©2009 Alston Hunt Floyd & Ing Basics on Employment Law Anna Elento-Sneed Alston Hunt Floyd & Ing.

©2009 Alston Hunt Floyd & Ing

Basics on Employment Law

Anna Elento-Sneed

Alston Hunt Floyd & Ing


Federal & State Laws Governing Employers

Labor law Equal employment

opportunity Wage & hour Government

contracting Employee benefits Safety & health

Business

transaction Workplace privacy Proprietary rights Wrongful

termination Tort claims


Staffing Options

Available options• Employees• Independent contractors• Temporary or leased employees• Volunteers

Differences between options• Degree you can control the individual• Obligation to provide wages and benefits• Responsibility for their injuries• Responsibility for their conduct


Staffing Options

Employee IC Temp Volunteer

Control Employer

Controls

IC

Controls

Limited Control

Limited Control

Wages

Benefits

Employer

Provides

None Agency Provides

None

Their

Injuries

Workers

Comp

Lawsuit WC or

Lawsuit

Lawsuit

Injury to 3rd p.

Employer IC or Contracting Company

Temp or Contracting Company

Volunteer or

Company


Basics of Compensation

Determine Which Law Applies Federal law – employers engaged in

commerce or production of goods with annual gross volume of $500,000 or more

State law – all employers Exception: Employees with guaranteed

salary of at least $2,000 or more per month If both apply, you follow the law more

favorable to the employee



Properly Classify Employees Exempt Employees

Paid guaranteed salary ($2,000 or more per month)

Fall into specific categories: Executive, Administrator, Supervisor (Hawaii only), Professional, Computer Techs (federal only), Outside Sales, Outside Collector (Hawaii only)

Nonexempt Employees Paid at least minimum wage ($7.25/hour) Paid overtime after 40 hours per week Must keep time records



Pay Correctly Must have two payroll periods per month Must pay “current” Must pay within 7 days after payroll closes Deductions limited to those required by law, court

order, or permitted by written authorization by employee Cannot require authorization for certain situation

Payment upon separation Must pay on date of termination May pay on regular pay day if employee resigns without

giving one payroll period notice


Mandatory Benefits

Unemployment Insurance Provided to all employees Paid by employer through quarterly

contributions (% of payroll) Contributions paid to state Unused contributions are not reimbursed

Provides benefits to employees who are terminated or resign for good cause

Employer may contest award of benefits Presumption is to award benefits


Mandatory Benefits

Workers Compensation Paid by employer through purchase of

private insurance Provides partial wage replacement,

reimbursement for medical expenses, and payment for permanent disability

Employer may contest award of benefits Presumption is to award coverage Insurance carrier/employer has burden to

prove otherwise


Mandatory Benefits

Temporary Disability Insurance (TDI) Provided to all employees who have been

employed for 14 or more weeks in the State & who work 20 or more hours/week

Coverage provided through insurance Employer pays majority

Max employee contribution = 0.5% of employee’s weekly wage

Provides wage replacement for disabled employees beginning on 8th day up to max 26 weeks


Mandatory Benefits

Prepaid Health Care Provided to all employees who work 20 or more

hours/week for 4 or more consecutive weeks Employee may voluntarily waive if he/she is covered by

another plan Coverage provided through insurance

Insurance must meet state requirements Employee contributions limited If employee disabled, coverage continues for 3

months following disability


Mandatory Benefits

Leaves of Absence Types of Leave

Pregnancy Family Leave (federal and state) Jury Military Voting

Types of leave required depends upon size of employer and particular situation involved


Mandatory Leaves

Pregnancy FMLA HFLL

Coverage All 50+ 100+

Events Disability due to pregnancy or childbirth

Pregnancy, birth, adoption, serious illness of self or family

Pregnancy, birth, adoption, serious illness of family

Length Per doctor 12 weeks 4 weeks

Wages Unpaid Unpaid Unpaid*

Benefits Continues Continues Continues

Reinstate Yes Yes Yes


Hiring, Managing &Terminating Employees

These are critical employment decisions

Need to make sure that these decisions are based on legitimate, non-discriminatory business reasons

Key is to document your decision-making process


Hiring, Managing &Terminating Employees

Hiring Use job descriptions and employment

applications Be careful if you use testing Plan out your interviews Reference check before you hire Be careful when using offer letters Keep all paperwork


Hiring, Managing & Terminating Employees

Managing Adopt policies & procedures

Establishes do’s and don’ts Sets performance standards Consistent, uniform enforcement is important

Adopt communication systems Handbooks, memos, newsletters, bulletin boards Training Meetings

Adopt grievance procedures Use separate procedure for discrimination,

harassment and retaliation complaints


Hiring, Managing & Terminating Employees

Terminating Notice Reasonable rule or order Investigation Fair investigation Proof gathered during investigation Equal treatment Penalty


ADA Compliance

Understand ADA Process It’s a specific process

Different from workers compensation Different from TDI

Requires employer to work with doctors Impairment: Is employee impaired? Disabling: Is impairment disabling? Essential function: Does disability affect

individual’s ability to perform essential function?

Accommodation: Can disability be reasonably accommodated?


ADA Compliance

• Key Documentation• Job description• Medical opinion• Interactive accommodation notes

• Use Regulations to Establish:• Job qualifications• Reasonableness of accommodations• Direct threat


Discrimination, Harassment & Retaliation

The Problem Most common form of employment

lawsuits Governed by federal and state laws Lawsuits can be expensive and very

disruptive Supervisors and managers can be held

individually liable, in addition to the company


Discrimination, Harassment & Retaliation

Keys to Minimizing Impact Have detailed policy and procedure Train managers, supervisors & employees Have explicit rules for contractors and third

parties Take proactive approach

Encourage early reporting Immediately investigate and complete quickly Take comprehensive remedial actions

(employees, contractors, third parties) Keep meticulous documentation


Whistleblowing

The Problem

• Employees may mistakenly believe company is engaging in unlawful, unsafe or unethical practice

• Employment actions taken against such employees become suspect


Whistleblowing

Strategies for Managing Problem Educating employees about actual

obligations under the law Create procedure for employees to report

concerns so internal investigation can be conducted Conduct thorough investigation Communicate findings to employees Document findings

If employee takes legal action anyway, will have evidence to defend against claims


Final Comments

Employment law is complicated Covered by federal and state laws Laws, regulations and court decisions

change Important for employers to keep up

with the changes You need to be proactive Join organizations that can help you

keep up with the changes

©2009 Alston Hunt Floyd & Ing Basics on Employment Law Anna Elento-Sneed Alston Hunt Floyd & Ing.

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