition;

Employee’s own ‘serious health condition’ that makes

the employee unable to perform the functions of the

job

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Military Leave Entitlement

Under Federal Military FMLA an eligible employee may take leave for the following reasons:– To address certain qualifying exigencies arising out of

the fact that the spouse, or a son, daughter or parent of the employee is on ‘covered active duty’ (or has been notified of an impending call or order to covered active duty) in the Armed Forces

• Up to 12 workweeks of leave in a 12-month period (rolling back)

– To address military caregiver leave to care for a son, daughter, parent, or next of kin who is an injured or ill servicemember or veteran

• Up to 26 workweeks of leave in a 12-month period (rolling forward)

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DC Accrued Sick and Safe Leave Act

ASSLA provides paid sick leave for absences due to the employee’s or family member's medical condition, domestic violence or sexual abuse

Up to seven days of paid leave per year Reasons for leave

– Absence resulting from physical or mental illness, injury, or medical condition of the employee

– Absence resulting from obtaining professional medical diagnosis or care, preventative medical care (must make reasonable efforts to schedule leave so it does not unduly disrupt school’s operations)

– Absence for purpose for caring for a child, parents, spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care described above

– Absence if the employee or employee’s family member is a victim of stalking, domestic violence, or sexual abuse

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Wage and Hour

Federal law - Fair Labor Standards Act (FLSA)

DC same as Federal for exempt v. nonexempt Two Classifications

– Overtime eligible (non-exempt)• Entitled to overtime pay (one and half times the

regular rate of pay) for hours worked over forty in a workweek

• Paid hourly • Salaried employees can be overtime eligible

– Non-Overtime eligible (exempt)• Paid the same amount regardless of number of

hours worked• Must meet certain requirements to be exempt

from overtime pay

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Employee or Independent Contractor

Legal Tests (no more 20-factor test)– Integral part of business– Permanency of relationship– Who supplies facilities and equipment– Opportunities for profit and loss– Provides this work for other employers– Managed by company employees or

independent

Independent Contractor Agreement

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Employment Separation

Separation and Release Agreements (Severance)– Necessary in some circumstances

• Troublesome termination• Protected category (i.e. race, disability)• High salary• High profile

Confer with counsel to ensure that the agreements

properly protect the company and are legally

enforceable.

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Employment Separation

Separation and Release Agreements– Typical provisions:

• Date of termination - mutual parting, with non-disparagement

• Severance with specific terms (withhold taxes)• General Release (for all entities), with promise not to

sue– OWBPA language, consult a lawyer, 21 days to

consider, 7 days to revoke ADEA release• Survival of Restrictive Covenants

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Employment Separation

Exit Interviews

Post-Employment Benefits Entitlement

The Return of Property & Confidential Information

– Company Confidentiality Policy

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Questions?