Labor Law (West's Encyclopedia of American Law)
An area of the law that deals with the rights of employers, employees, and labor organizations.
U.S. labor law covers all facets of the legal relationship between employers, employees, and employee LABOR UNIONS. Employers' opposition to recognizing employees' rights to organize and bargain collectively with management has resulted in a system of primarily federal laws and regulations that is adversarial in nature. Modern labor law dates from the passage of the WAGNER ACT of 1935, also known as the National Labor Relations Act (NLRA) (29 U.S.C.A. §§ 151 et seq.). Congress has passed two major revisions of this act: the TAFT-HARTLEY ACT of 1947, also known as the LABOR MANAGEMENT RELATIONS ACT (29 U.S.C.A. §§ 141 et seq.), and the LANDRUM-GRIFFIN ACT of 1959, also known as the Labor Management Reporting and Disclosure Act (29 U.S.C.A. §§ 401 et seq.).
The railroad and airline industries are governed by the Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.), originally passed in 1926 and substantially amended in 1934. Federal employees are covered by the separate Federal Service Labor Management and Employee Relation Act (5 U.S.C.A. §§ 7101 et seq.). Labor law is also made by the NATIONAL...
(The entire section is 4294 words.)
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Benefits (Encyclopedia of Everyday Law)
Employee benefits are those incentives, amenities, or perquisites ("perqs") that employees receive above and beyond their basic salaries or wages. Certain benefits are required by law (such as overtime pay or excused absences under the Family and Medical Leave Act). Additional benefits or "benefit packages" are generally negotiated as employment terms and conditions between employer and employee. They may be negotiated individually between the parties or through labor-management contract negotiations affecting classes of employees as a whole. Importantly, if employees are represented by bargaining units within a union, they cannot negotiate directly with employer representatives for any change, addition, or deletion of a benefit (this statement does not relate to employee "choice" benefits packages, popularly referred to as "cafeteria plans," discussed below).
An employee benefit may be something as simple as free soft drinks during working hours or as complex as stock options or profit sharing plans. Typically, benefits include such advantages as health and life insurance, paid vacation or time off, flexible work hours, holiday pay, and retirement or PENSION pay.
Laws that Mandate Certain Benefits
There are certain employee benefits, above and beyond wages, that are legally required of all employers. These include social security contributions, federal and state unemployment insurance, and worker's compensation. The unemployment insurance program was established under Title IX of the federal SOCIAL SECURITY ACT OF 1935 (42 USC 1101), which also governs social security contributions. Minimum working conditions and working environments are mandated by the federal Occupational Safety and Health Act (OSHA).
Laws that Impact Employee Benefits
- The EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) regulates employers who offer pension or retirement benefit plans to their employees. One of the most important components of ERISA as it relates to employee benefits is that certain employers and plan administrators must pay premiums to the federal government for insurance to protect employee retirement benefits.
- The Comprehensive Omnibus Budget Reconciliation Act (COBRA) has an important provision requiring the continuation of health-care benefits for employees whose employment is terminated (voluntarily or involuntarily) for a certain number of months, which may be further extended if employees pay the associated costs.
- The National Labor Relations Act (NLRA) guarantees freedom of choice and majority rule for employees in choosing exclusive bargaining representatives to negotiate benefits for covered bargaining unit employees.
- The Labor-Management Reporting and Disclosure Act of 1959 (also known as the Landrum-Griffin Act) protects employee contributions to union funds by requiring labor organizations to file annual financial reports.
- The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to allow up to 12 weeks of unpaid, jobprotected leave for the birth or ADOPTION of a child or the serious illness of an employee or a spouse, child, or parent.
- Veterans' Preference laws permit special employment preference rights for eligible veterans applying for governmental jobs. The preferential factors apply only at the time of initial hiring and/or in the event of a reduction in force.
Optional Employee Benefits
Following is a list of some of the more common employee benefits, sometimes referred to as fringe benefits, negotiated between employers and employees as conditions of employment. No law or constitution requires the offering of any of these benefits. However, once they have been contractually negotiated as part of the terms and conditions of employment, the failure to provide such benefits may expose employers to liability for breach of contract claims.
- Health and Life Insurance: Contrary to popular belief, no federal law requires employers to grant health and life insurance coverage to their employees. Health insurance coverage may be totally provided by the employer but is more often based on co-payment of insurance premiums with the employee. Spousal and/or dependent coverage is also an option. Long-term DISABILITY insurance is a premium benefit that most employers do not offer without substantial contributions from the employee toward the cost of the premiums.
- Paid Holidays: Contrary to popular belief, no federal law requires employers to grant paid holiday benefits to their employees. Paid holiday benefits are generally in the form of receiving full pay for a non-worked holiday or receiving premium pay for having worked on the holiday. The number of days designated as holidays varies from employer to employer, although certain ones are considered "standard," irrespective of an employee's personal beliefs or customs. They include: New Year's Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving, and Christmas Day. There are a handful of other days that employers may consider holidays, including Presidents' Day, Veterans' Day, Martin Luther King Day, etc.
- Pension and Retirement Benefits: This area of benefits, although optional on the part of the employer, invokes the greatest federal and state governance. Pension programs are covered in a separate entry. However, if a private employer does not provide a pension plan, the federal Internal Revenue Code permits individual workers to establish their own individual retirement accounts (IRAs) with registered financial institutions and to set aside a certain percentage of EARNED INCOME each year as tax-deferred contributions to the accounts. Self-employed persons may establish Keogh retirement accounts, which accomplish the same purpose.
- Paid Leave: This benefit may be in the form of vacation pay, paid sick leave, "personal days," funeral leave, military leave, or jury duty.
- Supplemental Pay: This benefit is used as an incentive for working less than desirable days or shifts. It includes overtime, weekend, or holiday pay, shift differentials, and nonproduction bonuses.
Nontraditional and Emerging Employee Benefits
In a way to induce employee hiring and retention, a number of employers have resorted to fewer common benefits packaging or offerings. These may include such desirable amenities as employee stock ownership plans (ESOPs), tuition reimbursement or paid higher education, dental or optical insurance coverage, child daycare services, paid parking or other commuting subsidies, fitness center or private club memberships, legal aid plans, company cars, flextime hours, casual work attire, home office assignments, and "domestic partner" benefits. A common benefit in the retail industry is a percentage discount on employee purchases of company products.
Employee "Cafeteria Plan" Benefits
Cafeteria plans, created by the Revenue Act of 1978 and governed by Section 125 of the Internal Revenue Code, are tax-qualified flexible benefit plans that offer employees choices in putting together their own benefits package by choosing from a list of options (thus, the term "cafeteria," indicating a pick-and-choose approach to individualized benefits). The popular plan program allows employees to choose between taxable benefits (such as cash or vacation pay) and at least two nontaxable benefits (such as term-life, dental, or health insurance).
Cafeteria plans are characterized by "open enrollment" periods during which plan participants must choose and enroll for selected benefits. The plans are renewed on a yearly basis, and mid-year alterations or amendments are only permitted when there is a "change in status" of an employee (e.g., change in marital status, number of dependents, a change in residence, a change in employment status, or a return from unpaid leave).
Section 125 benefits plans, including cafeteria plans, allow pre-tax allocation of employee wages toward benefit contributions, thus reducing the employee's TAXABLE INCOME. Another benefit plan qualified for Section 125 tax treatment is the Flexible Spending Account (FSA) which allows employees to set aside pretax monies to help pay for unreimbursed medical expenses and/or dependent care. However, in both forms of plans, unused benefits and unspent funds are forfeited.
Benefit Incidence Among Medium to Large Employers
The National Compensation Survey (NCS) of the U.S. Bureau of Labor Statistics tracks and publishes data on benefit incidence (expressed in terms of percentages of workers with access to or participation in employer-provided benefit plans). According to the last published NCS Survey (2001, based on 1999 data), the most prevalent employee benefit available to workers in the private sector was paid time off (with paid vacation and paid holidays being the most recurrent benefits).
Paid sick leave and term life insurance was an employee benefit enjoyed by more than half of all private-sector workers (in the 70s percentile for both). Fifty-three percent of employees participated in health care plan benefit programs, and 48 percent were covered by retirement or pension plans (most of which were contribution plans). Short- and long-term disability benefits were available to 36 and 25 percent of employees, respectively. The other frequently offered benefits were non-production bonuses (available to 42 percent of employees) and jobrelated education assistance (available to 41 percent of employees).
Benefit coverage in general was much more prevalent (predictably) among full-time employees: 64 percent of full-time, versus 14 percent of part-time employees, were covered by health care plans (overall, 53 percent of all employees were covered). Likewise 56 percent of full-time (versus 21 percent of part-time) employees were covered by retirement benefits plans (with 48 percent of all employees enrolled).
The greatest disparity in benefit incidence was in relation to the size of the company or establishment. For example, 81 percent of workers in companies with more than 2,500 employees had a retirement plan, compared with just 30 percent of workers with small establishments of 50 employees or less. Paid holidays were offered to 82 percent of employees in large establishments, compared to 66 percent in the smallest establishments.
Blue-collar and service workers were more likely to have their health care benefits fully paid for by their employers than their counterparts in professional or technical jobs. Goods-producing industries had a higher incidence of benefits coverage than did service-producing industries. Finally, geographic location affected benefits coverage, although less dramatically: 53 percent of workers in the Northeast and Midwestompared with 47 percent in the West, and 43 percent in the Southere covered by retirement benefits. Overall incidence of benefits, expressed by specific benefit, was as follows. (All fifty states were included in the NCS survey.)
- Retirement benefits: Forty-eight percent of all workers were participating in retirement plans. This number included 79 percent of union employees and 44 percent of nonunion employees. Employee contribution plans outweighed defined benefits by approximately 15 percent.
- Health care benefits: Fifty-three percent of all workers were covered by health insurance plans. This number included 73 percent of all union members and 51 percent of non-union members.
- Dental care benefits: Fifty-two percent of all workers enjoyed dental care insurance benefits, and 52 percent of union workers had dental coverage.
- Life insurance: Fifty-six percent of all workers had term life insurance as an employee benefit. This number included 78 percent of union members and 76 percent of those in professional or technical fields. The retail trade had the lowest incidence of life insurance benefits.
- Paid sick leave: Only 53 percent of all workers had paid sick leave, parallel with a 54 percent union member benefit incidence. Incidence (occurrence of available benefits, not occurrence of use of the paid sick leave) was highest among professional and technical employees (81 percent).
- Short-term disability insurance: Thirty-six percent of all workers were covered under short-term disability plans, with highest incidence among union employees (66 percent).
- Paid vacation: Just under 80 percent of all employees enjoyed paid vacations, higher among union members (86 percent) and professional/technical employees (88 percent) (75 percent for blue-collar or service employees). Forty-three percent of part-time employees were eligible for vacation benefits.
- Paid holidays: Seventy-five percent of all employees were paid for holidays. This number included 82 percent of union employees and 75 percent of non-union employees, but 36 percent of part-time employees. The retail industry faired poorly, with only 50 percent of employees being paid for holidays; manufacturing and utilities companies offered paid holidays to approximately 92 percent of their workers.
- On-site CHILD CARE: Only three percent of all workers participated in this benefit, with highest incidence (ten percent) in companies employing 2,500 or more. Prevalence of this benefit was slightly higher in the Northeast and lowest in the West.
- Severance pay: Twenty-two percent of all workers were protected with severance pay benefits, slightly higher (28 percent) among union members. The benefit most often occurred in companies employing 2,500 or more (53 percent), and the benefit appeared most frequently in the finance, insurance, and real estate industries (44 percent).
- Educational assistance: Work-related education assistance appeared as an available benefit most often in companies employing 2,500 or more (70 percent) and in the finance, insurance, and real estate industries (69 percent). Overall benefit incidence was 41 percent. Ten percent of employees received an education benefit that was not work-related.
- Savings and thrift plans: Of those establishments with 100 or more workers, 87 percent of participating employees may choose how their funds are invested and 65 percent may choose how the employer's matching funds are invested. The most recurring investment choices were company stock funds, COMMON STOCK funds, bond funds, government SECURITIES, and guaranteed investment contracts.
"Employee Benefits in Private Industry." United States Department of Labor, Bureau of Labor Statistics, National Compensation Survey. 1999. Available at .
"Kinder, Simpler Cafeteria Rules." Hirschman, Carolyn. HR Magazine. January 2001.
Summary of American Law. Weinstein, Martin. The Lawyers Cooperative Publishing Company: 1988.
"Summary of DOL Laws and Programs." U.S. Dept. of Labor. Available at http://www.dol.gov/opa/aboutdol/lawsprog.htm.
Discrimination (Encyclopedia of Everyday Law)
Over the course of the last 150 years, the majority of laws in the United States to protect employees from unfair labor practices perpetrated by employers were enacted as a result of the labor movement and realization of workers' rights. As the workers' role in mass production became vital to the capitalist market economy during the Industrial Revolution that commenced in Europe and spread to the United States in the 1820s, protection of workers' rights and government intervention (particularly the Federal government) to regulate employers to protect workers became a necessity to prevent exploitation of workers (including child laborers) in often dangerous working conditions. An outgrowth of this movement to protect employees and employees' rights from dangerous conditions and unfair wages and hours was the protection of employees from DISCRIMINATION by employers. More specifically, laws were enacted and enforced to prevent discrimination of targeted groups such as women and racial minorities and ensuring all employees are granted equal rights with respect to hiring, promotion, and termination decisions.
Laws specifically designed to protect workers commenced in earnest during the New Deal policies of Franklin Delano Roosevelt's presidential administration. New Deal policies, intended to ease the hardships caused by the depression, included laws to assist workers. The most prominent laws enacted by the Federal Government to protect workers during this period were the National Labor Relations Act of 1935 and the FAIR LABOR STANDARDS ACT of 1938. Provisions of the National Labor Relations Act of 1935 were initially part of the National Industry Recovery Act of 1933. However, employers and leaders in the business community did not embrace the provisions of the act. Employers and business leaders felt that the National Recovery Act of 1933 gave the Federal government too much power to regulate the operations and administration of businesses and would ultimately stifle competition. A contentious court battle ensued after passage of the act and the United States Supreme Court declared the National Industry Recovery Act of 1933 invalid in the case of A.L.A. Schechter Poultry Corporation v. United States (1935). Provisions of the National Recovery Act of 1933 that mandated that workers receive a MINIMUM WAGE salary and rights to join unions were then incorporated into the National Labor Relations Act of 1935. The validity of the National Labor Relations Act of 1935 was challenged before the Supreme Court in 1937 in National Labor Relations Board v. Jones & Loughlin Steel Corporation (1937). The Supreme Court, however, upheld the National Labor Relations Act of 1935 (also referred to as the Wagner Act) in a landmark decision that began an era of intervention by the Federal government to address unfair labor practices.
Labor laws pertaining specifically to discrimination have endeavored to protect workers from discrimination by their employer(s) based upon the employees race, gender, religion, national origin, age, marital status or physical DISABILITY. These laws were enacted as a derivative of both the greater labor movement and the "civil rights revolution" of the 1960s that sought to end discrimination in all social institutions, including the workplace. Labor discrimination may take several forms, but laws specifically prohibiting employment practices, such as discriminatory hiring, promotion, job assignment, termination, compensation and various types of harassment, were enacted by Federal law beginning in the early 1960s. There are also laws prohibiting retaliation against employees who initially lodge complaints. These laws are designed to protect employees. Some federal laws, however, do not always apply to state and local governments. In some late 1990s cases, the Supreme Court ruled that the federal laws place undue regulatory powers on state and local governments. In those instances, employees are protected by state and local laws but not federal laws.
National Labor Relations Act of 1935
The National Labor Relations Board (NLRB) was created by passage of the National Labor Relations Act of 1935. The NLRB allows workers to anonymously vote to unionize their workplace. The provisions of the NLRB apply to all employers engaged in interstate commerce although airlines, railroads, agriculture, and government employers are exempt. The five board members are appointed by the president of the United States. There are two principle aims of the NLRB: to determine the free-will choice of employees to be represented by unions by means of secret-balloting and to deter and remedy unfair labor practices by employers and unions. The NLRB investigates complaints of unfair labor practices. If the NLRB determines there is reasonable cause to suspect a violation, an attempt is made by the NLRB to settle the complaint between the disputing parties. If there is no agreeable SETTLEMENT, a formal complaint is issued and the complaint is heard before a NLRB administrative law judge. The judge issues an opinion that may be appealed to the board of the NLRB. The board's decision is subject to review by the United States COURT OF APPEAL. About 35,000 charges are filed annually with the NLRB.
Fair Labor Standards Act of 1938
The principle aim of the Fair Labor Standards Act (FLSA) was to ensure minimum wage and maximum hour requirements for all nonunion workers. The initial intent was to protect children, particularly those exploited and working in bad factory conditions. The FLSA helps entry level workers in low wage jobs, such as manufacturing and agriculture, by establishing minimum wage and maximum hour provisions. As of 2002, the minimum wage is $5.15 per hour worked and workers who work more than 40 hours in a 168-hour seven day workweek cycle must be compensated at one and one-half times their regular hourly wage.
The FLSA was amended in 1974 to extend to all employees of States and local governments. However, an organization of municipalities and state governments sued, proclaiming that the new amendments exceeded congressional authority to extend the minimum wage and maximum hours provisions of the FSLA. In a landmark decision, the United States Supreme Court held in the 1976 decision of National League of Cities et al. v. Usery, Secretary of Labor (1976) that the 1974 amendments of the FLSA did exceed congressional power and were therefore unconstitutional. The case limited Federal power to regulate state and local employers concerning minimum wage and maximum hours provisions.
Equal Pay Act of 1963
The Equal Pay Act of 1963 amended the FLSA by prohibiting wages based upon gender. According to the act, "equal work in jobs requiring equal skill, effort and responsibility and performed under similar working conditions" should be compensated equally, regardless of gender. Provisions of the Equal Pay Act of 1963 are enforced by Equal Employment Opportunity Commission (EEOC).
Title VII of the Civil Rights Act of 1964
Title VII of the CIVIL RIGHTS Act of 1964 (CRA) prohibits employment discrimination based on race, color, religion, sex, and national origin. There have been several notable amendments to the original CRA enactment in 1964. The act protects prospective and incumbent employees against those prohibited acts of failing or refusing to hire or discharging or discriminating with respect to promotion decisions.
The most practical legislation to ensure compliance regarding these matters was the creation of the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC) seeks to prevent unlawful discriminatory employment practices by investigating complaints and advocating on behalf of complainants. If the respondent is a public organization such as a public agency or government agency, and the EEOC finds an unlawful employment practice, the EEOC requests the organization to refrain. If the responding organization does not agree with the findings of the EEOC, the EEOC may commence a CIVIL ACTION. The court adjudicating the case then makes a determination. The court may reinstate or hire employees with or without back pay or any other relief. Discrimination may also be remedied by altering policies. Respondents may also appeal adverse rulings.
According to the CRA, employers may not engage in practices that may have a "disparate impact" on employees of a particular race, gender, religion, or national origin. Disparate impact occurs when a particular group is not hired or promoted at the same rate as another group. Proving a disparate impact practice may be difficult. The employee (the "plaintiff") must prove prima facie EVIDENCE of disparate impact. If the plaintiff is successful, the burden of proof then shifts to the employer, the "respondent," who must then claim that the selection methods and decisions are job related. Bonifide occupational qualifications (BFOQs) are requirements necessary for specific employment. For example, people who want to be public safety workers such as police officers and firefighters must be physically fit.
Unlawful employment practices may consist of discriminating against a particular race by not hiring or promoting because of race or not hiring or promoting members of that race at the same rate of other races hired or promoted. Violations involving national origin may consist of "English-speaking only" work rules. Employers may not discriminate because of accent or manner of speaking. Employers may not schedule examinations or other selection or promotional exams in conflict with employees' days of worship. The employer may not also maintain a restrictive dress code in conflict with specific religious attire. Also, mandatory "new age" training programs such as yoga or meditation may conflict with the non-discriminatory provisions of the religious. As of 2002, the EEOC handled between 75,000 and 80,000 complaints each year.
The Civil Rights Act (and subsequent amendments) grants power to recover COMPENSATORY DAMAGES and PUNITIVE DAMAGES for violations of other laws, such as the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The Civil Rights Act of 1991 amended several provisions of Title VII including extending the category aggrieved parties to include United State citizens working in foreign countries and clarifying what is necessary for the plaintiff to prove.
Age Discrimination in Employment Act of 1967
Discrimination based upon age has been the subject of numerous debates. The debate involves classification of age discrimination within discrimination based upon race, color, sex, national origin, or religion. The idea that older persons are not targeted because everyone ultimately ages is central to the debate. That is to say, since everyone ages, there is no separate class for aging individuals. Older persons do not form a unique and distinct class. The resistance to classifying age with race, gender, and religion caused it to be omitted from the original Civil Rights Act of 1964. Subsequently there were numerous challenges of the ADEA. The ADEA was originally intended for private employers; however, in 1974, amendments extended it to local and state governments. There have been two landmark Supreme Court cases regarding the application of the ADEA to state employers. In 1983, the Supreme Court held in the case of EECO v. Wyoming (1983) that the ADEA was a valid exercise of congressional authority. However, the Supreme Court later ruled in Kimel et al. v. Florida Board of Regents (2000) that persons could not sue state and local employers for violations.
Rehabilitation Act of 1973
The Rehabilitation Act of 1973 protects employees with "handicaps" from discriminatory practices by their employers. Persons are defined as handicapped by the Rehabilitation Act of 1973 if they have a physical or mental impairment that substantially limits one major activity or has a record of such impairment or is regarded as having such an impairment. The Rehabilitation Act of 1973 also provides money to states for employment training and counseling for persons with handicaps. Several provisions of the Rehabilitation Act of 1973 specify groups protected and rights granted. Section 504 prohibits organizations that receive federal assistance from discriminating against qualified persons with handicaps. The 1992 amendments brought the Rehabilitation Act of 1973 into compliance with the Americans with Disabilities Act (ADA). The act required states to provide access devices for persons with handicaps. The amendments in 1998 require access to electronic and information technology provided by the Federal government unless doing so causes an "undue burden." Provisions of the Rehabilitation Act of 1973 are enforced by the Office of Civil Rights (OCR).
Civil Service Reform Act of 1978
The Civil Service Reform Act of 1978 (CSRA) prohibits any employee with the authority to make personnel decisions from discriminating against applicants or incumbent employees based on the person's race, color, national origin, religion, sex, age, or disability. The CSRA also grants certain protections against personnel actions based upon a person's marital status or political affiliation. Provisions of the CSRA are enforced by the Federal Office of Special COUNSEL (OSC) and the Merit Systems Protection Board (MSPB).
Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 enacted in 1978, requires employers not to discriminate because of pregnancy, childbirth, or medical conditions related to pregnancy and childbirth. The PDA also applies to all females regardless of marital status. Provisions of the PDA are enforced by the EEOC.
Immigration Reform and Control Act of 1986
The IMMIGRATION Reform and Control Act of 1986 (IRCA) is not primarily focused on prohibitions against unlawful employment practices; however, one provision requires employers who require employee verification prior to hiring not to discriminate against national origin. Provisions of the IRCA are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Americans With Disabilities Act of 1990
ADA prohibits private employers, state and local governments, employment agencies and labor unions with 15 or more employees from discriminating against qualified employees with disabilities. An employer is prohibited from discriminating against persons with disabilities in hiring, firing, advancement, compensation, training and other benefits related to employment. According to the ADA, a person with a disability has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. The ADA protects employees with disabilities prior to initial employment and employees that develop disabilities while employed by the employer.
In addition to prohibition against unlawful employment practices, the employer must also make "reasonable accommodations" for qualified employees who can perform "essential functions" of the job. A reasonable accommodation may consist of making existing facilities readily accessible to persons with disabilities or modifying equipment, training examinations, and policies, or requiring readers or interpreters. However, an employer is not required to lower quality or production standards to make accommodations.
The Supreme Court held in Board of Trustees of the University of Alabama et al. v. Garrett et al. (2000) that suits in federal court by state employees to recover money damages by reason of the State's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. Essentially, the court ruling held that state employers are not bound by the ADA. Another recent Supreme Court ruling, Ella Williams v. Toyota (2001) also restricted the definitions of a person with a disability by adding that the disability must be in one or more major life activity which prevents the person "from performing tasks that are of central importance to most people's daily lives." The United States Supreme Court, with this ruling, attempted to clarify the broad language of the ADA to more precisely define when a person is to be considered disabled as opposed to impaired.
Family Medical Leave Act of 1993
The Family Medical Leave Act of 1993 (FMLA) protects employees against possible disruption in their employment caused by leave from work needed to care for a newborn or a sick family member. The FMLA applies to all public federal, state, and local municipal employers. The FMLA also applies to private employers who employ 50 or more employees in 20 or more workweeks in the current or proceeding year. Private employers must also be engaged in commerce or any industry affecting commerce.
The employee is entitled to specific benefits if employed by a public or private employer covered by the FMLA. The employee is entitled to 12 workweeks of unpaid leave during a 12-month period for: the birth and care of a newborn child of the employee, for placement with the employee of a son or daughter for ADOPTION or foster care, for care of an immediate family member (defined by the FMLA as a spouse, child, or parent) with a serious health condition (defined by the FMLA as "any period of incapacity or treatment connected with inpatient care in a hospital or hospice or residential medical-care facility or continuing treatment by a health care provider which includes any period in which the employee is unable to work, attend school, or perform regular activities due to a health condition, a pregnancy-related absence, a chronic serious health condition or a permanent long-term condition.") The employee may take leave intermittently, meaning that the 12 week block does not have to be taken consecutively. However, intermittent leave, when used for birth and care for adoption or foster care must be approved by the employer. When the leave is used to care for a seriously ill family member, the intermittent leave may be taken only when medically necessary.
When the employee returns from FMLA leave, the employer must restore the employee to the original job or equivalent job with equivalent pay. The employer must also maintain health benefits while the employee is on FMLA leave.
Employees must meet certain requirements before they are eligible for benefits afforded by the FMLA. Employees must work for a covered employer for a total of 12 months and have worked for at least 1,250 hours in the 12-month period. The employee must provide 30-days advanced notice for the need to take FMLA leave. Employers may also require employees to provide medical documentation to validate the medical condition claimed. Employers (at their expense) may require employees to seek a second or third opinion. Employees also must furnish their employers with status reports and intent to return to work.
The provisions of the FMLA are enforced by the United States Secretary of Labor's Wage and Hour Division. Thus far, there have not been any challenges to the provisions of the FMLA heard before the United States Supreme Court.
Although employees of state and local employers cannot sue their employers for discriminatory practices involving provisions of some Federal laws (most notably the ADEA and ADA), below is a list of the applicable state laws prohibiting employment discrimination.
State Laws and Statutes Prohibiting Employment Discrimination
ALABAMA: Title 25 of the Code of Alabama 1975
ALASKA: Title 23 of Alaska Statutes
ARIZONA: Title 23 of Arizona Revised Statutes
ARKANSAS: Title 11 of Arkansas Department of Labor Laws and Regulations
CALIFORNIA: Chapter 98.75 of the California Labor Code
COLORADO: Title 8 of Colorado Department of Labor and Employment
CONNECTICUT: Title 31 of the Connecticut Department of Labor
DELAWARE: Title 19 of the Delaware Code
DISTRICT of COLUMBIA: Title 36 of the District of Columbia Code
FLORIDA: Title 31 of the Florida Statutes
GEORGIA: Title 34 the Georgia Code
HAWAII: Title 21 of the Hawaii Revised Statutes
IDAHO: Title 44 of the Idaho Statutes
ILLINOIS: Chapter 820 of the Illinois State Employment Law
INDIANA: Title 22 of the Indiana Code
IOWA: Title 3 of the Code of Iowa
KANSAS: Chapter 44 of the Kansas Statutes
KENTUCKY: Title XXVII of the Kentucky Revised Statutes
LOUISIANA: Title 23 of the Louisiana Revised Statutes
MAINE: Title 26 of the Maine Revised Statutes
MARYLAND: Labor and Employment Article of the Maryland State Statutes
MASSACHUSETTS: Part I, Title XXI of the General Laws of Massachusetts
MICHIGAN: Chapter 408 of the Michigan Compiled Laws
MINNESOTA: Chapter 175 through 186 of the Minnesota Statutes
MISSISSIPPI: Title 71 of the Mississippi Code
MISSOURI: Title XVIII of the Missouri Revised Statutes
MONTANA: Title 39 of the Montana Code
NEBRASKA: Chapter 48 of the Nebraska Statutes
NEVADA: Title 53 of the Nevada Revised Statutes
NEW HAMPSHIRE: Section 275 of New Hampshire Revised Statutes
NEW JERSEY: Title 34 of New Jersey Statutes Annotated
NEW MEXICO: Chapter 50 of New Mexico Statutes Annotated
NEW YORK: Executive Law Article 15, New York State HUMAN RIGHTS Law
NORTH CAROLINA: Chapter 95-240 through Chapter 95-245 of the North Carolina General Statutes
NORTH DAKOTA: Chapter 14 of the North Dakota Century Code
OHIO: Section 4112.02 of the Ohio Revised Code
OKLAHOMA: Title 40 of the Oklahoma Statutes
OREGON: Title 51, Chapters 651-663 of the Oregon Revised Statutes
PENNSYLVANIA: Title 43 of the Pennsylvania Consolidated Statutes
RHODE ISLAND: Title 28 of the Rhode Island General Laws
SOUTH CAROLINA: Title 41 of the South Carolina Code of Laws
SOUTH DAKOTA: Title 60 of the South Dakota Codified Laws
TENNESSEE: Title 50 of the Tennessee Code
TEXAS: Texas Labor Code
UTAH: Title 34 of the Utah Code
VERMONT: Title 21 of the Vermont Statutes
VIRGINIA: Title 40.1 of the Code of Virginia
WASHINGTON: Title 49 of the Revised Code of Washington
WEST VIRGINIA: Chapter 21 of the West Virginia Code
WISCONSIN: Chapter 111 of the Wisconsin Statutes
WYOMING: Title 27 of the Wyoming Statutes
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"United States Equal Employment Opportunity Commission: An Overview." United States Equal Employment Opportunity Commission. Available at .
Drug Testing (Encyclopedia of Everyday Law)
Testing employees or job applicants for drug or alcohol use invokes a controversial area of policy and law that is still establishing its parameters. No one denies that employee drug and alcohol abuse costs employers billions of dollars each year in decreased productivity, increased liability exposure, and higher WORKERS' COMPENSATION insurance premiums. Employers clearly have a substantial and vested interest in not only providing, but also ensuring, a drug-free workplace, for the safety and welfare of both employees and employers.
Controversy enters the picture when employers either ineptly or aggressively impose drug testing in a manner that may violate personal or constitutional rights, such as privacy rights or protections against unlawful searches and seizures. While drug testing is permitted in most states, it is not always mandated. For those employers who implement drug testing programs, it is imperative that the programs follow state and federal guidelines in order to ensure protection of employee rights.
The drug-testing movement began in 1986, when former President Ronald Reagan signed Executive Order 12564, requiring all federal employees to refrain from using illegal drugs, on or off-duty, as a condition of federal employment. Two years later, Congress passed the Drug-Free Workplace Act of 1988. That, in turn, spawned the creation of federal Mandatory Guidelines for Federal Workplace Drug Testing Programs (Section 503 of PUBLIC LAW 100-71). The mandatory guidelines apply to executive agencies of the federal government, the uniformed services (excepting certain members of the armed forces), and contractors or service providers under contract with the federal government (excepting the postal service and employing units in the judicial and legislative branches).
Although the Act only applies to federal employees, many state and local governments followed suit and adopted similar programs under state laws and drug-free workplace programs.
The U.S. Constitution does not prohibit drug testing of employees. However, in the U.S. Supreme Court case of Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the high court ruled that requiring employees to produce urine samples constituted a "search" within the meaning of the Fourth Amendment to the U.S. Constitution. Therefore, all such testing must meet the "reasonableness" requirement of the Fourth Amendment (which protects citizens against "unreasonable" searches and seizures). The Court also ruled that positive test results could not be used in subsequent criminal prosecutions without the employee's consent.
The other major constitutional issue in employee drug testing involves the Fifth Amendment (made applicable to the states by the Fourteenth Amendment), which prohibits denial of life, liberty, or property without "due process of law." Since the majority of private-sector employees in the United States (excepting mostly union employees) are considered "at-will employees," an employer need not articulate a reason for termination of employment. However, under certain circumstances, the denial of employment or the denial of continued employment based on drug test results may invoke "due process" considerations, such as the validity of the test results, the employee's right to respond, or any required notice to an employee.
Finally, under the same constitutional provisions, persons have a fundamental right to privacy of their person and property. Drug testing, although in itself deemed legal, may be subject to constitutional challenge if testing results are indiscriminately divulged, if procedures for obtaining personal specimens do not respect the privacy rights of the person, or if testing is unnecessarily or excessively imposed.
Under state and federal drug-free work place programs include the following:
- Both employees and applicants may be tested.
- Tests may be conducted pre-employment, "upon reasonable suspicion" or "for cause," at random, routinely, and/or post treatment or rehabilitation. Random testing involves unannounced, "suspicionless," and/or non-routine testing that may be indiscriminately applied to some, but not all, employees.
- Basic tests screen for amphetamines (speed, meth, ecstasy, crank, etc.), cannabinoids (marijuana, hashish), cocaine (coke or crack), opiates (heroin, morphine, opium, codeine), or phencyclidine (PCP).
- Extended tests might screen for barbiturates, benzodiazepines, ethanol, hallucinogens, inhalants, or anabolic steroids.
- Tests may involve urine samples, saliva tests, hair samples, sweat patches, breathalyzers, or blood tests.
Mandatory vs. Optional Testing
Under federal law, jobs that involve safety or security functions generally require mandatory drug testing of applicants or employees. The U.S. Department of Transportation adopted revised regulations in August 2001, and other agencies are free to adopt their own internal regulations. Likewise, many states expressly mandate drug testing for similar jobs, for example, jobs in the medical and health related fields, jobs requiring the use of machinery or vehicles, security positions, food handling jobs, or physically demanding jobs such as utilities cable line installation or climbing.
"For Cause" vs. "Random" Testing
Generally, employers are permitted to engage in "for cause" or reasonable-suspicion testing under drug-free workplace programs. State law may limit or prohibit random ("suspicionless") testing of employees unless the job position warrants such an intrusion, such as in "safety sensitive" positions. It is important to remember that private-sector employees do not always enjoy Fourth Amendment rights protecting them against unwarranted or unreasonable searches and seizures (only Fifth amendment rights are extended to the states by the Fourteenth Amendment). Nevertheless, many state constitutions incorporate such rights into their own constitutions, so private sector employees may have the same protections.
Testing Union vs. Non-union Employees
Union employees are protected by the National Labor Relations Act (NLRA), which mandates that private sector employers must bargain collectively over terms and conditions of employment. The NLRA has ruled that drug testing of current employees (but not applicants) is a term or condition of employment. Unionized public sector employers may unilaterally decide to impose drug testing, but must negotiate the procedures (e.g., chain of CUSTODY of samples, notice to employees, confidentiality, consequence of positive results, etc.).
Testing Employees vs. Applicants
Since applicants are generally deemed to have a lesser expectation of privacy than current employees, employers enjoy greater freedom to test applicants, without the same concerns being invoked. However, to contain costs, many employers limit drug testing to those applicant whom they expect to offer a position to, as a condition of hire. While there is no requirement to notify an applicant in advance of a drug test, he or she is free to refuse to submit to it. Refusal to submit, of course, may be grounds to terminate the application process.
Select State Laws
ALABAMA: Alabama's Drug-Free Workplace Program is codified under Ala. Code 25-5-330 et seq. Employers who implement a Drug-Free Workplace Program qualify for a 5 percent discount under the employer's workers' compensation policy.
ALASKA: Alaska's law for drug and alcohol testing of employees is codified at Alaska Stat. 23.10.600 et seq. Employers who comply with the STATUTE are protected from civil liability if they take disciplinary action in GOOD FAITH based on the results of positive tests. However, persons who are injured by a drug or alcohol-impaired employee may not sue the employer for failing to test for drugs or alcohol.
ARIZONA: Ariz. Rev. Stat. Ann. 23-493 et seq. requires employers to adopt a written policy distributed to every employee who is subject to testing or printed as part of a personnel handbook or manual.
ARKANSAS: Arkansas has not enacted any laws regarding the testing of employees for drugs or alcohol. The Arkansas Supreme Court has upheld dismissals of employees who violate an employer's substance abuse policy.
CALIFORNIA: Under California Drug-Free Workplace Act of 1990, Cal. Gov. Code 8350 et seq. (modeled after the federal act), only employers who are awarded contracts or grants from any state agency must certify to the contracting or granting agency that they will provide a drug-free workplace. The contractors must also have a written policy for their employees.
COLORADO: Colorado has not enacted any employment drug or alcohol testing laws. However, the Colorado Supreme Court has upheld testing if the employee's supervisor had a reasonable suspicion that the employee was either using or was under the influence of illegal drugs or alcohol.
CONNECTICUT: Connecticut's law, codified at Conn. Gen. Stat. 31-51 et seq., provides express language protecting the privacy of employee testing. Reasonable suspicion is required before an employer may compel testing, and the employer must show that the use was adversely affecting the employee's job performance.
DELAWARE: No specific laws have been enacted.
FLORIDA: Employee drug testing is voluntary in Florida. However, Fla. Stat. 440.101 et seq. gives incentives to employers that implement drug-free workplace policies. Florida law parallels federal law on the subject. If a governmental unit receives two or more equal bids for services or goods, preference is given to the business that has implemented a drug-free workplace program. The state also gives a worker's compensation premium discount to employers who have implemented a drug-free workplace.
GEORGIA: Georgia has a Drug-free Workplace Act, Ga. Code 50-24-1. All state contractors holding contracts of at least $25,000 must certify that they will provide a drug-free workplace. If a contractor fails to comply with the Act, the state may suspend payments or terminate the contract, so the contractor has an incentive to comply.
IDAHO: The Idaho Private Employer Alcohol and Drug-Free Workplace Act, Idaho Code 72-1701 et seq. provides voluntary drug and alcohol testing guidelines for private employers. If an employer follows the guidelines, employees testing positive for drugs or alcohol will be guilty of misconduct and will be denied unemployment benefits.
ILLINOIS: Illinois has not enacted its own legislation, but it allows private employers to require all employees to conform to the requirements of the federal Drug-free Workplace Act of 1988.
INDIANA: Indiana has not enacted its own legislation, but it allows private employers to require all employees to conform to the requirements of the federal Drug-free Workplace Act of 1988.
IOWA: Under Iowa Code 730.5 et seq., random testing is prohibited. An employer may require preemployment drug tests for peace officers or state correctional officers. An employer may require a specific employee to submit to a drug test only if certain conditions are met, as outlined in the statute.
KANSAS: Kansas has not enacted any workplace drug and alcohol testing laws.
KENTUCKY: Kentucky has no legislation governing employment drug or alcohol testing. However, 702 Ky. Admin. Regs. 5:080 requires all school bus drivers working for any county school district in Kentucky to be drug-tested after an accident resulting in bodily injury or $1,000 worth of property damage.
LOUSIANA: Under Louisiana Rev. Stat. 49:1001 et seq., private employers do not need a written policy to implement a drug testing policy, there need not be reasonable cause to test an employee, and employers need not offer rehabilitation to offenders prior to termination from employment. Same-gender direct observation is permitted in certain circumstances, as where there is reason to believe an employee may alter or substitute urine specimens, etc.
MAINE: Rev. Stat. 26 -681 et seq., protects the privacy rights of individual employees from undue invasion by employers but permits the use of tests when the employer has a compelling reason to administer them.
MARYLAND: Under Md. Code Ann., Health-Gen. 17-214, employers may test their employees for drugs and alcohol for any "legitimate business purpose." However, the statute outlines specific procedural requirements and employee rights in cases where positive results may be used for discipline.
MASSACHUSETTS: Massachusetts has no specific employment drug and alcohol testing laws.
MICHIGAN: No specific law, except that under Mich. Comp. Laws 37.1211(a CIVIL RIGHTS law) established employment policies, programs, procedures or work rules regarding the use of alcoholic liquor or the illegal use of drugs will not be considered to violate an individual's civil rights.
MINNESOTA: Minnesota was one of the first states to enact employment drug and alcohol testing laws in the country, entitled "Authorized Drug and Alcohol Testing" and codified at Minn. Stat. 181.951 et seq. Employers may not conduct drug and alcohol tests without a written drug and alcohol testing policy. Employers may not require employees or job applicants to undergo drug and alcohol testing on an "arbitrary and capricious basis."
MISSISSIPPI: Under Miss. Code Ann. 71-7-1 et seq, all employers who participate in Mississippi's workers' compensation program are required to establish and implement a written drug and alcohol-testing program. That virtually covers all employers.
MISSOURI: Missouri's Drug-Free Public Work Force Act is codified at Mo. Rev. Stat.105.1100 et seq. Only state employees under the EXECUTIVE BRANCH of the Missouri state government are subject to the Act. No provisions mandate compliance from private employers.
MONTANA: Mont. Code Ann. 39-2-205 et seq. ("Montana Workforce Drug and Alcohol Testing Act") requires that any testing of employees by private employers be done in accordance with written policies and procedures established by the employer.
NEBRASKA: Neb. Rev. Stat. 48-1901 et seq. states that no disciplinary or administrative action is allowed unless an initial positive test has been confirmed by gas chromatography/mass spectrometry technique. Attempts to alter the results of a drug or alcohol test are punishable as Class I criminal misdemeanors.
NEVADA: No state law regulates private employer drug or alcohol testing. State employees do not include members of the Nevada National Guard or employees of state penal, mental, and correctional institutions.
NEW HAMPSHIRE: New Hampshire has not enacted any employment drug or alcohol testing laws.
NEW JERSEY: New Jersey has no express law relating to employment drug or alcohol testing.
NEW MEXICO: New Mexico has no statutes regulating the testing of employees for drugs or alcohol.
NEW YORK: New York has no express employment drug or alcohol testing laws. Random drug and alcohol testing of city transit authority bus drivers, police officers and corrections officers has been upheld by courts.
NORTH CAROLINA: North Carolina has a "Controlled Substance EXAMINATION Regulation" codified at Gen. Stat. 95-230 et seq. The law purports to protect individuals from "unreliable and inadequate examinations and screening for controlled substances" and to preserve an individual's dignity to the extent practical, and focuses on chain-of-custody and laboratory testing procedures more than policy guidelines.
NORTH DAKOTA: No statute expressly addresses employment drug and alcohol testing in North Dakota, and there is little, if any, CASE LAW in the area.
OHIO: Ohio does not have any employment drug and alcohol testing laws.
OKLAHOMA: Oklahoma's "Standards for Workplace Drug and Alcohol Testing Act", Okla. Stat. 40-551, applies to both public and private employers. No un-usual provisions.
OREGON: No specific employment drug or alcohol testing laws.
PENNSYLVANIA: Pennsylvania has not enacted any employment drug and alcohol testing laws.
RHODE ISLAND: Rhode Island's "Urine and Blood Tests as a Condition of Employment" provision under R.I. Gen. Laws 28-6.5-1 and 28-6.5-2. prohibits the termination from employment of any person who tests positive for drugs or alcohol. Instead, the employee must be referred to a substance abuse professional for treatment or evaluation.
SOUTH CAROLINA: South Carolina's law, modeled after the federal law, affects those doing business with the State. Codified at S.C. Code Ann. 44107-10 et seq. offers a 5 percent reduction in worker's compensation premiums to participating employers (private employers are not required to implement such programs).
SOUTH DAKOTA: No employment drug and alcohol testing laws.
TENNESSEE: Tenn. Code Ann. 50-9-103 et. seq., gives a discount on workers' compensation premiums and shifts the burden of proof to employees in case of an accident.
TEXAS: Under Tex. Code Ann. 411.091, the "Policy for Elimination of Drugs in the Workplace," employers with fifteen or more employees with workers' compensation insurance coverage are required to adopt a policy of their own choosing but directed at the elimination of drug abuse and its effects in the workplace.
UTAH: Utah Code Ann. 34-38-1 et seq. employers may test employees or prospective employees as a condition of hire or continued employment. In a twist of the law, employers and management must submit to the testing themselves.
VERMONT: Vt. Stat. Ann. 21 § 511 et seq. prohibits random testing for drugs or the drug testing of employees as a condition of continued employment, promotion, or change in employee status.
VIRGINIA: No express law governs employment drug testing.
WASHINGTON: Washington Rev. Code 49.82.010 et seq. models the federal law. Private employers who adopt a drug-free workplace program will receive a 5 percent discount on their workers' compensation premiums.
WEST VIRGINIA: West Virginia has not enacted any employment drug or alcohol testing law, and in a 1990 case, the Supreme Court of West Virginia prohibited random testing by a private employer.
WISCONSIN: No express statute governs employment drug and alcohol testing.
WYOMING: Wyoming has no express statute governs employment drug and alcohol testing.
"Drug Testing in the Workplace." Available at http://jobsearchtech.about.com/library/weekly/aa090301-2.htm
"Drug Testing State Laws." March 2002. http://www.urineluck.com.
"Mandatory Guidelines for Federal Workplace Drug Testing Programs." Available at .
"Small Business Workplace Kit: Alcohol and Drug Testing." U.S. Dept. of Labor. Available at .
Treasury Employees v. Von Raab, 489 U.S. 656 (1989) Available at http://caselaw.lp.findlaw.com.
"Your Questions Answered-Drug Testing." Stanton, Hughes. March 2002. Available at http://www.stantonhughes.com/qa0203.html.
Employee's Rights/Eeoc (Encyclopedia of Everyday Law)
Claims of employee rights and DISCRIMINATION have become almost commonplace over the course of the last 30 years. Since the passage of the main civil right legislation in the 1960she Equal Pay Act, the CIVIL RIGHTS Act of 1964, and the Age Discrimination Employment Act (ADEA)ederal law has explicitly protected the rights of employees. The 1973 Rehabilitation Act and the 1990 Americans with Disabilities Act (ADA) added the disabled to the list of protected employees, and the 1991 Civil Rights Act expanded relief possibilities for all groups.
During the course of the last 40 years of employee rights law, the federal Equal Employment Opportunity Commission has come to play a primary role in the enforcement of federal civil rights statutes. The EEOC was created in 1964, as part of Title VII of the Civil Rights Act. Virtually all discrimination complaints against employers at the federal level must go through the EEOC first before a lawsuit may be filed. Thus the agency is of paramount importance to both employers and employees.
Considering this, it is important for both employees and employers to know how the EEOC works, what kind of complaints the commission handles, and what is needed to bring a complaint before the EEOC.
At COMMON LAW, employee-employer relationships that were not controlled by a formal contract were considered at-will relationships. Employees could be dismissed for any reason at all, whether the reason was discriminatory or not.
Today, the at-will relationship between employee and employer is still a common one with employees not working under a union contract or some other form of agreement. However, the at-will term has become somewhat misleading, since a host of federal laws and rules now govern the employee-employer relationship. Perhaps the most important in terms of protecting employees against arbitrary DISMISSAL by employers are the civil rights laws.
When arguably the most important of these lawshe Civil Rights Act of 1964was drawn up, many advocates of the law felt a gatekeeper was needed to prevent the courts from being clogged with employee lawsuits under the new law. This led to the creation of the EEOC, which was given primary responsibility for the enforcement of these laws. Subsequently, the EEOC was entrusted with the enforcement of practically all civil rights laws, with the exception of federal employees, who are protected under the 1978 Civil Service Reform Act. Enforcement of that act is entrusted with the Office of Special COUNSEL and the Merit Systems Protection Board.
The size of the employer determines if it falls under EEOC authority. Employers of 15 or more employees are covered under both Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA). Employers of 20 or more are covered under the Age Discrimination Employment Act (ADEA), and the Equal Pay Act has no limit in terms of the size of employers it covers.
Types of Employment Discrimination
There are many types of discrimination covered by the civil rights laws the EEOC is charged to enforce. Some of them include:
- Discrimination on the basis of race or color: Title VII of the Civil Rights Act prohibits race discrimination.
- Discrimination on the basis of sex: Title VII of the Civil Rights Act prohibits discrimination on the basis of sex. Title VII prohibitions against SEX DISCRIMINATION also prohibit SEXUAL HARASSMENT (practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment). In addition, the federal Equal Pay Act, which the EEOC also enforces, prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
- Discrimination on the basis of pregnancy: Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
- Discrimination on the basis of national origin: Title VII of the Civil Right Act makes it illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. For example, a rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business.
- Discrimination on the basis of religion: Title VII prohibits religious discrimination. An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.
- Discrimination on the basis of age: The ADEA prohibits any discrimination in regards to age. Among the acts covered by the ADEA are: statements or specifications in job notices or advertisements of age preference and limitations; discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and denial of benefits to older employees.
- Discrimination on the basis of DISABILITY: The ADA prohibits discrimination on the basis of disability in all employment practices. An individual with a disability under the ADA is a person who 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. The employer is required to make reasonable accommodations for such an employee, unless the employer can prove such accommodation would impose undue hardship on the operation of the employers business. Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modifying of work schedules; providing additional unpaid leave; reassigning to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. An employer may not ask job applicants about the existence, nature, or severity of a disability, though applicants may be asked about their ability to perform job functions.
Under all the major civil rights laws, it is illegal to discriminate in any aspects of employment. The EEOC lists the following as examples of functions in which it is illegal to discriminate:
- Hiring and firing
- Compensation, assignment, or classification of employees
- Transfer, promotion, layoff, or recall
- Job advertisements
- Use of company facilities
- Training and apprenticeship programs
- Fringe benefits
- Pay, retirement plans, and disability leave
- Other terms and conditions of employment
- Harassment on the basis of race, color, religion, sex, national origin, disability, or age
- Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities
- Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group
All employers within the United States are required to post notices advising workers of their rights under the EEOC, and the notices are required to be accessible and posted so all workers can see them.
Once employees determine they have been the victim of illegal discrimination by the employer, they must go about filing a complaint with the EEOC in order to state a federal civil rights claim. The EEOC then follows procedures to make a determination about the validity of the claim and what actions it should take to resolve the claim.
Make-Up of the EEOC
The EEOC is composed of five commissioners and a general counsel appointed by the president and confirmed by the Senate. Commissioners are appointed for five-year staggered terms; the general counsel's term is four years. The president designates a chair and a vice-chair. The chair is the chief executive officer of the commission. The commission has authority to establish equal employment policy and to approve LITIGATION. The general counsel is responsible for conducting litigation. The EEOC also has 50 field offices located across the nation.
Filing a Charge
A discrimination complaint with the EEOC should be filed with the nearest EEOC office to the complainant. The EEOC lists its offices on its website at . Complaints may be filed by mail, telephone, or in person. A toll free number, 800-699-4000, may be used to find this information.
Federal civil rights laws contain time frames when discrimination complaints must be filed. To preserve the ability of the EEOC to act, these time frames must be met. If they are not met, the complainant will lose any right to a federal civil rights claim. Under Title VII, the ADA, or ADEA, a complaint must be filed with the EEOC within 180 days of the alleged discriminatory act.
In states or localities where there is an antidiscrimination law and an agency authorized to grant or seek relief, a complaint must be presented to that state or local agency. In such jurisdictions, the complainants may file charges with EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier.
For a complaint under the Equal Pay Act, individuals are not required to file a complaint with the EEOC before filing a private lawsuit, so the time limits do not apply. Individuals with an Equal Pay Act claim must decide whether they would be better off filing a complaint with the EEOC or going directly to court.
After the complaint is filed with the EEOC, the employer is notified of the complaint. At that point, the EEOC can handle the complaint in a number of ways. According to the EEOC, the following are ways the complaint can be disposed of:
- A complaint may be assigned for priority investigation if the initial facts appear to support a violation of law. When the EVIDENCE is less strong, the complaint may be assigned for follow up investigation to determine whether it is likely that a violation has occurred.
- The EEOC can seek to settle a complaint at any stage of the investigation if the charging party and the employer express an interest in doing so. If SETTLEMENT efforts are not successful, the investigation continues.
- In investigating a complaint, the EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, the EEOC will discuss the evidence with the charging party or employer, as appropriate.
- The complaint may be selected for the EEOC's MEDIATION program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the complaint is returned for investigation.
- A complaint may be dismissed at any point if, in the agency's best judgment, further investigation will not establish a violation of the law. A complaint may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a complaint is dismissed, a notice is issued in accordance with the law which gives the charging party 90 days in which to file a lawsuit on his or her own behalf. This notice is known as a "right to sue." Under Title VII and the ADA, a charging party also can request a notice of right to sue from the EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. Under the ADEA, a suit may be filed at any time 60 days after filing a charge with the EEOC and no right to sue notice is required.
Once the EEOC investigation is finished, the commission makes a determination over how to proceed. The EEOC lists the following as actions it can take to resolve a discrimination complaint:
- If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
- If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. The EEOC will then attempt CONCILIATION with the employer to develop a remedy for the discrimination.
- If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored
If the EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If the EEOC decides not to sue, it will issue a notice closing the case and issue a right to sue notice giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
The EEOC is empowered to file a judicial action against non-governmental employers. The U. S. attorney general is authorized to sue state and local governments. The federal government cannot be sued. The EEOC actually files suit on only a small number of cases.
Enforcement and Relief
Relief the EEOC may seek against discrimination include: back pay, hiring, promotion, reinstatement, front pay, reasonable accommodation, or other actions that will make an individual "whole" (in the condition he or she would have been but for the discrimination). Relief also may include payment of attorneys' fees, expert witness fees, and court costs. In addition, and employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws the EEOC enforces and their right to be free from retaliation.
Under most EEOC-enforced laws, compensatory and PUNITIVE DAMAGES also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for MENTAL ANGUISH and inconvenience. Punitive damages also may be available if an employer acted with MALICE or reckless indifference. Punitive damages are not available against state or local governments.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.
"Facts About Mediation" The Equal Employment Opportunity Commission, 2001. Available at http://www.eeoc.gov.
Federal Law of Employment Discrimination. Mack Player, Mack, St. Paul, West Group, 1989.
"Federal Laws Prohibiting Job Discrimination Question and Answers," The Equal Employment Opportunity Commission, 2001. Available at http://www.eeoc.gov., The Equal Employment Opportunity Commission, 2001.
"Filing A Charge," The Equal Employment Opportunity Commission, 2001. Available at http://www.eeoc.gov., The Equal Employment Opportunity Commission, 2001.
U. S. Department of Justice, Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530 USA Phone: (202) 514-4609
Fax: (202) 514-0293
Primary Contact: Ralph Boyd, Assistant Attorney General
U. S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210 USA
Phone: (866) 4-USA-DOL
Primary Contact: Elaine Chao, Secretary of Labor
U. S. Equal Employment Opportunity Commission (EEOC)
1801 L Street, NW
Washington, DC 20507 USA
Phone: (202) 663-4900
Primary Contact: Cari M. Dominguez, Chair
Family And Medical Leave Act (FMLA) (Encyclopedia of Everyday Law)
The Family and Medical Leave Act (FMLA) was signed into law in 1993 as a means of addressing the changing needs of workers' family responsibilities. Under the law, anyone who works in a company that employs 50 or more people can take up to 12 weeks of medical leave per year without threat of losing his or her job. FMLA covers both pregnancy and ADOPTION, as well as caring for a seriously ill relative. It also covers the individual employee's own serious illnesses.
Many companies already had leave policies in place before the enactment of FMLA. Some companies, not surprisingly, are more generous than others. The need for federally mandated protection stems from several issues. First is the fact that families are changing. The twoarent onencome family, once the norm in American society, is less and less common. Twoncome families and singlearent families have to deal with pregnancy, childhood illness, and a host of other situations that may require time away from work. In addition, a growing number of people are serving as caregivers for elderly parents. Whether in their home or the parent's home, this service can turn into a significant expenditure of time.
Second is the changing structure of the workplace. With medical costs skyrocketing and wide economic shifts, some companies may be inclined to cut back on the amount of leave they want their employees to take. Or they may wish to withhold payment of medical benefits while an employee is on leave, even if that leave is related to a medical condition. Some companies may allow employees to take several weeks of medical leave and then not reinstate them. FMLA offers protection to employees so that they can take the time off they need without fear of recriminations.
The Basics of FMLA
Simply stated, FMLA guarantees employees that they can take up to 12 weeks of either family leave (to handle adoption proceedings, for example) or medical leave (to take care of a recuperating parent) per year. Anyone who has worked for an employer for at least 1,250 hours and 12 months is entitled to leave under FMLA. Employees can take both family and medical leave during the year, but the total amount of time cannot exceed 12 weeks. If an employee requesting leave under FMLA has accrued sick time and vacation time, the employer can require that this time be included in the 12eek leave. In other words, if an employee has two weeks of paid vacation time accrued, he or she cannot automatically take those two weeks and an additional 12 weeks; the employer can be generous and allow that but is not obligated to do so.
Under FMLA, the employee taking leave is entitled to reinstatement upon returning to work. If the employee's old job is not available, he or she is entitled to another job at a similar level of responsibility. A company cannot punish an employee who takes FMLA leave by firing or demoting that person simply for taking the time off.
It is important to understand that FMLA is not an extended personal leave program Employers have a right to know the specific reasons the employee is applying for leave under FMLA. If an employee requests leave because of illness, the employer has a right to ask for proof from a physician. Moreover, the employer also has a right to ask for proof from a physician that an employee is able to return to work.
Having or Adopting a Baby
Anyone who is pregnant or who is adopting a baby (or taking in a foster child) can take FMLA leave. A woman who takes her leave for pregnancy can use her accrued sick time as part of her leave; those who are adopting cannot. FMLA leave for the arrival of a baby is not limited to women. Men who want to take time off after a child is born and single men who decide to adopt a child are entitled to the same 12 weeks of FMLA leave that women can get. Moreover, a married couple can take 12 weeks apiece, so that, for example, a new baby could have at least one parent home for 24 weeks. If the couple works for the same company, however, they are only entitled to a total of 12 weeks between them.
Family Members and Serious Illness
FMLA allows employees to take up to 12 weeks off to take care of an immediate family member who is seriously ill. A child who is recuperating from major surgery, a parent suffering from Alzheimer's disease, or a spouse recovering from an auto accident are examples. The stipulation is that the person being cared for must be immediate family; an in-law or a favorite second cousin would not count. Serious illness can include stroke and heart attack, complications from pregnancy, pneumonia, sever arthritis, and epilepsy. Clearly not every condition will require the full 12eek leave to be used up at one time. But FMLA allows employees to break up their leave time, so long as it does not exceed 12 weeks per year.
Employees who suffer serious illness are also covered under FMLA. If, for example, a worker needs to stay home for six weeks to recuperate from back surgery but the worker only has two weeks sick leave, that worker is entitled to FMLA leave. The employer has the right to require the employee to take accrued paid time as part of the 12eek leave.
FMLA, ADA, and Title VII
With the existence of the Americans with Disabilities Act (ADA) and Title VII of the CIVIL RIGHTS Act (both of which predate FMLA), why bother with a family medical leave act at all? While there is some overlap between the three, each plays a different role.
ADA focuses on people who have disabilities that affect their ability to perform activities that are regarded as part of normal everyday life. A person who cannot walk or see is covered under ADA. Title VII prohibits DISCRIMINATION on the basis or race, color, sex, religion, or national origin. A company cannot provide leave to one group and not another.
Why FMLA? The most important difference between it and ADA and Title VII is probably that it has a more direct effect on an employee's family. Neither ADA nor Title VII provide guarantees to individuals who wish to take leave to look after a sick child or spouse. Nor do they provide for full medical insurance coverage the way FMLA does. Under ADA, an employee who chooses to work part-time because of a DISABILITY is only entitled to whatever insurance is provided to other part-timers. Under Title VII, an employer cannot provide one employee with insurance and another with none solely on the basis of race, color, religion, sex, or nationality. But there is no provision guaranteeing insurance.
Under FMLA, employers must maintain the employee's insurance at its current level (that includes covering a spouse and children who are on the plan), so long as the employee keeps making his or her regular contribution (if any) into the policy.
The Employer's Perspective
It may seem as though FMLA and similar laws are all designed to protect employees and not those who hire them. While protection of workers' rights is clearly important, no law is designed with the intention of crushing businesses under a mountain of untenable regulations.
It is important to understand that laws such as FMLA serve as a framework for minimum acceptable standards. Many companies offer more than 12 weeks leave to employees, and a number also offer at least partial paid leave. Interestingly, a survey of 1,000 employers conducted by the research firm Hewitt Associates just at the time FMLA was becoming law in 1993 indicated that some 63 percent already had some sort of family leave program in place, and 56 percent had medical leave programs. To be sure, many of these companies were not offering benefits at the same level guaranteed under FMLA. But they were not ignoring employee needs, either.
During the economic boom of the 1990s, many companies found that they had to offer more and better benefits to attract employees from a shrinking applicant pool. In leaner economic times that line of reasoning does shift, but top companies have long known that one of the best ways to attract the best employees is to give them good benefits.
Sometimes it is difficult to get employees to take their full benefits. For example, even though FMLA allows men to take time off during and after the arrival of a baby, far fewer men take time off than women. Part of the reason is that in many companies there is still a perception that someone who takes time off to raise a child is not committed to his or her career. For men this is still a more difficult hurdle, since even in the most enlightened companies there is still the perception that men should exhibit an almost over-riding commitment to their job. One thing that laws such as FMLA may ultimately do is help break down stereotypes like these, so that more people can benefit.
Laws such as FMLA, ADA, and Title VII are geared toward protecting employees, but that does not mean employers must bankrupt themselves to accommodate only a few employees who choose to take advantage of such protections. For example, under FMLA an employer has the right to know precisely what the leave is intended for. Lack of protection would give companies the right to terminate employees rather than give them even unpaid leave. But protection without requirements and guidelines could be misused by unscrupulous employees.
In the years since FMLA was enacted, a number of business groups have asked for adjustments and clarifications. Although there is much support for the spirit of FMLA, many say that as a practical matter there is too much room for abuse. Reports of people taking FMLA time off for the flu or a simple cold, or taking their FMLA leave time in small increments (socalled "intermittent leave" that allows people to take an hour at a time off, or even less, under the current regulations) only fuel the complaints of skeptics.
Ideally, the company and the employee should work together to find arrangements that are suitable to both. FMLA allows such flexibility. For example, an employee may choose to take FMLA-approved leave intermittently (perhaps a few days or a week at a time) during the year instead of in one 12-week chunk. Or the employee may be able to work on a part-time schedule.
Federal vs. State Regulations
Under the terms of FMLA, state regulations that are more generous than FMLA accommodations will take precedence over FMLA regulations. Where this is not the case, FMLA regulations will supersede the state rules. Each state has its own department of labor and its own set of guidelines for employee rights. Those who wish to know about the rules in a specific state should contact that state's labor department to find out precisely how its regulations work and how they mesh with FMLA and other federal laws.
Currently, 18 states, as well as the District of Columbia and Puerto Rico, have laws that are more comprehensive than FMLA. For example, in Vermont, Oregon, and the District of Columbia, the 50-employee minimum is significantly lower. In Hawaii and Montana, companies with one or more employees must offer leave for maternity disability. An employee can take leave to care for an in-law in the District of Columbia, Hawaii, Oregon, and Vermont. In Massachusetts, employees receive 24 hours leave per year to accompany a child or relative to routine medical or dental appointments. Louisiana and Tennessee provide four months leave for maternity disability.
Proposed Changes to FMLA
In 2001, two amendments to FMLA with very different outcomes were introduced in Congress. The Right Start Act is designed to expand FMLA by including employers with 25 or more employees instead of the current 50. It would also offer employees 24 extra hours of leave per year to visit their children's school (for parent-teacher conferences or literacy programs, for example). A quite different measure, the Family Leave Clarification Act, would toughen the rules on what constitutes a "serious illness" and set the minimum increment of leave time to one half-day. Both of these bills were pending action in early 2002, and each has strong supporters and opponents.
Employers and employees should work together as much as possible, but they also need to know enough of the regulations to avoid making an inadvertent mistake. Organizations such as the U. S. Department of Labor, the Equal Employment Opportunity Commission, and the Society for Human Resource management can provide useful information. Employers that seek legal COUNSEL would do well to remember that for a subject this complex it makes sense to look for attorneys or firms who specialize in employment law.
Family and Medical Leave in a Nutshell. Decker, Kurt H., West Group, 2000.
Paid Family Leave: At What Cost? Hattiangadi, Anita U., Employment Policy Foundation, 2000.
Taking Time: Parental Leave Policy and Corporate Culture. Fried, Mindy, Temple University Press, 1998.
Society for Human Resource Management (SHRM)
1800 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 548-3440
Fax: (703) 535-6490
Primary Contact: Helen G. Drinan, President and Chief Executive Officer
U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division
200 Constitution Avenue NW
Washington, DC 20210 USA
Phone: (866) 487-9243
Primary Contact: Tammy D. McCutchen, Administrator
Work in America Institute
700 White Plains Road
Scarsdale, NY 10583 USA
Phone: (914) 472-9600
Fax: (914) 472-9606
Primary Contact: Jerome M. Rosow, Chairman and Chief Executive Officer
Independent Contractors/Freelancers (Encyclopedia of Everyday Law)
The terms independent contractor and free-lancer are often used interchangeably. While every freelancer is an INDEPENDENT CONTRACTOR, not every independent contractor can be considered a free-lancer. The term "free lance" actually first appeared in Sir Walter Scott's novel Ivanhoe in 1819, to denote a mercenary knight (in medieval times they were called "free companions"). Freelancers of today are not mercenaries in the soldier-of-fortune sense; they may be writers, artists, computer experts, or business consultants. Independent contractors are people who are not considered employees. That definition includes freelancers, but it also includes anyone in private or sole business practice such as lawyers, plumbers, electricians, and shopkeepers.
From a legal standpoint, whether an individual is an independent contractor or an employee has tax ramifications. The Internal Revenue Service has guidelines that are intended to clarify the difference, partly to avoid confusion and partly to guard against illegal practices such as listing employees as independents.
Who Are Independent Contractors and Freelancers?
There are a number of reasons why people choose to work as freelancers or independent contractors. Most sole proprietors will say that they prefer the freedom of working for themselves; they dis-like the burdens of office politics, of attending meetings, of fighting for raises or promotions. In some fields, such as the publishing and computer industries, people become freelancers after they are laid off from their jobs. People who have a special professional skill may choose to work independently and sign on with many clients rather than one company because it provides more diverse (and often, more lucrative) opportunities.
Companies, likewise, have many reasons for working with independent contractors. Independents can be brought in for short-term specialized projects. Doing so eliminates the need to train employees to do work they may never need to do again, and it also eliminates the need to add staffers whose skills and talents will be underused. Almost always it will cost less to bring in an independent contractor because employees receive benefits as well as salary. Human resource professionals estimate that benefits (health insurance, PENSION, paid vacation, etc.) can add as much as 30 percent on top of an employee's base salary. In a small office, space considerations may be an issue; there may not be enough office space to accommodate extra employees.
The advent of electronic communication has made independent contracting much easier for both clients and contractors. Given access to email, a publisher who employs freelance writers, editors, and designers can work with people who live anywhere in the world. The freelancers do the work and send files via email to the client. It is not uncommon for companies to work with freelancers without ever meeting them or even speaking over the telephone.
For contractors such as lawyers or electricians, of course, this level of freedom is impossible. Still, such contractors can be brought on-site on an as-needed basis. A large company may have on-site maintenance staff or legal COUNSEL, but for a smaller company there is no reason to do so if independent contractors are readily available and able to provide good service.
While there are clearly many benefits to both companies and contractors, hiring independents requires responsible behavior on both sides. Clients have an obligation to pay for the work contracted in a timely fashion and to provide input to make sure the contractor understands what is needed. Contractors have an obligation to do the work as agreed upon, also in a timely fashion, and to take responsibility for work done improperly.
Types of Workers
In general, according to the IRS, if a company has the right to control the result of an individual's efforts but not the means by which he or she achieves those efforts, the individual is an independent contractor.
Under the rules of COMMON LAW, the individual who controls not only the results but the means by which a person completes a project is the employee. The IRS recognizes the substance of the working relationship when it makes its determination. For example, a part-time worker can be considered an employee if other "employee" conditions are met. Temporary workers are usually considered employees of the agency that assigns them; many temp agencies consequently withhold employee taxes. Some temp agencies even offer their workers benefits such as pension plans and paid vacations and holidays.
So-called statutory nonemployees are also considered independent contractors by the IRS. STATUTORY nonemployees include direct sellers, who sell from their homes or door-to-door (Fuller Brush or Tupperware products, for example), as well as licensed real estate agents. The services of statutory nonemployees have to be spelled out in a contract that states plainly that they will not be treated as employees for tax purposes.
How to Classify Workers
A company that misclassifies an employee as an independent contractor can face stiff fines and penalties from the IRS. A typical way in which companies are found to have misclassified an employee occurs when a contractor is laid off and subsequently tries to file for unemployment. If circumstances show that the person was an employee and not an independent contractor, the company will have to pay the money it should have been contributing on his or her behalf, as well as the IRS penalties and fines.
To be sure, some companies may misclassify employees through an honest misunderstanding. Not all companies, however, are quite that blameless. In the past, some companies have tried to get around making the required Social Security, MEDICARE, and unemployment contributions by laying off employees and hiring them back as independent contractors. Sometimes an employee will be laid off from a company, or quit of his or her own volition, and agree to do freelance projects for the company. If that arrangement falls within the independent contractor guidelines as outlined by the IRS, there is no problem. But in the case of a company that hires back several people and has them working on-site for regular 40-hour work weeks, it is clear that the rules are being broken.
Unfortunately, even a company that inadvertently misclassifies an employee is liable for fines and penalties. Thus, it is crucial that both companies and contractors must be clear on the rules and requirements.
The IRS offers examples in its literature as a means of clarifying who is an employee and who is an independent contractor. In one example, a man hired to supervise the remodeling of a house is considered an employee. The homeowner pays for liability and WORKERS' COMPENSATION insurance for the man, who is not free to work on other projects while working in this particular house. Moreover, he is paid an hourly wage and will assume no contractual liability if he fails to complete the job. In another example, a woman who works as an electrician is an independent contractor. She is under contract to complete a project for a flat fee rather than an hourly wage, and she is free to work on other projects with other clients while working on her current job, as time permits.
In another case, a computer programmer is laid off when his company downsizes, but the company takes him on as an independent contractor. The company provides a contract that specifies clearly the work relationship, and the programmer does most of his work from his home. He is neither expected nor allowed to attend company meetings, and the company provides him only with product specifications, not instructions on how to do his work. The IRS does consider this worker an independent contractor. If he were required to attend meetings and be on-site during regular business hours, the IRS would likely view him as an employee.
The IRS lists three factors that can provide EVIDENCE that a worker is either an employee or an independent contractor:
- Behavioral control refers to the level of control that the company has over the worker's production. Employees are usually required to follow the company's instructions about where, when, and how to do the work in question, including what supplies to use, where to get those supplies, and with whom to work. Employees often receive specialized training to do their work; independent contractors usually use their own methods.
- Financial control covers the company's financial contribution to the worker, including salary and expenses. For example, employees are generally guaranteed a regular wage usually based on an hourly or weekly rate. While some independents are paid hourly rates, often they are paid flat fees for their work. Employees are usually given the supplies and equipment they need to do their work; independent contractors supply their own equipment, which can be anything from a word processor to a fully equipped office. Independent contractors also tend to have unreimbursed expenses related to their business (such as rental of an office or a LEASE on equipment).
- Type of relationship is often spelled out in a written contract, but there are other factors. If a company pays for a worker's health insurance or provides vacation or sick pay, the worker is an employee. Employees also work under the expectation that the relationship with the employer will be indefinite; independent contractors usually work on a per-project basis or may work on a particular ongoing project. If that project involves services that represent a key aspect of the company's regular business (a lawyer hired to do work for a law firm, for example), that usually indicates an employer-employee relationship.
The IRS has developed a set of 20 factors to help companies determine whether a worker is an independent contractor or an employee. Some of these factors are covered above. Among the others are the following:
- If the worker works on-site (or at a site designated by the employer), then the worker is likely an employee.
- If the worker hires his or her own assistants, then the worker is likely an independent contractor.
- If the worker can make a profit or loss, then the worker is an independent contractor.
- If the worker is required to do the job in a set order or sequence, then he or she is likely an employee. Independents usually have more leeway.
- If the worker can be fired at will, then the worker is an employee Independents cannot be fired if they produce work according to the contract specifications.
The factors are intended to serve only as a guideline. Different professions may have different requirements. A computer consultant, for example, may have to work on-site rather than from a home office. But if the consultant has several clients and works on a per-project basis for a flat fee, he or she is an independent contractor. Many freelance writers and editors are paid hourly rates for the work they do. This is common in the publishing industry, even though in many others it might signal that the workers are employees. An employer generally provides guidance and instruction for employees. That does not mean that all independent contractors are expected to approach each new project blindly. They can receive guidance and instruction, too. The difference is that employee instructions are usually more comprehensive and encompass a long-term relationship.
Where To Get Help
For people who are independent contractors or freelancers, of for those who wish to become self-employed, there are a variety of resources available. The IRS provides a number of publications about self-employment regulations, many of which can be downloaded from its website (http://www.irs.gov). Likewise, the U. S. Small Business Administration (SBA) offers a number of resources, including information on how to obtain small business loans. The SBA has a website (http:www.sba.gov) as well as regional offices in all 50 states.
Organizations such as the National Association for the Self-Employed (NASE) act as advocates for their members and offer such benefits as health insurance at group rates. These groups can answer many questions self-employed professionals have about how to run, grow, and maintain a business. Individual professions almost always have some sort of professional association that caters to the needs of their self-employed members. Professions in which self-employment is the rule rather than the exception often have their own organizations. Freelance writers and editors, for example, can join groups such as the National Writers Union (NWU) and the Editorial Freelancers Association (EFA). Groups like these address the issues of self-employment as they relate directly to members' professions, and they provide a forum for networking with others in the same field.
Companies that wish to hire independent contractors can make use of many of the same resources. The IRS, for example, can help a business owner determine whether a freelancer is really a freelancer or might be classified as an employee. Professional associations for the self-employed often have job referral or listing services that companies can use when they need to hire.
Crossing the Bridge to Self-Employment: A Federal Microenterprise Resource Guide. U. S. Department of Labor, 2001.
Successful Freelancing: How to Enjoy Being Your Own Boss. Smith, Carolyn D., Aletheia Publications, 2000.
Working Solo Sourcebook: Essential Resources for Independent Entrepreneurs. Lonier, Terri, Wiley, 1998.
Internal Revenue Service, Small Business/Self-Employed Operations Division
5000 Ellin Road
New Carrollton, MD 20706 USA
Phone: (202) 622-0600
Fax: (202) 927-1399
Primary Contact: Joseph Kehoe, Commissioner
Small Business Administration (SBA)
409 Third Street SW
Washington, DC 20416 USA
Phone: (800) U-ASK-SBA
Primary Contact: Hector V. Barreto, Administrator
U. S. Department of Labor, Office of Small Business Programs
200 Constitution Avenue NW
Washington, DC 20210 USA
Phone: (202) 693-6460
Fax: (202) 693-6485
Primary Contact: June M. Robinson, Director
Labor Unions/Strikes (Encyclopedia of Everyday Law)
Congress in 1935 passed the National Labor Relations Act (Wagner Act), which was the first of the three federal laws that govern labor relations in the United States. The other two laws, passed in 1947 and 1959, respectively, were the TAFT-HARTLEY ACT and the Landrum-Griffin Act. These statutes guarantee the right of private employees to form and join unions in order to bargain collectively. The vast majority of states have extended union rights to public employees.
Additional federal statutes affect the labor rights of employees. A summary of the major federal labor statutes is as follows:
- The Norris-LaGuardia Anti-Injunction Act, passed in 1932, restricted federal courts from issuing injunctions in labor disputes except in some very limited conditions.
- The Wagner Act in 1935 set forth many of the basic protections offered under the labor statutes, including the restriction against employers interfering with or otherwise restraining the ability of employees to organize to bargain collectively.
- The Brynes Anti-Strikebreaking Act of 1938 restricted the interstate transportation of anyone being used to interfere with peaceful picketing in the process of COLLECTIVE BARGAINING or labor dispute.
- The Hobbs Anti-Racketeering Act of 1946 prevented unions from extorting money from nonunion employees.
- The Taft-Hartley Act in 1947 brought a balance between the rights of employees and employers, which was believed to favor employees and unions over employers. Among the provisions included restrictions on un-fair labor practices by unions.
- The Labor-Management Reporting and Dis-closure of 1959, or Landrum-Griffin Act, established a code of conduct for unions and contained significant amendments to the Taft-Hartley Act. The code of conduct guaranteed certain rights to union members, which was necessary after findings of wrongdoing by unions and their officers. The amendments to the Taft-Hartley Act added some rights to unions and union members but also placed restrictions on union strikes, picketing, and boycotts.
The National Labor Relations Act employs a broad definition of "employee." The term includes anyone currently on a company's payroll and anyone whose employment has ceased due to a current strike or UNFAIR LABOR PRACTICE and who has not obtained regular employment elsewhere. Several classes of workers are specifically exempted from this definition, including the following:
- Agricultural laborers
- Persons employed in a family's or persons' domestic service in the home
- Persons employed by a spouse or parent
- Independent contractors
- Persons employed by businesses subject to the Railway Labor Act
The inclusion of supervisory employees on this list is most significant, because supervisors are not protected if they choose to participate in union activity. In some very limited circumstances, however, a supervisor may be protected from termination, if an employer terminates a supervisor to intimidate other employees from exercising their rights.
The NLRA's definition of "employer" includes any employer that affects interstate commerce. "Affecting interstate commerce" is traditionally a very broad term, and the vast majority of employers fall within this definition. The NLRA excludes several groups of employers from its scope, including the following:
- The Federal Government
- Any wholly owned government corporation or federal reserve bank
- Any state government or political division of a state
- Employers subject to the Railway Labor Act
- Labor organizations, with some exceptions
Much of the NLRA focuses on the relationship between the employees joining together to bargain collectively and the election of the union that acquires the right to represent these employees through a vote of the employees.
Forming and Joining a Union to Bargain Collectively
A series of complex laws governs the labor representation process. Forming and joining a union to bargain collectively must be completed before the collective bargaining process. The process of forming a union involves numerous considerations, such as the types of employees who would constitute an appropriate bargaining unit, and the selection of the appropriate union to represent the employees.
Employees must define an appropriate collective bargaining unit or units to determine how the employees should be represented in collective bargaining. Under the NLRA and other labor statutes, only those individuals who share a sufficient "community of interest" may comprise an appropriate bargaining unit. Community of interests generally means that teachers have substantial mutual interests, including the following:
- Wages or compensation
- Hours of work
- Employment benefits
- Training and skills
- Job functions
- Contact with other employees
- Integration of work functions with other employees
- History of collective bargaining
Many state statutes set forth requirements or considerations with respect to determinations of bargaining units in the public sector. Moreover, some statutes set forth specific bargaining units.
The NLRA provides formal processes for designation and recognition of bargaining units. State statutes include similar provisions. When disputes arise with respect to union representation, many states direct parties to resolve these disputes with the public employment relations board in that state. Once employees organize bargaining units, members may file a petition with the appropriate labor board. The labor board will generally determine that JURISDICTION over the bargaining unit is appropriate, that the proposed bargaining unit it appropriate, and that a majority of employees approve the bargaining unit through an election. STATUTORY provisions and other rules generally ensure that the votes are uncoerced and otherwise fair. After this election, the labor board will certify the union as the exclusive representative of the bargaining unit. Once a union is certified, usually for a one-year period, neither employees nor another union may petition for a new election.
The Duty to Bargain
Once a union has been elected, both public and private employers are bound to deal exclusively with that union. The elected union must conversely bargain for the collective interests of the members of the bargaining unit. However, neither the union nor the employer is required to agree to any proposal or to make any concessions in the bargaining process.
Good Faith in Bargaining
Both employers and unions must bargain with one another in GOOD FAITH. The duty of parties to bargain in good faith is very important to the collective bargaining process, since negotiations between employers and unions can become very intense and heated. Interpretations of the term "good faith" under the NLRA typically focus an openness, fairness, mutuality of conduct, and cooperation between parties. Many state statutes define "good faith" similarly, though some states provide more specific guidance regarding what constitutes good faith bargaining. Some statutes also provide a list of examples of instances that are considered bargaining in BAD FAITH. Failure or refusal to negotiate in good faith constitutes an unfair labor practice under the NLRA and many other statutes.
Subjects for Collective Bargaining
The NLRA provides that an employer and union must bargain on issues concerning wages, hours, and other terms and conditions of employment. The National Labor Relations Board has established three sets of rules for the following three categories of bargaining issues: (1) illegal subjects, which would be forbidden by the NLRA; (2) voluntary subjects, which fall outside the mandatory subjects; and (3) mandatory subjects that in the category of wages, hours, and other terms and conditions of employment.
The National Labor Relations Board has determined that a number of topics fall within the category of mandatory subjects. Examples of these subjects are as follows:
- Employee discharge
- Working schedules
- Vacations and individual merit raises
- Christmas bonuses and profit-sharing retirement plans
- Plant rules on breaks and lunch periods
- Safety rules
- Physical examinations of employees
In the absence of statutory language specifying the scope of collective bargaining, unions and employers must consult relevant CASE LAW and labor board decisions to determine whether a subject is mandatory or voluntary. Other limitations to collective bargaining may also be present. A COLLECTIVE BARGAINING AGREEMENT, for example, cannot violate or contradict statutory law or constitutional provisions. Similarly, the collective bargaining agreement should recognize contractual rights that may already exist.
When good faith efforts between unions and employers fail to resolve the dispute or disputes between the parties, a legal impasse has occurred. Once this occurs, active bargaining between the union and the parties will typically be suspended, and parties go through a series of options to resolve the impasse.
The first option after an impasse is declared is MEDIATION. A mediator is employed to act as a neutral third party to assist the two sides in reaching a compromise. Mediators cannot make binding decisions and are employed only to act as advisors. Many state statutes require use of mediators in the public sector upon declaration of an impasse. Private sector unions and schools may employ a federal mediator, though federal labor laws do not prescribe further options regarding dispute resolution.
Should mediation fail, many states require the employment of a fact-finder, who analyzes the facts of the bargaining process and seeks to recognize a potential compromise. Parties are not bound by recommendations of the fact-finder, though a fact-finder may influence public opinion regarding an appropriate resolution of a dispute. In some states, fact-finding is the final stage of impasse resolution, leaving the parties to bargain among themselves.
Union employees often resort to picketing when there is a conflict between the union and the employer. Picketing in its simplest form is used to provide information to employees and the public that there is a dispute between the union and the employer. However, picketing is also used to coerce action on the part of the employer or to dissuade customers from patronizing the employer.
The National Labor Relations Board permits picketing for purely informational purposes. However, it is unlawful for a union to picket where it seeks recognition for a union or seeks for employees to accept the union when another union has been recognized, and the NLRB would not conduct a new election; a valid election has been conducted within the past 12 months; or no election petition has been filed, and picketing has been conducted for a period of time not to exceed 30 days.
Questions are sometimes raised when the picketing seeks to provide information and seeks recognition of the union. The NLRB has set forth a number of rules, some of which hinge on whether the picketing disrupts pickup from or delivery to the employer.
Unions also employ boycotts when conflicts occur. A primary or simple BOYCOTT occurs when a union refuses to deal with, patronize, or permit union members to work for the employer with whom the union has a conflict. A secondary boycott occurs when a union refuses to deal with, or pickets, customers or suppliers of the employer. Many secondary boycotts are banned, and others are lawful only when limited conditions are met.
Strikes and Lockouts
Employees may resort to strike in the event of a conflict where other measures have failed. A lockout by an employer is the counterpart to the strike. The right to strike in the private sector is guaranteed under the NLRA. However, only about half of the states extend this right to employees in the public sector. Where public employees are not permitted to strike, state statutes often impose monetary or similar penalties on those who strike illegally. In states where strikes by public employees are permitted, employees must often meet several conditions prior to the strike. For example, a state may require that a bargaining unit has been properly certified, that methods for impasse resolution have been exhausted, that any existing collective bargaining agreement has expired, and that the union has provided sufficient notice to the school board. The purpose of such conditions is to give the parties an opportunity to avoid a strike, which is usually unpopular with both employers and employees.
State Provisions Regarding Labor Unions and Strikes
The NLRA governs labor relations of private employers, subject to some limitations. A union of a private employer should determine whether the NLRA applies to its business. State labor statutes generally govern labor relations between public employers and unions. These provisions are summarized below.
ALABAMA: All employees have the general right to join or not to join a labor organization.
ALASKA: Public employees are permitted to join to bargain collectively, and, subject to restrictions, public employees may strike.
ARKANSAS: It is PUBLIC POLICY in Arkansas that employees should be free to organize to bargain collectively. However, the STATUTE has been held not to apply to public employees, and public employees are prohibited from striking.
CALIFORNIA: California provides an extensive statutory scheme governing collective bargaining in that state. Collective bargaining by employees of public employers is generally permitted.
COLORADO: Collective bargaining is permitted by statute, which also provides a limited right to strike.
CONNECTICUT: Connecticut permits bargaining by state and municipal employees, with some exceptions.
DELAWARE: Most public employees are permitted to bargain collectively, but strikes by public employees are generally prohibited.
FLORIDA: Right for public employees to bargain collectively is guaranteed by statute, but public employees are forbidden to strike. Public employers are required to recognize employee organizations with majority status.
HAWAII: Statute permits collective bargaining by all public employees. During impasse, mediation, fact-finding, and binding ARBITRATION are provided by statute. Strikes are permitted only after other conflict resolution provisions have been completed without success.
ILLINOIS: Public employees are generally permitted to bargain collectively. Strikes are permitted only after certain conditions are met.
INDIANA: Most public employees permitted to bargain collectively, but strikes are generally prohibited.
IOWA: Statute allows bargaining by all public employees. The statute provides a number of procedures for conflict resolution, including mediation, fact-finding, and binding arbitration. Strikes by public employees are prohibited.
KANSAS: Collective bargaining is permitted by all public employees, but subject to some limitations in the process. Strikes by public employees are prohibited.
LOUISIANA: Collective bargaining is neither prohibited nor required in Louisiana.
MAINE: Statue permits collective bargaining by all public employees. Strikes by all state employees are prohibited.
MASSACHUSETTS: Statute allows collective bargaining by all public employees. Strikes or other strike-related activity are prohibited by public employees.
MICHIGAN: Statute permits bargaining by public employees. Strikes by public employees are prohibited.
MINNESOTA: Statute allows collective bargaining by all public employees. Strikes are permitted only after certain conditions have been met.
MISSOURI: Some public employees are granted a right to bargain collectively. Statute does not grant a right to strike.
MONTANA: Statute permits all public employees to bargain collectively. Courts have construed this statute to permit strikes.
NEBRASKA: Statute permits bargaining by all public employees. Nebraska restricts supervisors from joining a bargaining unit, with some exceptions. Strikes by teachers are prohibited.
NEVADA: Statute permits bargaining by all public employees. Strikes by public employees are illegal by statute.
NEW HAMPSHIRE: Statue permits collective bargaining by all public employees. Impasse resolution procedures must be implemented within the same time period specified by the statue. Strikes by public employees are illegal by statute.
NEW JERSEY: Statute permits bargaining by all public employees but excludes standards of criteria for employee performance from the scope of negotiation.
NEW YORK: Statute permits bargaining by all public employees. The statute limits the scope of negotiations to matters related to wages, employment hours, and other terms and conditions of employment. Arbitration is required by statute when an impasse is declared. Strikes by public employees are prohibited.
NORTH CAROLINA: Statute prohibits collective bargaining by all public employees. Statute also prohibits strikes by public employees.
NORTH DAKOTA: Statute permits mediation of disputes between public employees and employees. The statute also specifies the rights of public employees, including membership in a union.
OHIO: Statute permits collective bargaining by public employees. Strikes by public employees are prohibited.
OKLAHOMA: Statutes generally permit collective bargaining by public employees.
OREGON: Statue permits collective bargaining by all public employees. Impasse resolution procedures include mediation and fact-finding. Strikes are permitted after conflict resolution procedures have been implemented.
PENNSYLVANIA: Statute permits bargaining by all public employees under the Public Employee Relations Act. Statute limits which employees may be included in a single bargaining unit. Strikes by public employees are permitted only after conditions set forth in the statute are met.
RHODE ISLAND: Statute generally permits collective bargaining by state and municipal employees. Strikes by some public employees are prohibited.
SOUTH DAKOTA: Statute permits bargaining by all public employees. Strikes by public employees are prohibited.
TEXAS: Statute prohibits public employees from entering into collective bargaining agreements. Strikes by public employees are generally prohibited.
UTAH: Statute permits union membership by public employees.
VERMONT: Statute permits bargaining by all state and municipal employees. Strikes by state employees are generally prohibited.
VIRGINIA: Strikes by public employees are prohibited by statute.
WASHINGTON: State permits collective bargaining by public employees. Strikes by public employees are prohibited by statute.
WISCONSIN: Statute permits collective bargaining by municipal employees. Impasse resolution procedures include mediation and arbitration. Strikes are permitted after impasse resolution procedures have been exhausted.
WYOMING: Statute permits right to bargain collectively as a matter of public policy.
Foundations of Labor and Employment Law. Estreicher, Samuel, and Stewart J. Schwab, Foundation Press, 2000.
Labor Law in a Nutshell, Fourth Edition. 4th ed., Leslie, Douglas L., West Group, 2000.
Outline of Law and Procedure in Representation Cases. National Labor Relations Board, 2000. Available at .
Primer of Labor Relations, Twenty-Fourth Edition. 23rd ed., Kenny, John J., and Linda G. Kahn, Bureau of National Affairs, 1989.
U. S. Code, Title 29: Labor, Chapter 7, Labor-Management Relations, U. S. House of Representatives, 1999. Available at .
815 16th Street, N. W.
Washington, DC 20006 USA
Phone: (202) 637-5000
Fax: (202) 637-5058
Industrial Relations Research Association (IRRA)
University of Illinois, 121 Labor and Industrial Relations, 504
E. Armory, MC-504
Champaign, IL 61820 USA
Phone: (217) 333-0072
Fax: (217) 265-5130
National Labor Committee
275 Seventh Avenue, 15th Floor
New York, NY 10001 USA
Phone: (212) 242-3002
Fax: (212) 242-3821
National Labor Relations Board (NLRB)
1099 14th Street
Washington, DC 20570-0001
Phone: (202) 273-1770
Fax: (202) 273-4270
Occupational Health And Safety (Encyclopedia of Everyday Law)
The Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (1970) is the federal law that "assure[s] so far as possible every working man and woman... safe and healthful working conditions." The Act is administered by the correlative federal agency, the Occupational Health and Safety Administration (OSHA).
OSHA applies to all private sector employers engaged in any business affecting commerce (which, by way of the Commerce Clause of the U.S. Constitution [Art. I, Sec. 8], Congress derived its authority to exercise OSHA control over states). OSHA does not apply to public sector employees.
Employers with fewer than ten employees are exempt from some of OSHA's record-keeping requirements, as well as some of OSHA's penalties and enforcement measures. However, small employers must still comply with OSHA standards and provide a safe workplace for their employees.
The following are not covered by the OSH Act:
- Self-employed persons
- Farms at which only family members work
- Public sector employees (unless they are included in a State OSHA-approved plan)
- Those working conditions regulated by other federal agencies under other statutes. Examples include workplaces in the mining industry, nuclear energy and nuclear weapons industry, and much of the transportation industry.
Providing a Safe Workplace
OSHA mandates impose three obligations on employers. First, they are required to furnish a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. Second, they are required to comply with OSHA standards for workplace safety and health. Third, they are required to maintain records of employee injuries, deaths, illnesses, and exposures to toxic substances. They must also preserve all employee medical records.
Accident Prevention Programs
OSHA requires that every employer establish and maintain an Accident Prevention Program. The program must include training that will inform workers of hazards and teach them about safe work practices, including special instructions peculiar to their industry or peculiar to any special hazards.
An approved accident prevention program includes general training applicable to all workers, such as providing examples of the best ways to lift objects or the fastest way to exit a building. Instructions on the use of personal protective equipment, especially respirators, is a common subject for training.
A second part of an employer's accident prevention program involves the establishment of procedure to conduct internal inspections or reviews to help detect unsafe conditions and correct them before accidents happen. Many larger companies maintain a "Risk Assessment" office or have an employee whose entire job may be to detect and correct potential safety risks and hazards.
Workers' Right to Know
OSHA's Federal Hazard Communication Standard (29 CFR 1910.1200) requires employers to set up "hazard communication programs." Such programs are designed to inform employees about the health effects of toxic or chemical exposure and ways to prevent such exposures.
The Hazard Communication Standard requires that Material Safety Data Sheets (MSDS) be made available at the workplace for each and every chemical or hazardous product that an employee may come in contact with, and the ingredients of which may cause physical or health hazards. MSDS are prepared and supplied by the product's manufacturer and generally summarize the ingredients, the hazards to humans, and safe handling techniques when using the product. At the worksite, containers holding the product must have warning labels and/or other written signs describing the product's hazards.
Employers are also required to instruct employees on how to read the MSDS and make proper use of the information they contain. Employees must be trained on proper use of the hazardous product, safe handling methods, containment of the product (against leaks, spills, fumes, or spreads), personal protective gear, and emergency procedures.
Most employers must submit written information regarding their hazard communication programs, how they intend to disseminate information and conduct training, and what particular products or hazardous materials are at their workplace. MSDS must always be given to union officials or employees' physicians when requested.
Personal Protective Equipment
The OSHA standard covering personal protective equipment (which may vary for each industrial category) requires that employers provide, at no cost to employees, personal protective equipment as needed to protect them against certain hazards found at the workplace. Such equipment may include protective helmets, eye goggles, hearing mufflers or other hearing protection, hard-toed shoes, respiratory masks or shields, respirators, or gauntlets for iron workers.
Recordkeeping and Reporting
Two main records are required by OSHA to be kept by covered employers: OSHA Form 200 and OSHA Form 101. OSHA Form 200 is an injury/illness log. There are separate line entries for each recordable incident of illness or injury. The ongoing log also captures (by line entry) such information as whether the illness/injury required offsite or onsite medical treatment, whether there was a loss of consciousness, whether there were any restrictions of work or motion, and whether the employee was transferred to another job. At year's end, a summary Form 200, capturing the totals of illness and injury incidents, must be posted for the entire month of February in the following year.
OSHA Form 101 is the form used to record data involving each accident, injury, or illness. The form provides room for added detail about the facts surrounding the event. WORKERS' COMPENSATION claims forms or insurance claims forms may be substituted for the OSHA 101.
Employers are also required to report to the nearest OSHA office within eight hours of any accident that results in death or hospitalization of three or more employees. Periodically, employers may be contacted and notified that they have been selected to participate in the Department of Labor's Bureau of Labor Statistics (BLS) survey. Special recording and reporting forms may be required as part of the survey.
Training and Education
OSHA maintains more than 70 field offices that function as full-service centers offering a variety of safety-related information and assistance. This may include the dissemination of printed material, audiovisual aids on workplace hazards, lecturers available to speak to employees, and technical assistance.
OSHA also maintains and operates its Training Institute in Des Plaines, Illinois, where basic and advanced training in federal and state OSHA compliance is offered, and compliance officers, state consultants, and other agency personnel are certified. OSHA also provides funds and grants to organizations for conducting workplace training and education. It submits an annual report identifying areas of unmet needs and solicits grant proposals to address those needs.
Access to Records
OSHA Standard 3110 provides workers with the right to see, review, and copy their own medical records and records of exposure to toxic substances. Additionally, employees have a right to see and copy records of other employees' exposure to toxic substances if they have had similar past or present jobs or working conditions. Employees also may review employer information from the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (although this information is usually incorporated in the MSDS). "Exposure records" include:
- Workplace monitoring or measurement records
- MSDS or other information which identifies substances or physical agents and their characteristics
- Biological monitoring results (e.g., blood tests which monitor levels of absorbed substances in the body, etc.)
"Medical records" include:
- Results of medical exams, laboratory tests and other diagnostic tests
- Medical and employment questionnaires or histories
- Medical opinions, recommendations, diagnoses, and progress notes
Generally, a free copy is provided at the request of employees or access to a place where copies may be made is provided. Employees are permitted to establish a designated representative to review records on their behalf, such as a union representative. Written authorization for release of personal information is routinely required. Employers must preserve and maintain both exposure records and medical records for at least 30 years.
Protection From Retaliation for Reporting Violations
The Act expressly protects employees from adverse employment action (discharge or discipline) for exercising rights under the OSH Act. Employers are prohibited from discriminating against an employee as a result of that employee's having filed a complaint with OSHA, requested an OSHA inspection, talked with OSHA officials, or otherwise assisted OSHA with an investigation. Similar provisions are also incorporated in many states' "Whistleblowers" laws.
The Act also protects employees who refuse to perform a job task that is likely to cause death or serious injury. Such protection requires that the employee's refusal be based on a GOOD FAITH belief of real danger of death or serious injury, that a reasonable person in the employee's position would conclude the same, that there was/is insufficient time to eliminate the danger through OSHA channels, and the employee had unsuccessfully requested that the employer correct the hazard or risk.
Complying with OSHA Standards
OSHA standards are categorized by industry sectors. Those applicable to general industry are contained in 29 CFR 1910. Those applicable to the construction industry are contained in 29 CFR 1926. Maritime, marine terminals, longshoring standards are found at 29 CFR 1915 to 1919. Agricultural industry standards are found at 29 CFR 1928. As of 2002, OSHA regulations filled five volumes of the CFR (CODE OF FEDERAL REGULATIONS).
Workplace inspections are authorized under the Act and are generally conducted by OSHA compliance safety and health officers (CSHOs), who are trained by OSHA. Programmed inspections are of a periodic or routine nature, while unprogrammed inspections are in direct response to a specific complaint or catastrophes.
Penalties and Consequences of OSHA Violations
- Serious Violations: Any violation which creates a substantial probability that death or serious physical harm could result and the employer knew or should have known of the hazard. For such violations, a mandatory PENALTY of up to $7,000 for each occurrence may be imposed. Serious violations may be downgraded by OSHA personnel, based upon employer good faith, lack of previous violations, the size of the business, etc.
- Other than Serious Violations: Any violation directly related to workplace safety or health, but would unlikely cause serious physical harm or death. OSHA may propose a discretionary penalty of up to $7,000. These violations also may be downgraded by OSHA personnel, based upon employer good faith, lack of previous violations, the size of the business, etc.
- Willful Violations: Any violation that an employer intentionally and knowingly commits. The employer must either know that he or she is committing a violation, or be aware that a serious hazardous condition exists and makes no reasonable effort to eliminate it. The Act assesses a civil penalty of not less than $5,000 for such violations. Moreover, if the violation results in the death of an employee, a court-imposed criminal fine of up to $250,000 for individuals and/or IMPRISONMENT for up to six months; or $500,000 for CORPORATIONS as a criminal fine may be imposed.
- Repeated Violations: Repeat violations may result in fines up to $70,000 each. To be considered a "repeat" offense or violation, the CITATION for the original violation must have been issued in final form.
- Failure to Correct a Prior Violation: Such failures may bring civil penalties of up to $7,000 if the violation extends beyond the prescribed ABATEMENT date.
Appeals may be initiated by employers or employees. Employees may not contest citations, amendments to citations, penalties, or the lack thereof. If the inspection was the result of an employee complaint, that employee may informally appeal any decision to not issue a citation. Employees may also appeal their employers' petitions for modifications of abatement (PMAs).
Employers may appeal both citations and penalties. At the first level, employers may request meetings with area directors and may send representatives authorized to enter into SETTLEMENT agreements. However, a formal notice of contest must be in writing and be delivered within 15 days of receipt of the citation or proposed penalty. A copy of the employer's Notice of Contest must be given to the employees' authorized representative.
State OSH Laws and Programs
States must obtain express permission from the Secretary of Labor to promulgate their own laws regulating any area directly covered by OSHA regulation. States are free to regulate any area not covered by federal OSHA regulations. Federal approval of a state OSHA plan has been effected in two-thirds of states as of 2002. The following states have substituted approved state OSH plans for the federal OSHA plan:
- NEW JERSEY
- NEW MEXICO
- NEW YORK
- NORTH CAROLINA
- SOUTH CAROLINA
Family Legal Guide. American Bar Association. Times Books, Random House: 1996.
"The Occupational Safety and Health Act." Small Business Handbook. Available at .
"State Plans." Published by OSHA, U.S. Department of Labor. 16 January 2002. Available at http://www.osha.gov.
"Workers Have a Right to Know." Undated. Available (May 2002) at .
Privacy (Encyclopedia of Everyday Law)
Employers have a legitimate and important interest in maintaining an efficient and productive workforce and a safe workplace. Most employers establish rules governing workplace conduct to ensure that employees stay on task and earn their wages. Yet, these rules are often broken, and that in turn increases the need for employers to monitor their employees. Prior to the present era of technology and computers, employer supervision typically took the form of hands-on monitoring, a supervisor patrolling the workplace to make sure that employees were doing their jobs. In some employment settings hands-on supervision remains common place. For example, many manufacturers still employ supervisors to monitor assembly-line workers as they toil each day. In a host of other employment settings, human supervision has been replaced at least in part by technological supervision.
Technological innovations, particularly computers, have drastically altered the nature of the employer-employee relationship. Where once a human supervisor could only monitor employee activity in one place at one time, networked computers now allow employers to monitor nearly everything, nearly all the time, and without employees knowing whether they are being watched. Internet usage can be monitored by employers seeking to compile data about the websites being visited by their employees. Files stored on employees' hard drives can be scanned for format and content. Surveillance cameras can monitor workers' activity throughout the workplace. Telephone lines can be monitored and telephone conversations recorded.
There are two kinds of workplace electronic surveillance, quantitative and qualitative. One type involves monitoring records and analyzes quantitative information, such as the number of keystrokes per hour and the number of minutes spent on the telephone each day. The other type of monitoring analyzes the quality of performance in whatever qualitative terms an employer defines. For example, many employers monitor the content of incoming and outgoing email to make sure the messages exchanged are work-related.
Balanced against employers' interests in maintaining an efficient, productive, and safe workplace are employees' interest in privacy. Workers have a legitimate and important interest in being able to perform their jobs without fear of embarrassment or stigma that might result from an employer's unreasonable intrusion into their workspace. It is also reasonable for employees to expect that their employers will not disclose personal information they obtain via pre-employment applications, honesty tests, POLYGRAPH examinations, criminal background checks, urine or blood analyses, and the like.
The interests of employers and employees are not always at odds. The quality of the work environment is a concern to both groups. Employees do not generally appreciate having to worry about constant electronic surveillance. Respect for employee privacy is one factor people consider when deciding whether to apply for a job, take a job, or keep a job, and employers generally take heed of this reality. Consistent with employers' goal of maintaining a productive workforce is their goal of attracting good employees and keeping them happy. Accordingly, most employers understand that they must offer a professional work environment in which employees can exercise a certain amount of liberty free from the watchful eye of a supervisor. However, the line separating a reasonable intrusion on employee privacy from one that is unreasonable is often neither clear nor bright, and courts are routinely asked to draw the line for labor and management as a whole.
In the United States the right to privacy traces it origins to the nineteenth century. In 1890 Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy" (4 Harv. L. Rev. 193), an influential article that postulated a general COMMON LAW right of privacy. Before publication of this article, no U. S. court had ever expressly recognized a right to privacy. Since the publication of the article, courts have recognized a general right to privacy that Americans enjoy to varying degrees in different contexts.
Today privacy in the labor context is regulated at both the state and federal levels by a combination of constitutional provisions, federal statutes, and common law. Depending on the JURISDICTION, the laws can regulate both private employees and public employees (i.e., employees working for a governmental entity). Companies doing business in multiple states must stay familiar with the privacy laws in each state.
Federal Law Governing Workplace Privacy
Federal law governing workplace privacy generally falls into two categories, constitutional law or STATUTORY law. There is no federal common law governing workplace privacy, other than the CASE LAW interpreting the U. S. Constitution and federal statutes.
Federal Constitutional Law
The Fourth Amendment to the U. S. Constitution prohibits the federal government from conducting unreasonable searches and seizures, and searches or seizures conducted without a WARRANT are presumptively invalid. The U. S. Supreme has repeatedly held that public employees are protected by the strictures of the Fourth Amendment precisely because they are employed by the government. O'Connor v. Ortega, 480 U. S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Workers employed by private companies enjoy no such constitutional protection.
The Supreme Court and lower courts have also consistently ruled that the Fourth Amendment right protecting public employees from unreasonable searches and seizures conducted by their employers is more limited than the right protecting the rest of society from searches and seizures conducted by law enforcement officials investigating criminal activity. The Fourth Amendment only protects individuals who have a "reasonable expectation of privacy" in the place to be searched or the thing to be seized. However, in the public employment context courts have recognized that they must balance the alleged invasion of an employee's privacy against the employer's need for control of a smoothly running workplace.
One consequence of this balancing is that employers typically do not need a SEARCH WARRANT or PROBABLE CAUSE to search an employee's work space, so long as the search is for work-related reasons. Even when the search is for EVIDENCE relating to employee misconduct, the employer's intrusion need not be made pursuant to a search warrant or probable cause unless the alleged misconduct rises to the level of criminal activity, at which point the employee is entitled to full protection of the Fourth Amendment.
Thus, it is generally recognized that most work-related intrusions by an employer comply with the Fourth Amendment's reasonableness requirement. Courts have said that requiring a warrant for work-related searches would be disruptive and unduly burdensome. To ensure the proper, ongoing operation of governmental agencies, entities, and units, courts interpret the Fourth Amendment as giving public employers wide latitude to enter employee offices, search their desks, and open their drawers and file cabinets for work-related reasons.
Drug testing of government employees (or of private employees pursuant to government regulation) has been addressed by several courts. Upon weighing the competing public and private interests, most lower courts have concluded that such testing is constitutional at least in those instances where the employer possessed a reasonable suspicion that a particular employee was using drugs and that the drugs affected the employee's job performance. For example, employers can compel workers to undergo blood, breath, or urine tests to check for drug use following a serious workplace accident that injured or imperiled others, so long as the employer has reason to believe that the accident was caused in part by an employee's drug use. Courts allowing drug testing in these situations have emphasized that the reasonable suspicion test fairly accommodates employees' privacy interests without unduly compromising workplace safety or the safety of the public.
For certain employees, drug testing is not only constitutionally permissible, but statutorily mandated. Under the Federal Drug-Free Workplace Act of 1988, drug testing is required of both public and private employees who are engaged in work that creates high risks of danger to the health and safety of other workers or the health and safety of the public. 41 U.S.C.A. sections 701 et seq. Employees targeted for mandatory drug testing include those employed in the following industries: mass transit, motor carriers (taxi cabs and buses), aviation, railroads, maritime transportation, and natural gas and pipeline operations. In addition, the Americans with Disabilities Act (42 U.S.C.A. section 12210) and the Rehabilitation Act of 1973 (29 U.S.C.A. sections 701 et seq) allow employers to establish drug testing programs for former drug users who are currently enrolled in a drug rehabilitation program or have completed one in the past. Because courts have interpreted these laws as effectively placing former and present substance abusers on notice, employees subject to their provisions typically understand the very limited privacy rights they enjoy when it comes to employer-mandated drug tests.
Less clear cut is the application of the National Labor Relations Act (NLRA) to privacy issues in the employment setting. The NLRA guarantees employees the right to "self-organize, to form, join, or assist labor organizations, to bargain collectively . . . and to engage in other concerted activities for . . . mutual aid or protection." 29 U.S.C.A. sections 101 et seq. The act also prohibits employers from committing "unfair labor practices" that would violate these rights. An UNFAIR LABOR PRACTICE is any action or statement by an employer that interferes with, restrains, or coerces employees in the exercise of their rights to self-organize.
Employer surveillance of employee activities may constitute an unfair labor practice if the surveillance interferes with, restrains, coerces, or intimidates employees who are exercising one of their rights protected by the NLRA. At the same time, the NLRA permits employers to enforce company rules aimed at guaranteeing employee productivity and safety, and federal courts have acknowledged that workplace surveillance is sometimes necessary to achieve these objectives. However, employee surveillance will not normally withstand scrutiny under the NLRA unless a rule is actually in place before the surveillance begins.
Once a rule is in place, the lawfulness of a particular surveillance method will be evaluated on a case-by-case basis. Where union or non-union employees conduct their activities openly on or near company property, employers may lawfully observe their activities without running afoul of the NLRA, even if there is no pre-existing rule in place authorizing such observation. N.L.R.B. v. C. Mahon Co., 269 F.2d 44 (6th Cir. 1959). However, an illegal intent may be inferred from an employer's surveillance of open activities if the surveillance is combined with other forms of employer harassment, interference, or intimidation, and the employee under surveillance is subsequently discharged. A history of anti-union animus will also weigh against an employer who is engaged in what would otherwise be deemed lawful surveillance. Conversely, what otherwise might be deemed an unfair labor practice can be made lawful if the surveillance is isolated, not accompanied by a threat, and the employer gives assurances that the employee's job is safe.
Before conducting surveillance of its employees, employers also need to familiarize themselves with the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. No. 90-351, 82 Stat. 197, June 19, 1968; 18 U.S.C.A. sections 2510-2520. Title III of the act prohibits any person from intentionally using or disclosing information that has been knowingly intercepted by electronic surveillance without consent of the persons under surveillance. As originally conceived, the act applied only to the "aural" acquisition of information by recording, bugging, WIRETAPPING, or other devices designed to intercept and transmit sound.
Congress updated the act by passing the Electronic Communications Privacy Act of 1986 (ECPA). Pub.L. 99-508, Title I, Oct. 21, 1986, 100 Stat. 1848. ECPA governs the interception of data transmissions, which comprise the bulk of modern electronic communications. ECPA prohibits anyone from intercepting, accessing, or disclosing electronic communications without first getting authorization from the parties to the communication. However, ECPA does permit employers to monitor employees' electronic communications if the monitoring is done in the regular course of business, regardless of whether the communication involves a data or sound transmission, so long as the employer is the provider of the communication system being monitored. Thus, an employee's use of intra-company email is generally fair game for employers' to monitor. However, employees who transmit messages from work via a third-party email provider, such as Yahoo!, may create a reasonable expectation of privacy that insulates their communications from employer monitoring.
State Law Governing Workplace Privacy
State law governing workplace privacy generally falls into one of three categories, constitutional law, statutory law, or common law. Like their federal counterparts, state courts are cognizant of every employer's need to maintain an efficient, productive, and safe workplace. Nonetheless, state law often affords more protection for the privacy interests of both public and private employees,
State Constitutional Law
Many state constitutions guarantee a right to privacy independent of the right to privacy found in the federal constitution. Those states include Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, Texas, and Washington. Some of these state constitutional provisions apply only to public sector employees, while others have been interpreted to apply generally to all state residents. Although it is difficult to make meaningful generalizations about each of these state constitutional provisions, employees' privacy interests are frequently afforded greater protection under state constitutional law than they are under the federal constitution.
For example, the Texas Supreme Court invalidated a state agency's mandatory polygraph testing policy on the grounds that it violated the employee's privacy rights protected by the Texas constitution. Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203 (1987). The court found that the test was "highly offensive" to the average employee because of the extremely personal nature of the questions asked. The court also concluded that the test was not accurate enough to provide a reliable way of identifying misbehaving, inefficient, or unproductive employees.
A California court reinstated a railroad employee who was fired for refusing to take a random drug test. The court noted that an employee's right to privacy in refusing a drug test is not absolute under the state constitution but must be weighed against the employer's competing interests. Luck v. Southern Pac. Transp. Co., 218 Cal. App. 3d 1, 267 Cal. Rptr. 618 (1990), rehearing denied 489 U.S. 939, 112 L. Ed. 2d 309, 111 S. Ct. 344 (1990). Conceding that the employer had a compelling interest in maintaining a safe workplace, the court noted that the discharged employee was simply a clerk who had no direct involvement with the railway operations. As a result, the court determined that the employee's privacy interests were more substantial than the employer's countervailing interests.
At the same time, state courts are pragmatic. They are normally disinclined to interpret a general right to privacy as a guarantee of specific individual freedoms that might be exercised to disrupt the workplace or interfere with an employer's legitimate interest in gathering relevant information about employees and job applicants. Thus, the Florida Supreme Court rejected a prospective employee's claim that she was not required to disclose whether she was a smoker on a pre-employment application. City of North Miami v. Kurtz, 653 So.2d 1025 (1995). The court found that the applicant did not enjoy a reasonable expectation of privacy regarding her use of tobacco.
Several states and U. S. territories have enacted statutory provisions that prohibit employers from spying on employees who are exercising certain protected rights. They include Connecticut, Hawaii, Kansas, Minnesota, New York, Rhode Island, the Virgin Islands, and Wisconsin. Most of the prohibitions contained in these statutes closely mirror or expand upon the prohibitions contained in the NLRA. Specifically, the statutes regulate employer surveillance of workers who are engaging in union-related activities, and each STATUTE permits employer surveillance that is done pursuant to clearly defined rules and in furtherance of legitimate business objectives.
A number of states have also enacted statutes that prohibit employers from disclosing certain personal information about employees gathered during the employment relationship. Minnesota, for example, forbids public employers from disclosing information contained in an employee's personnel file. M.S.A. sections 13.01-13.99. Georgia makes it unlawful for employers to obtain certain criminal history information about an employee or prospective employee without that person's consent. OCGA section 35-3-34(A). Alaska makes it unlawful for employers to require employees or job applicants take a polygraph EXAMINATION. Alaska Stat. Section 23.10.037. However, no state prohibits an employer from requiring an employee or job applicant to undergo a psychological evaluation for the purpose of assessing the test-taker's propensity for truthfulness or deceit.
Several states limit the right of healthcare providers to release medical information to a patient's employer. For example, a Maryland statute generally requires the patient's consent before healthcare providers can disclose medical information to employers. Md Health General Code Ann., section 4-305. Similar statutory restrictions in Maryland prohibit insurance carriers from disclosing medical information to an insured's employer without the insured's consent. Md. Ins. Code Ann., section 4-403.
State Common Law
The state common law of torts generally recognizes three discrete rights of privacy that are regularly asserted during employment LITIGATION. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common law right to sue when information concerning their private life is disclosed to the public in an extremely objectionable fashion. Third, tort liability may be imposed on individuals or entities who publicize information that places someone in a false light.
A valid cause of action for invasion of privacy will not arise for any of these common law torts unless the employer's intrusion is so outrageous or pervasive as to offend the sensibilities of the average, reasonable person. Merely calling an employee at home, for example, will not give rise to a claim for invasion of privacy, unless the employer making the calls is doing so in a persistent and extremely offensive manner. Johns v. Ridley, 245 Ga.App. 710, 537 S.E.2d 746 (Ga.App. 2000). However, a claim for invasion of privacy may be supported by the allegations of female employees who claim that their supervisor has poked holes in the ceiling to watch them disrobe in the women's restroom. Benitez v. KFC Nat. Management Co., 305 Ill.App.3d 1027, 714 N.E.2d 1002, 239 Ill.Dec. 705 (Ill.App. 2 Dist. 1999).
At the same time, an employer who merely reveals an employee's credit problems to co-workers may not be held liable for invasion of privacy. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958 (Ind.App. 2001). Nor may an employer be held liable for common law invasion of privacy by circulating a sexually suggestive photograph of a male employee, if the photograph accurately depicts the employee in a place open to the public. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App. 2001). Similarly, an employer does not invade an employee's privacy during an office meeting by suggesting that the employee stole from the employer, if the employer's suggestion is made during an investigation of office thefts and the employee's possible role in them. Zielinski v. Clorox Co., 215 Ga.App. 97, 450 S.E.2d 222. (Ga.App. 1994)
It is telling that much of the law governing privacy in the workplace actually protects employers from liability for invasion of privacy claims brought by employees. In this way the law reflects a general understanding among the American public that the workplace is essentially a place for commerce, productivity, and human interaction, but normally not a place for privacy or seclusion.
For the most part, employees themselves realize that the employer owns the company and expends the resources to make it profitable. Employees generally want to be efficient and productive so they can receive better reviews and better raises. Consequently, the law gives employers wide latitude and ample discretion in dictating how their businesses will be run. On the other hand, an individual does not abandon his or her privacy rights at the employer's front door. Instead, the law puts in place certain checks to prevent employers from overstepping BOUNDARIES, abusing their positions of power and authority, and running their businesses in a manner deemed highly offensive or objectionable to the average person.
American Jurisprudence. West Group, 1998.
West's Encyclopedia of American Law. St. Paul: West Group, 1998.
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Sexual Harassment (Encyclopedia of Everyday Law)
Unheard of until the 1970s, SEXUAL HARASSMENT has become a dominant concern of employers, schools, and other organizations throughout the country. It is one of the most litigated areas of sexual DISCRIMINATION law, and virtually all major companies, government organizations, colleges and universities and even the military now have sexual harassment policies in place. Even the president of the United States has been subject to a sexual harassment lawsuit.
The definition of sexual harassment has always been controversial. Black's Law Dictionary defines it as ""A type of employment discrimination consisting in verbal or physical abuse of a sexual nature," and it has also been held to exist in educational situations. But beyond this, there is the question of what kind of behavior translates into sexual harassment and what the relationship of the parties must be for sexual harassment to occur.
These issues have been fought over at the federal level for many years. Although sexual harassment law is still not clearly defined, there has emerged over the years a consensus of the basic outlines of what sexual harassment is and what needs to be done by companies and other groups to prevent it.
Types of Sexual Harassment
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment this way: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individuals employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment."
Generally speaking, the EEOC guidelines divide sexual harassment into two different types:
- QUID PRO QUO sexual harassment is the easiest kind of sexual harassment to understand. Quid pro quo is a Latin term that translates as "something for something," and quid pro quo sexual harassment is simply an employer or other person in a position of power demanding sexual favors in return for advancement or as the basis for some other employer decision. To establish a case of quid pro quo sexual harassment, individual employees must show that they were subjected to conduct of a sexual nature that was unwelcome, unsolicited, and not incited or instigated by the employee; that the conduct was based on their sex; and that the employees' reaction to the conduct was used as the basis for an employment decision involving compensation, privileges, or conditions of employment. An example of quid pro quo sexual harassment would be a boss demanding his employee to have sex with him in return for a promotion. Quid pro quo sexual harassment is the easiest kind of sexual harassment to prove, but it is also uncommon compared to the other type of sexual harassment.
- Hostile-environment sexual harassment is created in situations in which an employee is subject to unwelcome verbal or physical sexual behavior that is either extreme or widespread. There is no threat to employment in this kind of harassment, but the harassment causes the employee subject to it enough psychological strain as to alter the terms, conditions and privileges of employment. Hostile environment harassment includes such circumstances as hearing sexual jokes, seeing pornographic pictures, and receiving repeated invitations to go on dates. This type of sexual harassment LITIGATION currently is most seen by courts and is the kind most difficult to prove. Most recent Supreme Court and appeals court cases regarding sexual harassment have been hostile-environment cases.
Sexual harassment law has had a history in the United States only since the 1964 CIVIL RIGHTS Act, and even then, the first sexual harassment cases were not brought under the Act until the 1970s. Since then, the trend has been for courts to broaden their interpretation of what constitutes sexual harassment under the law, with some exceptions.
Title VII and EEOC Guidelines
Title VII of the Civil Rights Act of 1964 marked the first time sexual discrimination was banned in employment. Title VII prohibits discrimination by employers, employment agencies, and labor organizations with 15 or more full-time employees on the basis of race, color, religion, sex, or national origin. It applies to pre-interview advertising, interviewing, hiring, discharge, compensation, promotion, classification, training, apprenticeships, referrals for employment, union membership, terms, working conditions, working atmosphere, seniority, reassignment, and all other "privileges of employment."
In the years immediately following the passage of Title VII, sexual harassment claims were rarely brought under the STATUTE, and when they were, courts dismissed their claims as not applying to the statute. Finally in the mid-1970s, courts began to accept sexual harassment as a form of gender discrimination under Title VII.
This trend received an enormous boost with the EEOC's passage of the first guidelines against sexual harassment in 1980. The guidelines which courts are not required to follow, specifically stated for the first time that "harassment on the basis of sex is a violation of Title VII," and then the guidelines go on to define sexual harassment. However, these standards remained ambiguous enough as to create some disagreement among appeals courts as to what actually constitutes sexual harassment and defines hostile environment sexual harassment.
Meritor Savings Bank v. Vinson
Meritor Savings Bank v. Vinson, decided in 1986, marked the first time the Supreme Court considered a sexual harassment case under Title VII. The case involved a female employee at a bank who alleged she was forced to have sex by her supervisor, fearing the loss of her job if she refused. The EVIDENCE showed the employee had repeatedly advanced through the bank by merit, that she had never filed a complaint about the supervisor's behavior, and that she was terminated only because of lengthy sick leave absence. Yet the Supreme Court ruled that she had a case against her former employer on the basis of hostile environment sexual harassment.
For sexual harassment to be actionable, the court declared, it must be "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." In this case, the Court held, the facts were "plainly sufficient to state a claim for 'hostile environment' sexual harassment." The Court also added that on the facts of the case, the plaintiff had a claim for quid pro quo sexual harassment as well.
The Meritor case was a landmark for sexual harassment rights in that it established the legal legitimacy of both quid pro quo and hostile environment sexual harassment claims before the Supreme Court. It also rejected the idea that there could be no sexual harassment just because the sexual relations between the plaintiff and the DEFENDANT were voluntary. The results opened a floodgate of sexual harassment litigation.
Harris v. Forklift Systems, Inc.
The 1993 case of Theresa Harris marked the Supreme Court's next foray into sexual harassment law. Harris was a manager who claimed to have been subjected to repeated sexual comments by the company's president, to the point where she was finally forced to quit her job. The question before the Court was whether Harris had to prove she had suffered TANGIBLE psychological injury or whether her simply finding the conduct abusive was enough to prove hostile environment sexual harassment.
In allowing Harris to proceed with her case, the Court took a "middle path" between allowing conduct that was merely offensive and requiring the conduct to cause a tangible psychological injury. According to the Court, the harassment must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive and also is subjectively perceived by the alleged victim to be abusive. Proof of psychological harm may be relevant to a determination of whether the conduct meets this standard, but it is not necessarily required. Rather, all of the circumstances must be reviewed, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee/s work performance." The Harris case further broadened sexual harassment law, making it much easier for plaintiffs to prove harm from sexual harassment.
Oncale v. Sundowner Offshore Services, Inc.
Oncale, a 1998 case, marked the Supreme Court's RATIFICATION of the same-sex sexual harassment case. The Court held that male-on-male and female-on-female sexual harassment violated Title VII in the same way a male-female sexual harassment situation would violate it. The Court said harassing conduct did not have to be motivated by sexual desire to support an inference of discrimination on the basis of sex.
Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth
Faragher and Burlington Industries both stood for the same proposition: employers are vicariously liable for the actions of their supervisors in sexual harassing employees even if they did not ratify or approve of their actions, or even if they had policies prohibiting sexual harassment in place. However, the Supreme Court, decided in these two 1998 cases that employers could defend themselves against supervisor sexual harassment cases by proving (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm. Even with these two caveats, however, the Supreme Court expressly held that these defenses were not available "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
Clark County School District v. Breeden
The 2000 case of Clark County School District v. Breeden was the first time the Supreme Court narrowed the scope of Title VII sexual harassment claims. Ruling in the case of an employee who said she had been retaliated against for reporting a sexually offensive mark made by a supervisor, the Court ruled that for sexual harassment conduct to be severe and offensive enough to be actionable, it had to be more than teasing, offhand comments, or an isolated incident, unless that incident was extremely serious. The case served notice that courts had to be careful to find a balance in sexual harassment cases in the process of determining what constitutes creating a hostile environment.
Other Legal Issues
Although the Supreme Court has the final word on sexual harassment cases, litigation has proved broad enough that there are many unsettled questions that still remain in regards to sexual harassment.
These questions include the proper standard to be imposed in sexual harassment cases, whether a "reasonable person" should be more like a reasonable man or a reasonable woman. Also, whether employers can be held liable for "second-hand sexual harassment," sexual harassment not directed at the plaintiff. Another issue is whether is constitutes sexual harassment when a supervisor creates an equally hostile environment for both men and women. These are just some of the issues currently unresolved in the area of sexual harassment law.
Education and Sexual Harassment
Employers are not the only ones who have to deal with sexual harassment issues. Educators also deal with sexual harassment cases, in both the areas of teacher-student sexual harassment and student-on-student sexual harassment. Until very recently, it was unclear whether such cases were legitimate, but two important Supreme Court cases dealing with education and sexual harassment decided in the 1990s seem to have settled the matter.
Unlike employment sexual harassment cases brought under Title VII, cases involving sexual harassment of students are brought under Title IX of the Educational Amendments of 1972. Title IX states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
For many years, there was confusion as to whether a sexual harassment case could be brought under Title IX. Some courts allowed them, and others did not. Then in 1992, the Supreme Court decided the case of Franklin v. Gwinnett County Schools, the first time the court had given an opinion in on the matter.
Franklin v. Gwinnett County Public Schools
In this case, the Supreme Court determined for the first time that a high school student who was allegedly subjected to sexual harassment and abuse could seek monetary damages under Title IX for alleged intentional gender-based discrimination. The case involved a high school girl who claimed a coach at her school was persistently harassing her, including at one point forcing her to have intercourse with him. The girl claimed that school officials knew about the harassment but made no efforts to stop it. Eventually, the girl switched to another school.
The Court said that damages were available for an action brought to enforce Title IX prohibiting exclusion from participation in, denial of benefits of, or discrimination under any education program or activity receiving Federal financial assistance, since there was no indication in text or history of statute that Congress intended to limit available remedies. In this case, the coach's action in harassing the girl prevented her from fully participating in educational opportunities at her school, thus violating Title IX.
Davis v. Monroe County Board of Education
In this 1999 case, the Supreme Court expanded the reach of Gwinnett to cover student-on-student sexual harassment. A narrow majority of the court ruled that a school district could be held liable for damages if the school district acts with deliberate indifference to known student-on-student sexual harassment that is so severe as to effectively deny the victim access to an educational program or benefit.
The Court did rule that school districts retain flexibility when it comes to sexual harassment and that damages were not available for acts of teasing and name-calling, even where these comments target differences in gender. But in this case, involving physical contact and sexual slurs allegedly so harsh and pervasive it caused the victim to consider suicide, a claim under Title IX could be established.
State Laws and Sexual Harassment
Although most sexual harassment claims are brought under federal law, many states have civil rights laws that cover much of the same ground as Title VII and provide an additional state cause of action for sexual harassment. These states often require such complaints to be adjudicated before a specific board or court. States that have civil rights laws prohibiting discrimination on the basis of gender and, therefore, providing a possible cause of action for sexual harassment, include in the following:
- ALASKA: Complaint to be filed before Alaska Commission for HUMAN RIGHTS, also provides for private state action
- ARIZONA: Complaints filed with Civil Rights Division
- COLORADO: Complaints filed with Colorado Civil Rights Commission
- CONNECTICUT: Complaints filed with Commission on Human Rights and Opportunities
- DELAWARE: Complaints filed with state's labor department
- DISTRICT OF COLUMBIA
- FLORIDA: Complaints filed with Florida Human Relations Commission
- HAWAII: Complaints filed with State Civil Rights Commission
- IDAHO: Complaints filed with Idaho Commission on Human Rights
- ILLINOIS: Complaints filed with the Department of Human Rights
- INDIANA: Complaints filed with Indiana Civil Rights Commission
- IOWA: Complaints filed with Civil Rights Commission
- KANSAS: Complaints filed with Kansas Commission on Civil Rights
- KENTUCKY: Complaints filed with Commission on Human Rights
- MAINE: Complaints filed with Human Rights Commission
- MASSACHUSETTS: Complaints filed with Commission Against Discrimination
- MICHIGAN: Complaints filed with Civil Rights Commission
- MINNESOTA: Complaints filed with Commission of the Department of Human Rights
- MISSOURI: Complaints filed with Commission on Human Rights
- MONTANA: Complaints filed with Commission on Human Rights
- NEBRASKA: Complaints filed with Equal Opportunity Commission
- NEVADA: Complaints filed with Nevada Equal Rights Commission
- NEW HAMPSHIRE: Complaints filed with Commission on Human Rights
- NEW JERSEY: Complaints filed with Division of Civil Rights
- NEW MEXICO: Complaints filed with Commission on Human Rights
- NEW YORK: Complaints filed with Commission on Human Rights
- North Dakota
- OHIO: Complaints filed with Commission on Civil Rights
- OKLAHOMA: Complaints filed with Commission on Human Rights
- OREGON: Complaints filed with Bureau of Labor and Industries
- PENNSYLVANIA: Complaints filed with Human Relations Commission
- RHODE ISLAND: Complaints filed with Commission on Human Rights
- SOUTH CAROLINA: Complaints filed with Commission on Human Affairs
- SOUTH DAKOTA: Complaints filed with Division of Human Rights
- TEXAS: Complaints filed with Commission on Human Rights
- UTAH: Complaints filed with State Industrial Commission
- WASHINGTON: Complaints filed with Commission on Human Rights
- WEST VIRGINIA: Complaints filed with Commission on Human Rights
- WISCONSIN: Complaints filed with Department of Industry, Labor, and Human Relations
- WYOMING: Complaints filed with Fair Employment Commission
"Davis v. Monroe County Board of Education: Title IX Recipients' 'Head In The Sand' Approach to Peer Sexual Harassment May Incur Liability," Romano, Patricia, Journal of Law and Education, January, 2001.
Draw the Line: A Sexual Harassment Free Workplace. Lynch, Frances, Oasis Press, 1995.
Sex, Power and Boundaries: Understanding and Preventing Sexual Harassment. Rutter, Peter, Bantam Books, 1996.
"So Much for Equality in the Workplace: The Ever-Changing Standards for Sexual Harassment Claims Under Title VII," Rushing, Emily E., St. Louis University Law Journal, Fall 2001.
U. S. Code, Title 20: Education, Chapter 38: Discrimination Based on Sex or Blindness. U. S. House of Representatives, 1999. Available at:
U. S. Code, Title 42: The Public Health and Welfare, Chapter 21: Civil Rights, Subchapter VI: Equal Employment Opportunities. U. S. House of Representatives, 1999. Available at:
"What the General Practitioner Needs to Know to Recognize Sexual Harassment Claims," Miller, Gerald L., Alabama Lawyer, July, 2001.
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Unemployment Insurance/Compensation (Encyclopedia of Everyday Law)
The U.S. Constitution does not recognize any right to work for pay. However, by virtue of a myriad of federal and state laws, persons who work for pay but lose their employment through no fault of their own and are unable to immediately secure other employment are generally eligible for temporary monetary assistance.
"Unemployment compensation" is generally paid to eligible persons through mandatory state programs designed to protect workers from interruption of wages or income due to loss of work. Compulsory, state-imposed unemployment insurance is generally carried at the expense of employers. Unemployment insurance shifts the burden of unemployment from the taxpayer at large to industry and business. It also alleviates the burden of financing public assistance for unemployed persons.
The unemployment insurance program was established under Title IX of the federal SOCIAL SECURITY ACT OF 1935 (42 USC 1101). Correlative with that act is the Federal Unemployment Tax Act (FUTA) (26 USC 3301 et seq.) Under this law, each state administers a separate unemployment insurance program that must be approved by the Secretary of Labor based on federal standards (42 USC 503; 20 CFR 640.1 et seq.). Federal standards apply because the state programs are made applicable to areas normally regulated by federal law (under labor, COMMERCE, and general welfare clauses). Special federal rules apply for nonprofit organizations and governmental entities.
Under FUTA, a combination of federal and state taxes is levied upon employers. Although they are imposed as "taxes," the amounts paid are, in reality, akin to "premiums" that are paid for unemployment insurance coverage.
Proceeds from the taxes are deposited in the U.S. Treasury's Federal Unemployment Trust Fund (the Fund) and each state has a separate account in the Fund. The funds are generally invested by the Secretary of the Treasury in government SECURITIES similar to those for social security trust funds. The use of these funds for any purpose other than payment of unemployment benefits is strictly prohibited. (42 USC 1104).
The Fund itself holds revenues in three separate federal accounts:
- The Employment Security Administration Account covers federal and state administrative costs for unemployment insurance and other employment services, such as for veterans. This account also contains federal grants to states under 42 USC 1101 et seq. for UNEMPLOYMENT COMPENSATION administration.
- The Extended Unemployment Compensation Account contains the federal share of revenues which are drawn upon for extended unemployment benefits during periods of high unemployment.
- The Federal Unemployment Account advances moneys to depleted state trust funds to ensure that benefit obligations are met. These funds are repayable by the states to this account.
As long as a state maintains minimum standards required under the federal Act, it remains eligible to participate in the federal-state collaboration that provides it with access to the above funds and grants (in the form of replenishment of exhausted funds, advances, special assistance when economic crises exist, etc.). While states are not required to conform to every federal STATUTORY provision, they may not preempt federal law with respect to those areas where federal law is express. Thus, while state law generally governs eligibility requirements, amounts received, and maximum eligibility periods for benefits, these provisions must not conflict with any expressed federal provisions.
Federal Preemptive Laws
- The Railroad Unemployment Insurance Act (45 USCS 351) expressly governs unemployment compensation for workers in the railroad industry.
- The Trade Act (19 USCS 2271) provides special payments to workers unemployed or facing unemployment as a result of imported goods and products that compete in the domestic market with goods or products produced by the workers' employers. Special federal rules also apply for nonprofit organizations and governmental entities.
Federal Unemployment Tax Act (FUTA)
The FUTA tax is in the form of a payroll tax imposed upon (and paid by) employers. It is not withheld from employee wages. The amount that employers must pay is based on the amount of wages they pay to employees (excluding agricultural and domestic workers). Generally, employers are liable for FUTA taxes if one of the following applies:
- They have paid wages totaling at least $1,500 in any calendar quarter
- They have at least one employee on any given day in each of 20 calendar weeks (the 20 weeks need not be consecutive, and the "one employee" need not be the same person).
Once an employer is liable for FUTA under the above criteria, the employer must pay FUTA tax for the current calendar year as well as the next calendar year. The FUTA tax is currently at 6.2 percent, scheduled to decrease to 6.0 percent in 2008. The FUTA tax is imposed as a single flat rate on the first $7,000 of wages for each employee; no tax liability is incurred beyond the $7,000.
FUTA taxes are reported annually on Form 940, "Employer's Annual Federal Unemployment Tax Return," due every January 31 for the preceding year. On an annual basis, the Secretary of Labor reviews and certifies each state unemployment insurance program to the Secretary of the Treasury. The certification is necessary in order for employers who contribute to state unemployment funds to obtain FUTA tax credits. Employers who pay their state unemployment taxes on time are permitted to claim a credit equal to 5.4 percent of federally taxable wages, which effectively reduces the FUTA tax rate to 0.8 percent (6.2 minus 5.4).
State Unemployment Provisions
State tax rates (for the next calendar year) are proportional to the amount of benefits received in past years by employees drawing from the funds. The taxes, in the form of payroll taxes against the employer, are not deducted from employee wages. States may provide additional unemployment benefits above minimum requirements, e.g. for disabled workers or those with dependents, for which additional taxes may apply.
In order for claimants to receive unemployment insurance benefits (paid weekly), all states generally require that they not have left employment voluntarily without good cause and/or that they were not discharged from employment for "fault" (misconduct). Additionally, states generally require that claimants have met the following qualifying factors in order to receive benefits:
- They have made a claim;
- They have registered for work and reported to an employment office;
- They are capable of doing work and is available to do it;
- They have been totally or partially unemployed for the benefit week;
- They have made reasonable and active effort to secure work for which they are qualified.
The formula used to calculate benefits varies from state to state, but some general principles and terms apply. A "base period" usually refers to the work period (consisting of four to five quarters of annual employment, i.e., there are four calendar quarters in a year) last worked by claimants. The claimants' prior work must have been "insured work," that is, work performed for an employer who paid into the unemployment insurance fund.
ALABAMA: In addition to the above qualifying criteria, Alabama requires that claimants, during the base period, have been paid wages for work equal to or exceeding one and a half times the total of wages for work paid to them in the quarter of the base period in which the total wages were the highest. Persons who have received benefits in a preceding benefit year shall not be eligible to receive benefits in a succeeding benefit year unless, after the beginning of the preceding benefit year, they have earned wages equal to at least 8 times the weekly benefit amount established for them in the preceding benefit year. See Alabama Code 25-4-77.
ALASKA: In addition to the above criteria, Alaska statutes provide that benefits are payable to individuals who have earned at least $1000 during the base period and which amount was paid over at least two of the calendar quarters of the base period. Claimants are disqualified for the first six weeks of unemployment if termination of employment was for miscon-duct. See Alaska Stat. 23.20.350-406).
ARIZONA: In addition to the above criteria, Ariz. Rev. Stat. Ann. 23-601 et seq. provides that benefits are payable for a maximum of 26 weeks and may not exceed one-third of the yearly base pay. CHILD SUPPORT payments are automatically deducted from benefits.
ARKANSAS: In addition to the above criteria, Arkansas statutes provide that claimants must have earned wages of at least 27 times their weekly benefit during at least two quarters of the base period. The unemployment must not be the result of a labor dispute. Claimants are eligible for benefits in the amount of 1/26th of total wages paid during one quarter of the base period in which highest wages were paid. Code Ann. 11-10-100 et seq.
CALIFORNIA: In addition to the above qualifying criteria, California's Unemployment Insurance Code also provides for benefits to persons unable to work because of nonindustrial DISABILITY resulting from illness or injury ("Unemployment Compensation Disability" or UCD).
COLORADO: In addition to the above criteria, Colorado's Employment Security Act (8-70-101) limits the maximum benefit period to 26 weeks. Claimant are ineligible if unemployment was due to a strike in which the claimants had direct interest. Illegal ALIENS are not eligible for benefits. Severance pay may reduce or postpone benefits. Full benefits are available where an employer disregards its own discharge policy (677 P.2d 447).
CONNECTICUT: In addition to the above criteria, Connecticut has a one week "waiting" period. Claimants are disqualified for benefits if they were discharged for committing LARCENY. All employees may be eligible for benefits if they voluntarily quits due to DOMESTIC VIOLENCE, but employers' accounts are not charged for the claim See Section 31-222. et seq.
DELAWARE: In addition to the above criteria, Del. Code Ann, Title 19.3300 et seq. provides that claimants must have earned wages equal to at least 36 times their weekly benefit amount during the base period. Claimants are disqualified for voluntary termination, discharge for good cause, refusal to accept work for which they are reasonably qualified, for strikes, for illegal alien status, for temporary breaks in athletic employment, and INCARCERATION.
DISTRICT OF COLUMBIA: In addition to the above criteria, District of Columbia requires minimum earnings during base period of at least $1,300 in one quarter or $1,950 in two quarters and total wages during base period equal to one and a half times the highest wages in any quarter. See Code Section 46-108. Pregnancy creates no presumption of inability to work. Benefits are denied to illegal aliens and those who fail to attend training or retraining programs.
FLORIDA: In addition to the above criteria, Florida provides for benefits equal to 1/26th of total wages paid during quarter in which highest wages were paid during base period. See Fla. Stat. Ann, Section 443.001 et seq. Since 2000, Florida has been paying an extra five percent of weekly benefit for the first eight weeks. Automatic child support payments are deducted. Employers who must lay off workers may qualify for a state program which permits them to shorten work weeks for employees, who will then qualify for benefits for the time they are not working (443.111(6)).
GEORGIA: No information available. See generally, Georgia Statutes 34-8 et seq.
HAWAII: In addition to the above criteria, Hawaii requires claimants to have earned wages at least five times their weekly benefit amount. Maximum benefit is 2/3 of statewide average weekly wage. Benefits are limited to 26 weeks but may be extended 13 weeks by the state governor. Hawaii has some unusual exemptions; for example, companies that only employ family members who own at least 50 percent of the company are exempt from the statutes. One week waiting period occurs before claimants receive benefits. See Hawaii Rev. Stat. 383-7 et seq.
IDAHO: Follows general requirements; no unusual provisions. See Idaho Code 72-1316 et seq.
ILLINOIS: In addition to the above criteria, Illinois requires that claimants have earned at least $1,600 in wages, of which at least $440 of wages paid during base period must have been paid outside of the calendar quarter in which wages were the highest. Illinois adjusts the amount of benefits according to the number of dependents wage-earners have. (820-405/401 to 405/403). 805 and 820 Ill. Comp. Stat. Ann.
INDIANA: In addition to the above criteria, Indiana law provides that persons retired under compulsory provisions of a COLLECTIVE BARGAINING unit are nonetheless eligible for benefits if otherwise qualified (IC22-2-14-1) See Ind. Code Ann. 22-4-12-2 for benefit rates.
IOWA: No unusual requirements are in effect in addition to the above criteria.
KANSAS: No unusual requirements are in effect in addition to the above criteria. See Kansas Stat. Ann.44-706 for benefits rates.
KENTUCKY: In addition to the above criteria, there is a one week waiting period under Kentucky law. Benefits may not exceed the lesser of 26 times the weekly benefit or one-third of base period wages. See KRS 341.350 et seq.
LOUISIANA: In addition to the above criteria, Louisiana requires a one-week waiting period and earned wages equaling at least one and a half times the wages paid in the calendar quarter in which wages were the highest. Disqualifications include receiving payments under a private PENSION or retirement plan. (Title 23, Section 1600 et seq.)
MAINE: In addition to the above criteria, Maine has a one week waiting period and disqualifies claimants who are receiving pensions, terminal pay, vacation pay, or holiday pay. Claimants are not disqualified if they voluntarily leave work because of illness, spousal transfer, acceptance of another job that failed to materialize, or domestic abuse, if claimants have reasonably attempted to preserve employment. (Title 26, Sections 1191-1193.)
MARYLAND: In addition to the above criteria, Maryland requires that claimants have been paid wages for two calendar quarters that total one and a half times the upper limit of division of highest quarter wages. Additional benefits for up to five dependent children under 16 years of age. Benefits may be extended during periods of high state or national unemployment. See Md. Code Ann., 8-800 to 8-1110.
MASSACHUSETTS: In addition to the above criteria, Massachusetts requires that claimants have earned a minimum of $2000 during base period. The maximum benefits are for 30 weeks or 36 percent of total wages for preceding year, whichever is less. See Mass. Gen. Laws, Ch. 151A.
MICHIGAN: In addition to the above criteria, Michigan law provides that weekly benefits shall be 4.1 percent of claimants' wages paid in calendar quarter in which claimants earned their highest wages, plus $6 per dependent, up to five. Maximum benefit is $300 weekly. See MCL 421.20 et seq. Child support is withheld.
MINNESOTA: In addition to the above criteria, Minn. Stat. Ann. 268.01 et seq. provides that weekly benefit amount is the higher of (1) 50 percent of average weekly wage during the base period up to a maximum of 66 2/3 percent of state's average weekly wage; or (2) 50 percent of average wage during the higher quarter up to a maximum of 50 percent of the state's average weekly wage, whichever is higher. Generally, 26 weeks is the benefit maximum.
MISSISSIPPI: In addition to the above criteria, Mississippi requires that a claimant have earned wages equal to 40 times his/her weekly benefit during two quarters of the base period. Weekly benefit amounts are 1/26th of the total wages for highest quarter of base period, but not more than $165 per week. If weekly benefit computes to less than minimum, individual is not entitled to benefits. See Miss. Code Ann. 71-5-501 et seq.
MISSOURI: In addition to the above criteria, Missouri requires earned wages of at least $1000 in at least one quarter of base period and a one week waiting period. Since 2001, maximum weekly benefit is $250. See Vernon's Ann. Mo. Stat. 288.030 et seq.
MONTANA: In addition to the above criteria, Montana Code Ann. 39-51-2101 et seq. provides that claimants may be required to participate in reemployment service. Maximum benefit is 60 percent of average weekly wage. Maximum benefit weeks depends upon amount of earnings during base period.
NEBRASKA: In addition to the above criteria, Nebraska law establishes an "unemployment benefit" table. Since 1999, individuals must have earned wages of not less than $1600 during two quarters of base period ($800 each quarter) and must have worked. Child is support automatically withheld. See Neb. Rev. Stat.
48.601 et seq.
NEVADA: In addition to the above criteria, Nevada law provides that weekly benefits are equal to 1/25th of total wages during highest wage quarter, with a maximum of 50 percent of state's average weekly wage. See Nev. Rev. Stat. Ann. 612.340 et seq.
NEW HAMPSHIRE: No unusual requirements are in effect in addition to the above criteria. See N.H Stat. Ann. 282-A, Section 31.
NEW JERSEY: In addition to the above criteria, New Jersey statutes permit benefits if claimants have worked at least 20 weeks or earned at least 12 times the state average weekly wage or 1,000 times the
MINIMUM WAGE of the year prior to benefits. (These rules are different for agricultural workers.) Maximum benefits of 26 weeks. See N.J. Stat. Ann. Title 43, Ch. 21.
NEW MEXICO: In addition to the above criteria, weekly benefit is 1/26th of wages in highest quarter. Maximum benefit is for the lesser of 26 times weekly benefit or 60 percent of base period wages. See N.M. Stat. Ann. 51-1-1.
NEW YORK: In addition to the above criteria, New York permits the accumulation of days for the purpose of benefits, with benefit rate based upon claimants' average weekly wages. The maximum weekly benefit is $365. Benefits are available for victims of domestic violence who have left employment for good cause. See N.Y. Labor Laws Section 590 et seq.
NORTH CAROLINA: In addition to the above criteria, North Carolina has substantial PENALTY waiting periods for leaving employment voluntarily or being fired for substantial fault. See N.C. Gen. Stat. 96-01 et seq.
NORTH DAKOTA: In addition to the above criteria, North Dakota has no exceptional or unusual requirements. See, generally, N.D. Cent. Code 52-01-01 et seq.
OHIO: In addition to the above criteria, Ohio has no exceptional or unusual requirements. See, generally, Ohio Revised Code (ORC) 4141.01 et seq.
OKLAHOMA: In addition to the above criteria, Oklahoma requires that claimants have earned at least minimum wage during base period. See Okla. Stat. Ann. Title 40-2-201 et seq.
OREGON: In addition to the above criteria, Oregon requires claimants to have worked for subject employers at least 18 weeks with wages of $1,000. Claimants must have earned six times the weekly benefit amount in base period. Benefit amounts are based on state average weekly covered wages. See Or. Rev. Stat. 657.101 et seq.
PENNSYLVANIA: In addition to the above criteria, Pennsylvania law requires that claimants have earned not less than 20 percent of total base year wages in one or more quarters of the base period. Benefits are based on the greater of either an amount based on highest quarterly wage or 50 percent of full time weekly wage. Benefits are reduced for retirement pensions, severance pay, etc. See Pa. Cons. Stat. Ann.
43.751 et seq.
RHODE ISLAND: In addition to the above criteria, no unusual requirements are in effect. Benefits are available in addition to tuition benefits. See R.I. Gen. Laws 28-42 to 28-48.
SOUTH CAROLINA: In addition to the above criteria, South Carolina requires earned wages in the first four of previous five calendar quarters exceeding 1 1/2 times total of wages paid in highest earnings quarter. See S.C. Code Ann. 41-27-10 to 41-41-50.
SOUTH DAKOTA: In addition to the above criteria, South Dakota requires base period wages (in other than highest quarter) equal to or exceeding 20 times the weekly benefit amount. Weekly benefits are equal to 1/26th of wages paid in quarter of highest earnings. Special formula and waiting period exist for persons leaving employment voluntarily. See S.D. Codified Laws Ann. 61-6-1 et seq.
TENNESSEE: In addition to the above criteria, Tennessee has no unusual requirements. Maximum benefit as of 1999 was $255 weekly. See Tenn. Code Ann. 50-7-101 et seq.
TEXAS: In addition to the above criteria, Texas has a lengthy list of exclusions based on the nature of employment (e.g., insurance agents or solicitors if earnings are solely by commission, newscarriers under age 18, etc.) See Tex. Labor Code, 207.001 et seq.
UTAH: In addition to the above criteria, Utah requires that claimants have earned wages in preceding benefit year equal to at least six times the weekly benefit amount. Weekly benefits are reduced by 100 percent of retirement income attributable to that week. See Utah Code Ann. 35A-4-401 et seq.
VERMONT: In addition to the above criteria, Vermont law provides that claimants be paid one half of average weekly wages, based on 20 weeks of highest earnings during base period. See Vt. Stat. Ann., 21-1330 et seq.
VIRGINIA: In addition to the above criteria, Virginia law requires that claimants have earned wages during the highest two quarters of the base period an amount exceeding that specified in a table contained in Va. Code Ann. 60.2-602.
WASHINGTON: In addition to the above criteria, Washington law provides that weekly benefits are payable in an amount equal to 1/25th of the wages of the two highest average quarters. Maximum benefit is 55 percent of state average weekly wage for prior calendar year preceding June 30. Maximum benefits are lesser of 1/3 of base year earnings or 30 times weekly benefit. See Wash. Rev. Code Ann.
50.01 et seq.
WEST VIRGINIA: In addition to the above criteria, West Virginia requires that claimants have earned at least $2,200 during more than one quarter of base period. Maximum benefit is 66 2/3 percent of state average weekly wage. Alabama requires See W. Va. Code art. 6 et seq.
WISCONSIN: In addition to the above criteria, Wisconsin requires that claimants have earned at least 30 times the weekly benefit during the base period and four times weekly benefit outside of the quarter with the highest wages in the base period. See Wis. Stat. Ann. 108.01 et seq.
WYOMING: In addition to the above criteria, Wyoming has no unique requirements. See Wyo. Stat. Ann. 27-3-101 et seq.
Wage And Hour Laws (Encyclopedia of Everyday Law)
The FAIR LABOR STANDARDS ACT, enacted by Congress in 1938 and amended numerous times since then, requires most employers in the United States to comply with MINIMUM WAGE and hour standards. The law's basic requirements govern the payment of a minimum wage, payment of overtime pay for employees working more than 40 hours per work week, employment limitations for children, and mandated record keeping by employers.
At the end of the nineteenth century, the industrial age was spurring the growth of factories known as sweatshops. Sweatshops routinely employed women, children, and recent immigrants who had no choice but to accept inferior wages and harsh working conditions. Social activists pushed for laws at the state level to pay all workers, regardless of social status or gender, wages that would allow them to maintain an adequate standard of living.
Massachusetts, in 1912, became the first state to enact a law mandating a minimum wage. Other states soon followed suit. Widespread poverty during the Great Depression increased public awareness of the need for wage standards, and by 1938, twenty-five states had enacted minimum wage laws. Some states established commissions to determine the minimum wage based on what the commission perceived to be a "living" wage for employees. Some of these commissions also took into account the employer's financial conditions in determining appropriate wages. Other states simply established flat minimum wage rates for all employees in those states.
Eventually, however, the success of state wage statutes was tempered by court decisions, including a U. S. Supreme Court decision that held state minimum wage laws to be unconstitutional. According to the courts, these laws violated the rights of employers and employees to freely negotiate and form contracts over appropriate wages. President Franklin D. Roosevelt responded by attempting to enact federal legislation granting the president the authority to regulate a minimum wage as part of the federal government's right to regulate interstate commerce. The Supreme Court found President Roosevelt's first attempt at such legislation to be unconstitutional, but the Court upheld his second attempt, the 1938 Fair Labor Standards Act (FLSA), as constitutional.
Fair Labor Standards Act
The FSLA requires that most U. S. workers are entitled to receive a minimum hourly wage. This federally enacted minimum wage changes only when Congress passes a bill and the president signs it into law, which happens periodically in keeping with U. S. economic conditions. When the FSLA was enacted, the minimum wage was 25 cents an hour. In 2002, the minimum wage was $5.15 an hour.
The FSLA also requires that most U. S. workers are entitled to receive one and one half times their hourly rate of pay, even if that rate is above the minimum wage, for hours worked in excess of 40 hours per work week. This is known as overtime. The FSLA also contains child labor restrictions and mandates certain working conditions for children under the age of 18. Finally, to ensure that employers comply with the federal law, the FSLA requires them to keep detailed employment records. The FSLA does not require employers to provide sick or severance pay to employees. It does not require employers to provide employees with vacation time or holidays, fringe benefits, or increases in pay beyond the minimum wage. Employers, however, do have to comply with state employment laws that deal with issues not covered by the FSLA.
Not all employees are protected by the FSLA. Some employees are exempt from minimum wage protections, and some employees are exempt from overtime pay requirements. Employers may try to avoid the FSLA requirements by categorizing their employees as exempt, but courts narrowly construe whether an employee is exempt and place the burden of proof on the employer.
There are numerous examples of employees who are exempt from the protections of the FSLA. Employees who earn more than half of their total earnings from sales commissions are usually exempt from FSLA overtime requirements. Computer professionals who earn at least $27.63 per hour are not entitled to overtime pay, either. Drivers and mechanics whose jobs affect the safety of vehicles that transport people or property are exempt from the overtime pay requirement. Farm workers on small farms are exempt from both minimum wage and overtime pay requirements. Most employees of car dealerships are exempt from overtime pay requirements. Seasonal and recreational employers do not have to comply with minimum wage or overtime requirements of the FSLA. Finally, white collar workersmployees whose job duties are executive, administrative, professional, or involve outside salesre exempt from minimum wage and overtime pay requirements. The FSLA lists numerous other exemptions, as well.
The FSLA protects workers under the age of 18 to ensure that they are safe at work and that work does not jeopardize their health or their ability to receive an education. States also have CHILD LABOR LAWS, some of which are more restrictive than the FSLA. Child workers generally receive the same protections and usually greater protections, than adult workers under the FSLA. The FSLA's child labor provisions do not apply to children under the age of 16 who work for their parents, children who work as actors, children who deliver newspapers, or children who work at home making evergreen wreaths.
Workers under the age of 20 are entitled to receive minimum wage under the FSLA, but during the first 90 days of employment, an employer is allowed to pay these workers a lesser wage of $4.25 per hour. Certain students, apprentices, and disabled workers also may receive less than minimum wage under special allowances by the Department of Labor. Restaurant servers and other workers who receive tips may be paid $2.13 per hour so long as the additional money made in tips adds up to at least minimum wage.
Under the FSLA, workers at least 16 years old may work unlimited hours unless the job is deemed hazardous by the Secretary of Labor. Workers who are 14 or 15 years old may not work during school hours except in career exploration programs through the school. They may not work before 7 a.m. or after 7 p.m. during school months; they may not work after 9 p.m. from June 1 through Labor Day. Workers who are 14 or 15 years old may not work more than three hours per school day, more than eight hours per non-school day, more than eighteen hours per school week, or more than forty hours per non-school week. Children who work as professional sports attendants are exempted from the maximum hours requirements but still may not work during school hours.
Workers who are 14 or 15 years old may not work in certain occupational areas, such as manufacturing, mining, food processing, transportation, warehousing, construction, or any occupation deemed hazardous by the Secretary of Labor. These workers may work in most retail, food service, and gasoline service occupations but may not perform work in an engine or boiler room, maintain or repair machines or equipment, work on ladders or scaffolds or perform outside window washing, cook or bake, operate food slicers or grinders, work in freezers or meat coolers, load or unload goods from trucks or conveyors or railroad cars, or work in warehouses.
Children under the age of 18 are prohibited from driving occupations, but workers who are 17 may drive cars and trucks as part of their work on an occasional and incidental basis. Driving must take place during daylight hours, and the worker must hold a valid state license to drive and have no record of moving violations. The car or truck must have a seat belt, and the worker must use the seat belt when driving. The driving may not include towing cars or other vehicles, route deliveries or sales, transporting more than three people, urgent deliveries, or more than two trips away from the employer per day.
Employers who violate the FSLA's child labor protections are subject to civil penalties of up to $10,000 per child laborer. The Wage and Hour Division of the Department of Labor's Employment Standards Administration enforces the FSLA and has investigators stationed throughout the country to ensure that employers comply with the law.
Some employers attempt to avoid the requirement to pay one and a half of an employee's hourly rate for overtime hours. The FSLA is very strict in defining what constitutes overtime and requires that anytime an employer requires or allows the employee to work, that work counts toward the employee's weekly hours. This means that even if an employer does not require an employee to work, but the employee works anyway, those hours count toward the overtime determination. For example, assume that the manager of a copy center asks her employee to work on a copying project. The employee's shift ends at 7 p.m., so the manager tells him that he can leave work when his shift ends and can then complete the project the following day if necessary. Nevertheless, the employee continues to work on the project after his shift ends and manages to complete it that evening. His efforts, however, take an additional three hours beyond the forty hours he has already worked that week. The employee is entitled to receive three hours of overtime pay, at one and a half times his usual hourly wage, for the additional work he did. If the employer knows or has reason to believe that an employee is continuing to work and if the employer benefits from the work being done, that time counts toward the overtime calculation.
Also included in the overtime calculation is time spent by an employee correcting mistakes, even when the employee does so voluntarily. Time spent by an employee merely waiting for something to do or doing nothing counts toward hours worked, assuming the employer requires the employee to be present. Work performed by the employee at home or at another location other than the employer's premises also counts toward hours worked.
State Wage and Hour Laws
ALASKA: State minimum wage is $5.65. Workers employed as school bus drivers receive at least two times the Alaska minimum wage.
ARKANSAS: Employers of workers who receive board, lodging, apparel, or other items as part of the worker's employment may be entitled to an allowance for such board, lodging, apparel or other items, not to exceed 30 cents per hour, credited against the minimum wage.
INDIANA: An employer must pay a base wage of $2.13 per hour for tipped employees (any employee who receives more than $30 a month in tips) and the employer must pay the difference between the base wage and federal minimum wage if applicable.
MICHIGAN: Workers under the age of 18 are entitled to a 30 minute meal break after five hours of work. Michigan law does not require a meal break for workers over the age of 18.
NEW HAMPSHIRE: An employer cannot require a worker to work more than five hours without a thirty minute meal break. An employee who reports to work at the employer's request is entitled to be paid a minimum of two hours wages.
NEW JERSEY: Workers under the age of 18 are entitled to a 30 minute meal break after five hours of work. New Jersey law does not require a meal break for workers over the age of 18.
OREGON: State minimum wage is $6.50 per hour. State law prohibits employers from taking a credit against minimum wage for tips. Employees are entitled to thirty minute meal periods for work shifts six hours or longer, and ten minute work breaks during each four hour work shift.
VERMONT: State minimum wage is $6.25 per hour. State minimum wage for restaurant servers is $3.44 per hour with a maximum tip credit allowance of $2.81 per hour.
WEST VIRGINIA: Minors 14 or 15 years of age must receive work permits before working. The permit is forwarded to the Division of Labor, which has the responsibility of ensuring that minors are not working in hazardous or unsuitable conditions.
WASHINGTON: State minimum wage is $6.90 per hour. No employer may employ a minor without a work permit from the state along with permission from the minor's parent or GUARDIAN and school.
Child Labor Bulletin 101. U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division WH-1330. Revised March 2001.
West's Encyclopedia of American Law. West Group, 1998.
U. S. Bureau of Labor Statistics, Office of Compensation and Working Conditions
2 Massachusetts Avenue NE
Washington, DC 20212-0001 USA
Phone: (202) 691-6199
U. S. Department of Labor
200 Constitution Avenue NW
Washington, DC 20210 USA
Phone: (866) 487-2365
Whistleblowers (Encyclopedia of Everyday Law)
The protection of whistleblowers exposing FRAUD or wrongdoing perpetrated by individuals or CORPORATIONS has been an issue for centuries. Under English COMMON LAW, suits brought on behalf of the government by individuals alleging fraud were known by the Latin phrase describing them, "qui tam pro domino rege quam pro si ipso in hac parte sequitur," meaning "who sues on behalf of the King as well as for himself."
The first STATUTE to protect whistleblowers in the United States was the federal False Claims Act, inspired by the corruption and fraud that resulted from the Civil War. Passed in 1863, the act allowed private parties to bring suits against those corporations or individuals trying to DEFRAUD the government, with the bringer of the lawsuit entitled to half the recovery from the fraud, which included a $2,000 fine for each violation and damages amounting to double the loss from the fraud.
States also began to pass their own versions of whistleblower laws. By the 1980s, such legislation had become common at the state and federal level, and in 1986 the federal False Claims Act was strengthened to give whistleblowers more rights. Despite being unpopular with businesses, the federal False Claims Act has withstood Supreme Court scrutiny and today serves as the most important of the many federal and state laws protecting whistleblowers.
State and federal whistleblower statutes generally fall into two categories: those that encourage whistleblowers by giving them some form of compensation for their action, such as the False Claims Act, and those that protect the whistleblower from retaliation, which constitute the majority of state and federal statutes. As of 2002, all 50 states provide some sort of whistleblower protection.
Federal Whistleblower Statutes
Federal whistleblower statutes are included in a wide range of laws, governing activities ranging from employee safety to environmental protection. The first of all federal whistleblower statutes, and still considered the most important, is the federal False Claims Act.
False Claims Act
The 1863 federal False Claims Act (FCA) has gone through many changes. The act was revised in 1986, which strengthened it and made it the prime federal whistleblower statute. FCA reports of fraud have increased from an average of six per year pre-revision to 450 per year in 1998.
Lawsuits brought under the FCA are known as "qui tam" actions. Under the 2002 FCA, a successful lawsuit brought by a whistleblower will net the whistleblower between 25 and 30 percent of all money recovered by the action if the government decides not to join in the lawsuit. If the government does join the lawsuit, the whistleblower can net between 15 and 25 percent of the total proceeds of the suit. This is in addition to reasonable expenses and attorneys fees.
Under the False Claims Act, a business found guilty of defrauding the federal government can be fined from a minimum of $5,000 to a maximum of $10,000 for each violation. In addition, a business found liable under the act must pay three times the amount of damages that the government sustains as a result of the violation. There is a STATUTE OF LIMITATIONS under the act of 10 years. An employee can also file a separate lawsuit if the person is fired, demoted, or harassed at work as a result of bringing an FCA action against the employer.
FCA lawsuits can be very lucrative. Since 1986, over 3,000 FCA cases have been filed and about $3 billion has been recovered. The average recovery in an FCA case is $5.8 million, and the average whistleblower's reward has been about $1 million. The government intervenes in only 21 percent of the FCA cases. The only limitations the FCA puts on these types of suits is that a member of the armed forces is precluded from asserting a claim against another member of the armed forces.
FCA cases generally include three common elements in order to prove fraud under the act. The DEFENDANT must present a claim for payment to the federal government, or the defendant must cause a third party to submit a claim; that claim must be made knowingly; and the claim must be false or FRAUDULENT.
Claim is defined under the FCA as any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
"Knowingly" is defined as actual knowledge of the false information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the truth or falsity of the information.
The Supreme Court recently upheld the FCA. In the 2000 case of Vermont Agency of Natural Resources v. United States, the high court determined that citizens have standing to file whistleblower suits under the act, though the court also ruled that states and their agencies are not liable under the provisions of the act.
Other Federal Laws
Other federal laws with whistleblower provisions generally take a different approach to whistleblowers than the FCA, providing protections to those who act as whistleblowers rather than incentives. These statutes prohibit any retaliatory discharge of or DISCRIMINATION against the whistleblower and punish violators of the statute.
Within this context, the statutes can take different approaches to protecting the worker. Some provide the whistleblower with a private cause of action against the employer and allow the person to bring suit himself. These statutes include: the Clean Air Act, the Energy Reorganization Act, the Federal Deposit Corporation Improvement Act, and the Vessels and Seamen Act.
Other federal laws require the Secretary of Labor or other government official to bring action in a case of retaliatory discharge or discrimination against a whistleblower. Those statutes include: the Age Discrimination in Employment Act, the Civil Service Reform Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Employee Retirement Investment SECURITIES Act, the Federal Surface Mining Act, the Family and Medical Leave Act, the Job Training and Partnership Act, the Migrant and Seasonal Agricultural Worker Protection Act, the Mining Safety and Health Act, the Occupational Safety and Health Act, the Safe Drinking Water Act, the Solid Waste Disposal Act, the Surface Transportation Assistance Act, the Toxic Substance Control Act and the Water Pollution Control Act. These acts do not allow the whistleblower to bring his or her own private cause of action.
Generally speaking, these acts cover whistleblowers when they file a complaint or institute or cause to be instituted any proceeding under or related to the law the provision exists under, or when the whistleblower has testified or is about to TESTIFY in any proceeding related to the law. If an employer is determined to be liable for discharging or discriminating against an whistleblower employee under one of these laws, the employer can often be fined and required to reinstate the employee to his or her former position; to pay COMPENSATORY DAMAGES; or take other appropriate actions to remedy any past discrimination.
State Whistleblower Statutes
While some states had whistleblower statutes during the early part of the twentieth century, most of the action in regards to state legislation to protect whistleblowers occurred in the latter half of the century. In the 1980s, for example, 15 states passed general whistleblower statutes, and many state courts further developed a PUBLIC POLICY exception to the at-will employment doctrine for whistleblowers. The result is that state courts have become a major arena for whistleblower cases.
General State Whistleblower Statutes
As a rule, state whistleblower statutes differ from federal whistleblower statutes in several significant ways. The first is that with only a couple exceptions, state whistleblower statutes do not follow the compensation model of the federal False Claims Act. Those exceptions are Illinois, Florida, Oregon, South Carolina, and Wisconsin. Only Illinois and Florida provide compensation for whistleblowers anywhere near what the federal law provides, with the other three states providing less satisfactory compensation.
State whistleblower statutes instead provide protection from retaliation for WHISTLEBLOWING. Unlike the federal governments, the majority of state governments have whistleblower statutes that generally protect all employees who report violations of the law by their employers, in addition to having whistleblower statutes covering the violations of specific laws. In many states, these general whistleblower protections are limited to public employees, although other states have protections for both private and public employees.
States with general whistleblower statues that protect both private and public employees include: Arizona, California, Connecticut, Florida, Hawaii, Illinois, Louisiana, Maine, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, and Tennessee.
States with general whistleblower statutes that protect only public employees include Alaska, Colorado, Delaware, District of Columbia, Georgia, Idaho, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming.
Many of the state laws provide employees with a private cause of action, providing another contrast with federal whistleblower statutes. This allows the employee to sue directly in the courts, rather than having to go through an agency of the state.
Public Policy Exception
In addition to specific statutes protecting whistleblowers, many state courts have enunciated a public policy exception for whistleblowers to the at-will employment doctrine which allows employees who are not under contract to be dismissed by their employers at any time.
The public policy exception for whistleblowers usually holds that employers should not be able to use their power as employers to subvert public policy as established by the legislatures or the courts. Employees who are fired, demoted, or harassed for refusing to violate a law, rule or regulation, or who report a violation of such, can sue their employer under this theory.
State courts can read this public policy exception either narrowly or broadly, depending on the particular court. More conservative courts may insist on showing the act of the employer caused actual harm to the PUBLIC INTEREST before allowing a public policy exception. But some state courts will award PUNITIVE DAMAGES if they find a strong public policy violation.
When federal and state whistleblower laws conflict, the federal laws preempt the state laws. Because states tend to have traditionally been responsible for employment issues, courts have been leery of finding preemption when it comes to whistleblower statutes. However, in some instances they have found such preemption exists. The test seems to be whether the federal law concerns an area of strong enough federal concern that it did not leave room for state regulation. Preemption cases involving whistleblower statutes have yielded mixed results over the past two decades.
State-by-State Guide to Whistleblower Coverage
Besides statutes protecting whistleblowers in general, most states protect whistleblowers in specific areas, such as employment of minors, abuse of children, nursing home violations, or wage and hour violations. Whether the whistleblower is protected in a specific area depends on the state.
The following is a state-by-state guide to some of the different areas where whistleblowers are protected if they report violations in those areas:
ALABAMA: Child labor violations
ALASKA: Occupational safety and health violations, the Alaskan Railroad Company violations, CHILD CARE facilities violations, assisted living homes violations, legislative employees violations
ARIZONA: Water quality control violations, occupational safety and health violations
ARKANSAS: CIVIL RIGHTS violations, fair housing violations, long term care violations
CALIFORNIA: State universities violations, savings associations violations, health care facilities violations, elderly care facilities violations, occupational safety and health violations, toxic substances violations, fraudulent unemployment actions violations, mental health facilities violations
COLORADO: MINIMUM WAGE law violations, false disclosures to the state violations
CONNECTICUT: Environmental violations, information to auditors or public accountants violations, child care violations, violations committed by leaders or employees of a foundation violations, civil rights violations, COLLECTIVE BARGAINING for state employees violations, public schools violations, nursing homes violations, minimum wage violations, Labor Relations Act violations, CHILD ABUSE violations
DELAWARE: Public and private schools violations, nursing homes violations, civil rights violations, workers compensation fraud violations, long term care facilities violations, child labor violations, minimum wage violations, firefighters violations, public works contractors violations, hazardous chemical control
DISTRICT of COLUMBIA: Procurement issues violations, discrimination and civil rights violations, unfair labor practices violations, workers compensation fraud violations, minimum wage violations, occupational safety and health violations, long term care facilities violations
FLORIDA: Child abuse violations, long term care facilities violations, continuing care facilities violations
GEORGIA: Fraud in state programs violations, unfair labor practices violations, gender discrimination in minimum wage laws violations
HAWAII: Unfair labor practices violations, elder care violations, minimum wage laws violations, civil rights violations, occupational safety and health violations
IDAHO: Sanitation violations on farms violations, fair wage law violations, environmental protection violations, PCB waste disposal violations, minimum wage laws violations, state HUMAN RIGHTS law violations, long term care facilities violations
ILLINOIS: Field sanitation for agricultural workers violations, prevailing wage law violations, disclosures by transportation authority workers violations, civil rights laws violations, migrant worker conditions violations, unfair labor practices violations, public and private schools violations, elder care violations, nursing home facilities violations, minimum wage laws violations, equal pay laws violations, occupational safety and health violations, toxic substances violations
INDIANA: Elder care violations, health care facilities violations, long term care facilities violations, education violations, political subdivisions violations
IOWA: Collective bargaining violations, public health facility personnel violations, civil rights violations
KANSAS: Reporting disease violations, child abuse violations, elder care violations, working conditions violations
KENTUCKY: Occupational safety and health violations, long term facilities violations, firefighters violations
LOUISIANA: Health care providers violations, lead hazard reduction licensing of certification violation violations, insurance code violations, hospitals violations, long-term care facilities violations, environmental laws violations
MAINE: Human rights law violations, occupational safety and health violations, employment practices violations, state universities violations, judicial branch violations, agricultural violations, public utility violations
MARYLAND: Occupational safety and health violations, civil rights violations
MASSACHUSETTS: Domestic service violations, health care violations, asbestos ABATEMENT violations, hazardous substances violations, child care violations, minimum wage violations, civil rights violations
MICHIGAN: Adult care provider violations, civil rights violations, long-term care facility violations, occupational safety and health violations
MINNESOTA: Child care facility violations, UNFAIR LABOR PRACTICE violations, civil rights violations, occupational safety and health violations, health services violations, asbestos abatement violations
MISSISSIPPI: Workers compensation violations, vulnerable adult violations
MISSOURI: Nursing home violations, public health violations, Department of Correction violations, mental health facility violations, in home care provider violations, long term care facility violations
MONTANA: Unlawful discrimination violations
NEBRASKA: Occupational safety and health violations, unlawful discrimination violations, Industrial Relations Act violations, nursing home violations
NEVADA: Long term care facility violations, occupational safety and health violations, mental health care facility violations
NEW HAMPSHIRE: Hazardous waste law violations, human rights law violations, asbestos management and control violations, elder care violations, dog and horse racing facility violations, toxic substance control violations, child care facility violations
NEW JERSEY: Ski tow lift and tramway violations, hazardous substance violations, civil rights violations, child abuse violations, occupational safety and health violations, minimum wage violations, elder care violations
NEW MEXICO: Long term care facility violations, residential care facility violations, occupational safety and health violations, radiation control violations
NEW YORK: Civil rights violations, elder care facility violations, occupational safety and health violations, minimum wage violations, Labor Relations Act violations, toxic substances control violations, health care facility violations
NORTH CAROLINA: Long term care facility violations, violations of state law by department, agency or local political subdivision
NORTH DAKOTA: Child abuse and welfare violations, adult care facility violations, mentally and physically handicapped violations, minimum wage law violations, long-term facility care violations, agency misuse of funds violations
OHIO: Long term care facility violations, child care facility violations, minimum wage law violations, nursing home violations, health care facility violations, abuse of mentally handicapped adult violations
OKLAHOMA: Children's group home violations, civil rights violations, violations occurring in group homes for person with developmental or physical disabilities, child abuse violations, foster care violations, occupational safety and health violations, nursing home violations
OREGON: Adult care facilities violations, long term care facilities violations, collective bargaining violations, occupational safety and health violations, civil rights violations
PENNSYLVANIA: Occupational safety and health violations, radioactive waste violations, Community Right to Know Act violations, toxic substances violations, civil rights violations, seasonal farm workers rights violations, public utility company violations
RHODE ISLAND: State hospital violations, long-term care facility violations, asbestos abatement violations, insurance company violations, HMO violations, nonprofit hospital violations
SOUTH CAROLINA: Occupational safety and health violations, long-term care facility violations
SOUTH DAKOTA: Civil rights violations, collective bargaining violations
TENNESSEE: State educational system violations, nursing home facility violations, child care facility violations, mental health and DISABILITY facilities violations, adult care facilities violations, minimum wage violations, occupational health and safety violations
TEXAS: Agricultural laborer violations, worker health and safety violations, immediate-term care facility violations, treatment facility violations, hospital and health care facility violations
UTAH: Minimum wage law violations, occupational safety and health violations, long term care facility violations
VERMONT: Occupational safety and health violations, POLYGRAPH Protection Act violations, fair employment practices violations, state labor practices violations, long term care facilities violations
VIRGINIA: Occupational safety and health violations, adult care facilities violations, child welfare protection violations, nursing home facilities violations
WASHINGTON: Agricultural laborer violations, long-term care facility violations, minimum wage law violations, nursing home violations, state hospital violations
WEST VIRGINIA: Miners health, safety and welfare protection violations, nursing home violations, personal care home violations, residential care violations, asbestos abatement violations, occupational safety and health violations, equal pay law violations, minimum wage law violations
WISCONSIN: Residential care facility violations, long-term care facility violations, rural medical center violations, collective bargaining violations, solid waste facility violations
WYOMING: Long-term care violations, equal pay act violations, occupational safety and health violations
"Bringing Rogues to Justice: The Qui Tam Provisions of the False Claims Act," Androphy, Joel, Adam Peavy, Texas Bar Journal, February 2002.
"The State of State Whistleblower Protection." Callahan, Elletta Sangrey, Terry Morehead Dworkin, American Business Law Journal, Fall 2000.
"State Whistleblower Statutes and The Future of Whistleblower Protection." Vaughn, Robert G., Administrative Law Review, Spring 1999.
"Silencing the Whistleblower: The Gap Between Federal and State Retaliatory Discharge Laws." O'Leary, Trystan Phifer, Iowa Law Review, January 2000.
National Whistleblower Center
P.O. Box 3768
Washington, DC 20007 USA
Phone: (202) 342-1902
Fax: (202) 342-1904
Primary Contact: Kris Kolesnik, Executive Director
Office of Administrative Law Judges: United States Department of Labor
Suite 400 North, 800 K Street, NW
Washington, DC 20001-8002 USA
Phone: (202) 693-7300
Fax: (202) 693-7365
Primary Contact: P.J. Soto, Director, Office of Program Operations
U. S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210 USA
Phone: (866) 487-2365
Primary Contact: Elaine Chao, Secretary of Labor
Workers' Compensation (Encyclopedia of Everyday Law)
WORKERS' COMPENSATION is a system that requires employers, typically through their insurance companies, to pay lost wages, medical expenses, and certain other benefits to employees who are injured on the job. Because employers pass on the costs of workers' compensation benefits or insurance premiums in the pricing of their products, consumers ultimately fund the workers' compensation system.
Workers' compensation is different from other types of torts in that it is not based on fault or NEGLIGENCE. A worker who is injured due to her own negligence or that of her employer typically is entitled to the same workers' compensation benefits as a worker whose injury did not result from negligence at all. The idea behind workers' compensation is not to right a wrong or punish negligence; rather, it is a way to protect employers from negligence lawsuits and injured workers from destitution. The goal is to return injured employees to work efficiently and economically without damaging the employer's business.
Workers' compensation is legislated by every state, and the laws vary among jurisdictions but carry many of the same features. An employee who sustains an occupational disease or PERSONAL INJURY arising out of and in the course of employment is entitled automatically to certain benefits. These benefits may include lost wages, payment of medical treatment, provision of vocational rehabilitation or job placement assistance, and in the case of an employee's work-related death, benefits to the employee's dependents. Some workers, such as independent contractors, are excluded from workers' compensation protection.
Workers' compensation came about in the United States in the early 1900s, a product of the industrial age and a result of increasing numbers of job-related injuries and deaths. Until the development of workers' compensation laws, workers had little or no recourse against their employers for injuries sustained on the job. When job injuries led to the inability to work and the inability to pay for medical care, these workers frequently were left destitute.
The system of workers' compensation grew from the law of vicarious liability, an English law developed in approximately 1700. The law of vicarious liability made a master or employer liable for the negligent acts of a servant or employee. An 1837 English case, Priestly v. Fowler, modified the law of vicarious liability with the fellow servant exception, which relieved a master or employer of liability for a negligent employee who caused injury to a co-employee. Following the example set in Priestly, U. S. courts continued to modify the law of vicarious liability and provide the employer with greater protections against liability resulting from negligence. The doctrine of assumption of the risk presumed, often incorrectly, that employees could refuse dangerous job assignments, thereby relieving the employer of liability when those job assignments caused injury or death. Employers could also rely on the defense of contributory negligence, which completely absolved them of liability when the employer's negligence along with the employee's negligence caused his injury.
Workers were left with inadequate remedies against their employers for injuries resulting from work. At the same time, the industrial age was spawning an increase in work injuries. States began to recognize a problem by the end of the nineteenth century and looked to the compensation systems of other countries for guidance. In 1884, Germany, with its socialist traditions, had developed a compensation system whereby employers and employees shared the cost of subsidizing workers disabled by injury, illness, or old age. Next was England, which in 1897 developed a similar system called the British Compensation Act. Finally, in 1910, representatives from various states met in Chicago and drafted the Uniform Workmen's Compensation Law. This uniform law was not widely adopted, but states used it as a model to draft their own workers' compensation statutes. Most states had such laws in place by 1920, and when Hawaii passed its STATUTE in 1963, all fifty states had workers' compensation laws.
Workers' compensation is a no-fault law, meaning that it is irrelevant whether the employer was not negligent or whether the employee was negligent. No-fault law differs from most types of personal injury lawsuits, which require the injured party to prove the negligence of another party before recovering money and which allow a DEFENDANT who was not negligent to escape liability.
The rationale behind a no-fault workers' compensation system can be illustrated by imagining what would happen without it. Assume, for example, that an employer owned a loading dock and instructed its employees how to safely lift heavy merchandise on the dock, requiring them to use a forklift to lift any carton weighing more than 100 pounds. A worker, hurrying to complete his shift, negligently ignored the forklift requirement and attempted to lift a carton weighing 110 pounds and badly injured his back as a result. He had to undergo surgery and became disabled from working at all for six months.
Without workers' compensation, society would have essentially two different options in dealing with this injured worker. It could decline any assistance and force the worker to fund his own medical care and unemployment, which could be impossible and could leave him destitute. Or, it could provide government assistance such as MEDICAID, welfare, or food stamps. This option would guarantee the injured worker's survival, but at the expense of local taxpayers regardless of any ties to the employer or injury.
With workers' compensation, the injured worker receives an income and payment for medical care from a private source rather than at government, or taxpayer, expense. It is not the goal of workers' compensation to punish or hurt the employer, and that is why state laws require employers either to establish a self-insured fund or to buy workers' compensation insurance. Employers fund the costs of the system but pass those costs along to the consumers of the products or services that cause or contribute to the worker's injury. The goals of the workers' compensation system are therefore accomplished: the worker retains his dignity, receives appropriate financial and medical benefits, and the consumer becomes the ultimate source of payment.
Third Party Negligence
In exchange for workers' compensation protection, an injured worker loses the right to sue the employer under the COMMON LAW for negligence. An injured worker retains the right, however, to sue a third party whose negligence caused or contributed to the worker's injury, even if the worker receives workers' compensation. A common example of this involves a sales employee whose job duties include driving to customers throughout a certain territory. If that employee, while making a sales call, is injured by a negligent motorist who runs a red light, the employee is covered by workers' compensation but can additionally sue the motorist under a common law tort theory. If the worker recovers money from the negligent third party motorist, the worker must repay the employer or insurer who paid workers' compensation benefits and keep only what is left. In some jurisdictions, the employer or insurer paying workers' compensation benefits may sue a negligent third party on behalf of an injured worker with the hopes of recovering part or all of those benefits from the third party. This is known as subrogation.
Workers' compensation disputes in most states are resolved in an administrative court rather than a judicial court. This is in keeping with the goal of returning the injured worker to productive employment quickly and efficiently. Workers' compensation courts often follow their own rules of procedure and EVIDENCE, and the administrative system typically is more relaxed and speedy than the judicial system. As with judicial courts, parties can represent themselves but frequently hire attorneys for representation.
Workers' compensation laws require employers to either be self-insured, meaning they must have enough verifiable financial resources to be able to pay workers' compensation benefits directly to their injured employees, or to purchase private workers' compensation insurance. Many major insurance companies in the United States offer workers' compensation policies in various states. Other insurance companies are smaller and may provide coverage in only one or a few states. Some states choose to fund their own insurance companies, either as the state's exclusive provider or in competition with other private insurers.
Various types of injuries are covered by workers' compensation. Perhaps the most typical type of injury involves a specific trauma or event; for example, a painter who falls off a scaffold or a car mechanic who injures his back after lifting an engine. Another type of injury is a cumulative trauma injury, an injury caused by repetitious work over time. An example of cumulative trauma injury is carpal tunnel syndrome caused by using a computer keyboard. A third type of compensable injury is occupational disease, and an example of that would be lung disease caused by exposure to asbestos at work.
Mental illness caused by work is compensable in some, but not all, jurisdictions. Mental illness such as stress, anxiety, or depression, even when caused by work, is not compensable in most states. However, mental illness that accompanies a work-related physical injury is compensable in most states. For instance, a nurse who develops depression related to his work in an emergency room typically would not be entitled to workers' compensation, but a nurse who is attacked and physically injured by a patient and as a result develops anxiety could receive workers' compensation benefits for the physical as well as the mental injury in most states.
Injuries are deemed to be work-related and compensable under workers' compensation if they arise out of and in the course of employment. The requirement that the injury arises out of employment ensures a causal relationship between the injury and the job, and it is usually the employee's burden to prove that an increased risk of the job caused a compensable injury.
There are three general categories of risks that determine whether an injury is compensable. The first type of risk is one that is associated directly with the employment, such as a when a roofer falls off a roof. An injury like this clearly arises out of employment and is always compensable.
The second category of risk involves personal risk. An example of personal risk is an employee with high blood pressure who suffers a stroke while on the job. Assuming nothing on the job caused the stroke, or assuming the stroke would have occurred notwithstanding the employment, the stroke would be considered personal rather than arising out of employment. Purely personal risks are not compensable.
It is more difficult to determine compensability with the third category of risk called neutral risk. Neutral risks are those that are neither distinctly personal nor distinct to the employment. Examples of neutral risks include a worker who has an allergic reaction to a bee sting sustained while on the job, or an employee who is struck by lightening while on the job. Whether neutral risks are compensable depends on the JURISDICTION and the fact surrounding the injury and the job duties. In general, an employee trying to collect workers' compensation must demonstrate that the job increased the risk of the injury and that the risk was greater than that to which the general public was exposed. The risk of being injured by lightning, for example, is greater for an employee working on the top of a metal communication tower than it is for the general public. Therefore, a lightning strike would be a compensable injury for that employee. ASSAULT is another neutral risk injury. If a worker is assaulted on the job and injured, courts generally look at whether the nature of the job increased the risk of assault, such as the case of a prison guard. If an argument led to a workplace assault, the court would determine whether the argument was work-related or personal. Other common forms of neutral risk injuries include sunstroke, frostbite, heart attacks, and contagious diseases.
To be compensable, the injury must not only arise out of, but also in the course of, employment. This means that the injury must occur at the place of employment, while the employee is performing the job and within the period of employment. Employees who are injured while traveling to or from their jobs typically are not covered by workers' compensation, although there are exceptions to that rule.
Types of Benefits
There are two general categories of workers' compensation benefits, medical and indemnity. Medical treatment that is medically reasonable and necessary and serves to cure or relieve the effects of the injury is compensable. Disputes may arise over the kind of treatment the injured worker receives, and courts and legislators try to strike a balance between the patient's right to select medical care and the employer's right to curb excessive or unnecessary treatment.
Indemnity benefits are those that attempt to compensate the injured employee for lost earnings or earning capacity caused by the work injury. Some injured workers never lose time from work and may be entitled only to medical benefits. Other injured workers are out of work temporarily and receive temporary total DISABILITY payments, usually twothirds of the worker's average wage. Injured workers who are able to return to a job only part time or at a reduced wage receive temporary partial disability payments, which supplement the worker's reduced paychecks. Workers who sustain injuries that cause permanent disability are entitled to permanent partial disability payments if they are able to return to work. The calculation of permanent partial disability payment varies among states but usually depends on a disability rating given by a doctor. If a worker is permanently precluded by a work injury from ever working again, that worker is deemed permanently and totally disabled and may receive workers' compensation benefits until retirement or death. When a work injury causes death, most states require the payment of dependency benefits to the employee's spouse, children, or both.
The workers' compensation system is criticized at times for being outdated in a post-industrial age world. Workers' compensation premiums and expenses drive up the cost of products, and the system is made more expensive by FRAUD and LITIGATION. Disputes often arise between employers and employees regarding the legitimacy of workers' compensation claims. Yet proponents of the system say it is effective in returning injured workers to work and that it promotes safe workplaces.
State Workers' Compensation Laws
ALABAMA: For temporary or permanent total disability, an injured worker receives 66 2/3 percent of the wage with a minimum and maximum wages established by law. The employer selects the employee's physician.
ARIZONA: Disability rate is 66 2/3 percent of the wage with no minimum weekly payments but maximum payments established by law. The employee selects the physician.
CALIFORNIA: A state agency oversees the selection of the physician.
DISTRICT OF COLUMBIA: The employee selects the physician from a list created by the District of Columbia.
FLORIDA: After employee reaches maximum medical improvement, a $10 co-payment is required to be paid by the employee for all medical services.
GEORGIA: Maximum period of temporary total disability payments is 400 weeks.
ILLINOIS: No limit on duration of temporary total disability payments.
IOWA: Disability rate for temporary or permanent total disability is 80 percent of "spendable earnings."
KANSAS: Temporary total disability capped at $100,000. Permanent total disability capped at $125,000. Workers' compensation benefits subject to offset for unemployment and social security benefits.
MASSACHUSETTS: Disability rate is 60 percent of wage.
MISSISSIPPI: Maximum period of temporary disability is 450 weeks. Cap on temporary total disability is $131,787. Cap on permanent total disability is $136,507.
NEVADA: Injured worker can waive the right to workers' compensation.
NEW YORK: Disability rate is 66 2/3 percent of wage. Employee selects physician from state's list of workers' compensation physicians.
OREGON: Duration of temporary disability payments is duration of disability.
TEXAS: Employers are not required to purchase workers' compensation insurance.
WEST VIRGINIA: State funded insurer is the exclusive workers' compensation insurer in West Virginia.
U. S. Department of Labor
200 Constitution Avenue NW
Washington, DC 20210 USA
Phone: (866) 487-2365