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1、Everything You Ever Wanted to Know About Employment Law (But Didnt Want to Pay a Lawyer to Ask),Todays Agenda,Official Disclaimer,SMARTEST HR PERSON IN THE UNIVERSE QUIZ SHOW,Smartest HR Person in the Universe QUIZ SHOW,(Source: Fulbright & Jaworski),(Source: EEOC),lawsuits lawsuits lawsuits,$317,03
2、2 (Source: Jury Verdict Research),Smartest HR Person in the Universe QUIZ SHOW,Smartest HR Person in the Universe QUIZ SHOW,lawsuits lawsuits lawsuits,lawsuits lawsuits lawsuits,Smartest HR Person in the Universe QUIZ SHOW,(Sources: Consumer Reports, V, The Wall Street Journal, Challenger, Gray harm
3、on.ie),Smartest HR Person in the Universe QUIZ SHOW,(Sources: WorkForce Software, Harris Interactive, Workplace Power Outage Survey, Sage Software Survey, Urban Mobility Report, Business Week, Families and Work Institute, Centers for Disease Control and Prevention, The New York Times),(Source: Natio
4、nal Safety Council),medical medical medical,Smartest HR Person in the Universe QUIZ SHOW,wage & hour wage & hour wage & hour,Smartest HR Person in the Universe QUIZ SHOW,Smartest HR Person in the Universe QUIZ SHOW,Smartest HR Person in the Universe QUIZ SHOW,(Source: Right Management),Toledo HR Ass
5、ociation,60% of employees intend to pursue new job opportunities as the economy improves,LOVE,STAY OUT OF JAIL TO DO LIST,EMPLOYMENT LAW SING-A-LONG,96,THANK YOU,EMPLOYMENT LAW TOOL BOX,Employment Law TOOL BOX,Alphabet Soup Glossary,AAA = American Arbitration Association ADA = Americans with Disabil
6、ities Act ADEA = Age Discrimination in Employment Act ADR = Alternative Dispute Resolution BFOQ = Bona Fide Occupational Qualification CBA = Collective Bargaining Agreement CDHP = Consumer Driven Health Plan COBRA = Consolidated Omnibus Budget Reconciliation Act DHS = Department of Homeland Security
7、 DOL = Department of Labor DOT = Department of Transportation EAP = Employee Assistance Program EBSA = Employee Benefits Security Administration EEOC = Equal Employment Opportunity Commission EPA = Equal Pay Act EPPA = Employee Polygraph Protection Act ERISA = Employee Retirement Income Security Act
8、 ESOP = Employee Stock Ownership Plan FACTA = Fair & Accurate Credit Transactions Act FCRA = Fair Credit Reporting Act FLSA = Fair Labor Standards Act FMLA = Family and Medical Leave Act,FSA = Flexible Spending Account FTC = Federal Trade Commission HHS = Department of Health & Human Services HIPAA
9、= Health Insurance Portability & Accountability Act I-9 = Employment Eligibility & Verification Form ICE = Immigration & Customs Enforcement IRCA = Immigration Reform and Control Act JAN = Job Accommodation Network NLRA = National Labor Relations Act NLRB = National Labor Relations Board OFCCP = Off
10、ice of Federal Contract Compliance Programs OSHA = Occupational Safety & Health Administration OWBPA = Older Workers Benefit Protection Act PDA = Pregnancy Discrimination Act SOX = Sarbanes-Oxley Act SSA = Social Security Administration ULP = Unfair Labor Practice USCIS = U.S. Citizenship & Immigrat
11、ion Services USERRA = Uniformed Services Employment & Reemployment Rights Act WARN = Worker Adjustment & Restraining Notification Act,Employment Law TOOL BOX,What Employers Are Covered? Those with 15 or more employees Effective Date? 60 days after the publication of the regulations on March 25, 2011
12、. Easier to Establish a Covered “Disability” The ADAAA overturned several Supreme Court decisions that Congress believed interpreted the ADA disability definition too narrowly. The ADAAA expressly states that the definition of “disability” and “regarded as” should be interpreted in favor of broad co
13、verage. Same “Disability” Definition but Broader Interpretation The basic definition of a covered disability remains the same a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a d
14、isability. However, the EEOC stresses that the ADAAA and new regulations are designed to ensure broad interpretation of each of those key terms. Rules of Construction According to the EEOC, the regulations “implement Congress intent to set forth predictable, consistent and workable standards by adop
15、ting rules of construction to use when determining if an individual is substantially limited in performing a major life activity.” Those rules include: “Substantially limits” construed broadly. “Substantially limits” requires a lower degree of functional limitation than the standard previously requi
16、red by courts. A condition need not prevent or significantly restrict a major life activity to be considered “substantially limiting.” Individualized assessment. The determination of whether a condition substantially limits a major life activity requires an individualized assessment, as was true pri
17、or to the ADAAA.,ADAAA Cheat Sheet,Dont consider mitigating measures. With the exception of “ordinary eyeglasses or contact lenses, “without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.” Do consider episodic or remission conditions. Such conditions a
18、re covered disabilities if they substantially limit a major life activity. No extensive analysis required. The EEOC says that, “in keeping with Congress direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive ana
19、lysis.” Reasonable Accommodation The regulations clarify that an individual must be covered under the ADAs first prong (“actual disability”) or second prong (“record of disability”) to qualify for reasonable accommodation. Conditions That “Virtually Always Constitute a Disability” The regulations pr
20、ovide examples of conditions that “should easily be concluded to be disabilities,” including bipolar disorder, cancer, diabetes, epilepsy and HIV infection.,ADA Cheat Sheet,What Employers Are Covered? Those with 15 or more employees What Employees Are Eligible? Persons: with a physical or mental imp
21、airment that substantially limits one or more major life activities with a record of such an impairment regarded as having such an impairment Whats Prohibited? Discrimination against individuals with (or perceived to have) disabilities Discrimination based on a persons relationship to a disabled ind
22、ividual Retaliation or harassment for exercising ADA rights What Are “Major Life Activities”? Breathing, seeing, hearing, sitting, standing, walking, learning, caring for oneself, performing manual tasks and working, among other things. Whats Required? Employers must provide a reasonable accommodati
23、on to a disabled individual upon request Whats a “reasonable accommodation?” A modification that allows the person to perform the jobs essential functions An accommodation that would cause “undue hardship” for the employer need not be provided 2008 Manpower Inc. All rights reserved.,What About Drug
24、and Alcohol Users? The ADA protects: Rehabilitated drug users Drug users currently in rehabilitation Alcoholics The employer may still hold the above to the same performance standards as other employees. The ADA does not protect current users of illegal drugs. What are the Potential Penalties? Back
25、pay Compensatory damages Punitive damages Attorneys fees Top ADA Tips Ensure that all facilities are accessible by disabled individuals Job descriptions should clearly identify essential functions, including physical requirements Pre-offer: No medical exams and no inquiries regarding disability, per
26、ceived disability, workers comp history, absence related to illness or prior drug/alcohol use Post-offer: medical exams are acceptable only if required of similarly situated employees Focus on results rather than means of accomplishing them Engage in an interactive process to determine the needs of
27、an employee who requests an accommodation Contact the Job Accommodation Network (JAN) for accommodation assistance,ADEA Cheat Sheet,What Employers are Covered? Those with 20 or more employees Whats Prohibited? Discrimination against individuals age 40 and over in all aspects of employment for reason
28、s based on age, unless based on a valid BFOQ Hostile work environment base on age Retaliation or harassment for exercising ADEA rights What Employees are Covered? Persons age 40 and older What is a “BFOQ”? A BFOQ is a bona fide occupational qualification. In general, an employer cannot demonstrate t
29、hat age is a BFOQ unless it can establish that all or almost all members over the age it selects cannot safely perform the essential functions of the job. Note: A BFOQ is ordinarily difficult to prove unless the employee is working in a position that directly affects public safety Whats not Prohibit
30、ed? An employer may still take adverse action against an employee who is protected by the ADEA for a non-discriminatory reason unrelated to age How to Obtain a Waiver of ADEA Rights? Obtain a written release executed by the employee that specifically refers to the ADEA,Provide 21 days for the employ
31、ee to consider the waiver and advise the employee to consult an attorney Provide 7 days for employee to revoke the waiver after signing Note: In RIF situations, provide 45 days for the employee to consider the waiver and an attachment to the waiver that contains the following: The selection criteria
32、 for the RIF and any applicable time limits A list of job titles and ages of each person subject to the RIF and those employees who fall into the same organizational unit but were not subject to the RIF What are the Potential Penalties? Back pay Reinstatement or front pay Retroactive seniority Compe
33、nsatory damages Punitive damages Attorneys fees Top ADEA Tips Do not ask for an applicants age at any point during the application process Prohibit all age-related comments from the workplace pursuant to an effective anti-harassment policy Base any adverse employment actions on factors other than ag
34、e (or other protected characteristics) Apply performance standards, policies and procedures, and access to benefits uniformly without regard to age Document poor performance and disciplinary measures taken against employees,COBRA Cheat Sheet,What Health Plans are Covered? Those for employers that em
35、ploy 20 or more employees Whats Does COBRA Provide to Employees? Continued health care coverage to employees, former employees and/or qualified beneficiaries after the loss of previous coverage as a result of certain “qualifying events” Coverage continues at the same level provided before the qualif
36、ying event What Are Examples of “Qualifying Events”? Termination Reduction of hours Participant becomes disabled Death or divorce Dependent child loses dependent status How Long Does Coverage Generally Continue? 18 months in cases involving termination and/or a reduction in hours 29 months in certai
37、n cases involving disability 36 months in cases involving the death of a covered employee or divorce What Notice Requirements Are There? General notice describing COBRA rights must be provided to participants within 90 days after participation in a health care plan begins Employers generally must pr
38、ovide plan administrators with notice within 30 days of the occurrence of a qualifying event Plan administrator must provide participants with an election notice of COBRA rights within 14 days of a qualifying event (44 days if the plan administrator is also the employer),How Long Does a Participant
39、Have to Elect Coverage? 60 days from the date of the qualifying event or the date the election notice is provided, whichever is later Can the Plan Require the Participant to Cover the Cost of Premiums? Yes, including any portion of the premium generally by the employer on behalf of active employees
40、When Can Coverage Be Cut Off? A participant fails to pay required premiums The employer discontinues the plan Under certain circumstances, where the participant obtains subsequent coverage What are the Potential Penalties for failing to comply? Monetary penalties Top COBRA Tips Ensure that all notic
41、es go out to employees and participants within the time required Notify all participants about any changes in health benefits,EPA Cheat Sheet,What Employers Are Covered? Those with 2 or more employees Whats Prohibited? The Equal Pay Act (EPA) prohibits discrimination between men and women who work i
42、n substantially equal positions with respect to pay unless based on factors other than gender What Is a “Substantially Equal Position”? A position that requires equal skill, effort and responsibility and is performed under similar working conditions When Can an Employer Pay Employees Differently? Pu
43、rsuant to a seniority-based or merit-based pay system Pursuant to a system that pays wages based on quantity or quality produced Pursuant to other factors not based on gender, including differences in the amount paid by shift, differences in employee qualifications, etc. What are Some Examples of Po
44、tentially Discriminatory Reasons for Pay Differentials? Overhead costs to employer Industry practice Applicants prior salary Whats Included in an Employees “Pay”? Wages, employment benefits and work-related expenses What Are the Potential Penalties? Back pay Reinstatement or promotion Front pay Mone
45、tary penalties Injunctive relief Imprisonment Attorneys fees Top EPA Tips Dont rely solely on different job titles to justify differences in pay Maintain current and accurate job descriptions Apply wage payment structures uniformly by gender An employer cannot cure an existing wage differential by r
46、educing the pay of any employee,ERISA Cheat Sheet,What Employers Are Covered? Those that offer “employee benefit plans” to their employees Whats an “Employee Benefit Plan”? Employee Welfare Benefit Plan: a plan or fund through which an employer or employee organization provides participants with hea
47、lth care coverage Employee Pension Benefit Plan: a plan or fund through which an employer or employee organization provides participants with retirement or deferred income Whats Required? Certain minimum standards for both types of plans regarding employee and beneficiary participation, funding, adm
48、inistration, benefit accrual, disclosure, survivor benefits and plan termination Whos Eligible to Participate in Pension Plans? In general, employers must allow every employee who is at least 21 years old and has worked for them for at least 1,000 hours over the last 12 months to participate What Ki
49、nds of Pension Plans Are There? Defined benefit plans: promises a specific monthly benefit upon retirement (or retirement age) Defined contribution: the employer and/or employee contributes to the plan during employment and the employee receives the balance upon retirement (or retirement age) What Are the Employers Notification Requirements? Provide a Summary Plan Description (SPD) to each plan participant Provide a summary of the plans annual financial informat