Frequently Asked Questions for Intellectual Property Law

What does the labor management relations act (LMRA) govern?

    Four major historical statutes make up what is now known as the Labor Management Relations Act. The cornerstone of the LMRA provides that protected employees shall have the right to form and join unions and bargain collectively. Such employees can engage in concerted activities for their mutual aid or protection. Employees shall also have the right to refrain from unions unless already represented by a union and subject to a union shop provision. The LMRA further provides which actions or inactions will constitute an unfair labor practice by employer and union. The LMRA establishes the process of elections (conducted by the National Labor Relations Board, NLRB), to determine the desires of the employees for representation, and outlines the NLRB`s powers.

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Who is covered by the Labor Management Relations Act?

    Generally, the LMRA covers the private sector. Government agencies are excluded. Two exceptions are national banks and mail contractors. Because of this, states have established various labor laws for the public sector. The LMRA does not apply to independent contractors, because they are not considered employees. The LMRA also excludes supervisors and managerial employees under the definitions of the Act, as well as agricultural employees.

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What administrative body may impose remedies for a violation of the Labor Management Relations Act?

    Because the LMRA was enacted to maintain industrial peace for the benefit of the public, enforcement is geared to be more remedial in nature than punitive. The NLRB has the jurisdiction, but must enforce its decisions and injunctions through the federal courts. Courts have given great discretion and latitude to the NLRB in its interpretations of the Act.

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What does the Americans with Disabilities Act (ADA) govern?

    The Americans with Disabilities Act (ADA) prohibits discrimination against qualified disabled individuals in all employment practices including job application procedures, hiring, promotion and advancement, discharge compensation, training and other terms, conditions and privileges of employment. The ADA prohibits employment discrimination on the basis of a disability in all programs, activities and services provided for or operated by state and local governments.

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Who is covered by the Americans with Disabilities Act?

    The Americans with Disabilities Act (ADA) applies to disabled individuals in employment. The ADA applies to private employers, state and local governments, employment agencies and labor unions. The Act broadly defines a disability as a physical or mental impairment that substantially limits one or more major life activities. The definition also includes anyone who has a record of such an impairment or is regarded as having such an impairment.

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What administrative body may impose remedies for a violation of the Americans with Disabilities Act?

    Complaints can be filed with the EEOC or individuals seeking to bring a lawsuit under the ADA must first file a charge with the EEOC and/or with any state or local deferral agency established by a state. Remedies under the ADA include compensation and punitive damages in amounts limited by the size of the employer`s work force.

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What does the Age Discrimination in Employment Act (ADEA) govern?

    It is unlawful for an employer, employment agency or Labor Union to discriminate in employment against anyone because of his or her age. This includes refusing to hire an individual or firing an employee. It also includes an individual`s compensation, terms, conditions or privileges of employment and all employee benefits.

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Who is covered by the Age Discrimination in Employment Act?

    The ADEA applies only to persons who are over 40. There is no upper age limit. The ADEA applies to employment practices in both the private and the public sector, including employment agencies and Labor Unions. Using age is not unlawful where age is a bona fide occupational qualification reasonably necessary to the normal operation of the job. Also, state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.

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What administrative body may impose remedies for a violation of the Age Discrimination in Employment Act?

    Complaints are to be sent to the Equal Employment Opportunity Commission (EEOC) within 180 days of the occurrence of the discriminatory act, unless the alleged misconduct occurred in a state that has an age anti-discrimination agency. If so, charges should be filed within 300 days of the alleged unlawful practice or within 30 days after receipt of notice that the state proceedings have been terminated; whichever is earlier. Any individual civil action may be filed 60 days after a charge has been filed with EEOC or state deferral agency. There is a statute of limitation on lawsuits of 2 years. Three years for willful violations.

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What does the Employee Retirement Income Security Act (ERISA) govern?

    ERISA was passed to protect the interest of participants in employee benefit plans and their beneficiaries through disclosure and reporting requirements, and the establishment of certain fiduciary standards of conduct, responsibility, and obligations.

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Who is covered by the Employee Retirement Income Security Act?

    Any employee benefit plan established or maintained by any employer, employee organization or organization representing employees engaged in commerce or in any industry or activity affecting commerce is covered by ERISA. ERISA does not apply to government plans or tax-exempt church plans as defined by the Act. Also exempt are plans maintained solely for the purpose of complying with workers compensation, unemployment or disability insurance laws or those maintained outside of the U.S. primarily for the benefit of persons substantially all of whom are nonresident aliens. If a plan is an excess benefit, providing benefits or contributions in excess of those allowable for tax qualified plans, it is exempt from ERISA.

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What administrative body may impose remedies for a violation of the Employee Retirement Income Security Act?

    ERISA has designated the Secretary of Labor broad powers to investigate and determine violations and impose remedies. The Secretary of Labor, plan participants, beneficiaries or fiduciaries, can bring ERISA actions to U.S. District Courts. Criminal prosecutions may be brought against persons who willfully violate the Act.

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What does the Workers Adjustment & Retraining Act (WARN)(Plant closure law) govern?

    Known as the Plant closure law, WARN requires an employer of 100 or more to give affected employees at least a 60 day written notice prior to any plant closing or mass layoff. This is designed to provide employees and their families some transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training that will allow an employee to successfully compete in the job market. WARN further provides for notice to state dislocated worker units so that dislocated worker assistance can be promptly provided. Also, notice is to be sent to local elected officials, so they may prepare a community response. If represented by a union, notice must be given to the Union rather than to the employees.

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Who is covered by the Workers Adjustment & Retraining Act?

    For plant closures, an employer must give notice if a site (or one or more facilities or operating units within a site) will be permanently or temporarily shut down at a loss of 50 or more employees during a 30-day period. This is excluding part-timers. For mass layoffs that do not result in plant closure, notice must be given if loss in the employment site, during a 30-day period, is 500 or more employees. If the loss is from 50-499 employees, notice must be given if that portion makes up at least 33% of the employer`s active workforce. Again, not including part-timers.

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What administrative body may impose remedies for a violation of the Workers Adjustment & Retraining Act?

    An employer can be penalized for failure to give proper notices. These amounts are set for $500.00 per day for each violation, plus paying the affected employee the wages and benefits they should have received. This can be reduced in certain limited circumstances. An action to recover these amounts may be initiated in any federal district court in which a violation is alleged to have occurred or in any federal district court in which the employer transacts business. The Court also has the discretion to award the prevailing party reasonable attorney fees.

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What does the federal Family and Medical Leave Act (FMLA) govern?

    The Family and Medical Leave Act (FMLA) allows certain employees up to twelve weeks of unpaid, job-protected leave per year. The FMLA calls for notification responsibilities. It also requires that group health benefits be maintained during the leave. The FMLA is designed to help employees balance their work and family responsibilities by taking reasonable unpaid leave for certain family and medical reasons. The FMLA also seeks to accommodate the legitimate interests of employers, and promotes equal employment opportunity for men and women. A number of states have also enacted family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by FMLA. In those situations where an employee is covered by both Federal and State FMLA laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law.

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Who is covered by the federal Family and Medical Leave Act?

    Only employers that carry 50 or more employees at a worksite, or within 75 miles, are covered by the FMLA. However, for an employee to be eligible, he or she must have worked for the employer for at least one year and must have worked at least 1,250 hours (an average of 25 hours a week) during the previous 12-month period. An employer may deny leave to any key employee who receives a salary in the top 10% of the work force and whose leave-taking would cause economic harm to the employer.

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What administrative body may impose remedies for a violation of the federal Family and Medical Leave Act?

    The United States Secretary of Labor, through the Wage and Hour Division of the Employment Standards Administration, has administrative jurisdiction. The Department of Labor will review the merits of the complaint and attempt to negotiate and resolve the complaint administratively with the employer. If the Secretary of Labor is convinced that a violation has occurred, and in the event attempts to resolve the matter with the employer are not successful, the Secretary of Labor may file a lawsuit on behalf of the employee. Complaints are to be filed two years from the date of the last action of the alleged violation. Three years if it is a willful violation. Complaints may be filed by an employee or by any other person on behalf of an employee. There is no federal requirement that the Secretary of State be notified before filing a lawsuit in the event attempts to resolve the matter with the employer are not successful.

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What does the federal Occupational Safety and Health Act (OSHA) govern?

    The Occupational Safety and Health Act (OSHA) requires that an employer furnish a place of employment free from recognized hazards that are causing, or likely to cause, death or serious harm to employees. OSHA requires certain record keeping and notice requirements on the employer and establishes standards and procedures.

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Who is covered by the federal Occupational Safety and Health Act?

    OSHA generally covers any employer engaged in a business affecting interstate commerce that has at least one employee. However, OSHA does exempt certain employers from some requirements and penalties if they have 10 or fewer employees. This Act does not apply to residential owners who employ persons for ordinary domestic household things, such as cleaning, caring for children and cooking, etc. State and local governments are not covered and states have developed their own laws. OSHA encourages states to take on responsibility and enforcement roles. The Act does not prohibit a state agency from enforcing its own OSHA laws as long as the state law does not conflict with the federal law.

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What administrative body may impose remedies for a violation of the federal Occupational Safety and Health Act?

    The Occupational Safety Administration of the Department of Labor administers OSHA. Through the Secretary of Labor, the Administration has the power to investigate, inspect, issue citations and impose penalties. Offenders can be subject to civil and criminal penalties. OSHA inspections are to be conducted during working time, or at other reasonable times, and in a reasonable manner. Inspections are subject to the search and seizure safeguards of the Fourth Amendment.

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What does the Civil Rights Act of 1964 (Title VII) govern?

    Title VII prohibits discrimination in employment including public accommodations, governmental services and education. An employer cannot fail or refuse to hire or refuse to promote, fire anybody or discriminate with respect to compensation, terms, conditions and privileges of employment based on race, color, sex, religion or national origin. An employer cannot limit, segregate or classify employees or applicants in any way that would deprive or tend to deprive employment opportunities or that adversely affects the status of an employee because of race, color, sex, religion or national origin.

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Who does the Civil Rights Act of 1964 cover?

    Employers with 15 or more employees, affecting commerce, and whose employees have been employed for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year, are covered by Title VII. Title VII applies to all employers, potential employers, unions, employment agencies and joint labor-management training committees. Title VII, through subsequent amendments, applies to state and local governments, governmental agencies, and political subdivisions. Religious organizations are exempt when based upon religion.

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What administrative body may impose remedies for a violation of the Civil Rights Act of 1964?

    The Equal Employment Opportunity Commission (EEOC) administers and enforces Title VII. The EEOC has the power to investigate, litigate and resolve unfair employment practices. The EEOC make take action in a federal district court for appropriate relief and preliminary relief pending disposition of a charge. The EEOC may also issue a notice of a right to sue to the charging party following administrative proceedings.

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What does the Employee Polygraph Protection Act of 1988 govern?

    The Federal Employee Polygraph Protection Act (EPPA) establishes guidelines for polygraph testing and imposes restrictions on most private employers. In general, businesses cannot request, suggest or require any job applicant to take a pre-employment polygraph examination. Businesses can request a current employee to take a polygraph examination or suggest to such a person that a polygraph examination be taken, only when specific conditions have been satisfied. Nevertheless, the employer cannot require current employees to take and examination, and if an employee refuses a request or suggestion, the employer cannot discipline or discharge the employee based on the refusal to submit to the examination.

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Who does the Employee Polygraph Protection Act of 1988 cover?

    EPPA covers commercial businesses. Exceptions are businesses whose primary purpose consists of providing armored car personnel; and those involved in the design, or security personnel, in facilities that have a significant impact on the health or safety of any state. Also exempt are companies which manufacturer, distribute or dispense controlled substances. Local, state and federal governmental agencies (such as police departments) are not affected by the federal law, nor are public agencies, such as a school system or correctional institution. However, some states have laws that offer greater protections with certain classes that may include governmental agencies.

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What administrative body may impose remedies for a violation of the Employee Polygraph Protection Act of 1988?

    Under the EPPA, an individual has the right to take action against a violating employer by filing with the Secretary of Labor. The examinee may recover such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, payment of lost wages and benefits, and reasonable costs, including attorney`s fees. Civil penalties may be assessed for not more than $10,000. The U.S. District Court has jurisdiction to issue restraining orders and injunctions. An examinee may bring a private civil action in any Federal or State court of competent jurisdiction. No action may be commenced more than 3 years after the date of the alleged violation. The court has the discretion to allow the prevailing party (other than the United States) reasonable costs, including attorney`s fees.

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What does the Fair Labor Standards Act govern?

    The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, equal pay, record keeping requirements and child labor standards. As of December 2000, workers covered by the FLSA are entitled to the minimum wage of $5.15 per hour and overtime pay at time and one-half rate of pay after 40 hours of work in a workweek. States can set minimum wages higher for their state, but not lower. Various minimum wage exceptions apply under specific circumstances.

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Who is covered by the Fair Labor Standards Act?

    In order for the FLSA to apply there must be an employment relationship between an employer and an employee. An employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. There are exemptions. Some employees are exempt from the overtime pay provisions, some from both the minimum wage and overtime pay provisions and some from the child labor provisions. Exemptions are narrowly construed against the employer asserting them. Therefore, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee`s actual duties before assuming that the exemption might apply.

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What administrative body may impose remedies for a violation of the Fair Labor Standards Act?

    With the exception of certain federal employees, the administration and enforcement of the FLSA is the responsibility of the Department of Labor`s Wage and Hour Division of the Employment Standards Administration (ESA). The FLSA can be enforced by private employee lawsuits or by actions taken by the Department of Labor. The Department of Labor can also seek injunctive relief. Should an employer lose a case in court, employees generally collect back pay and liquidated damages in the amount of back pay (double damages). Attorney fees are also recoverable. Ignorance of the law is no defense for employers. There is a two-year statute of limitations. There is a three-year limit if a willful violation.

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What does the Rehabilitation Act of 1973 govern?

    The stated purpose of the Rehabilitation Act is to endorse economic independence of handicapped persons. This is done through the employment of people with disabilities and the inclusion of people with disabilities in American life. The Act thus creates the practical mechanisms and funding authority necessary to achieve these goals. The Rehabilitation Act provides that recipients of federal financial assistance are prohibited from discriminating against otherwise qualified handicapped persons solely by reason of their handicap.

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Who does the Rehabilitation Act of 1973 cover?

    The Rehabilitation Act covers handicapped persons in the federal government, federal government programs or an employer who contracts or subcontracts with the federal government. A handicapped individual is defined as any individual who has a physical or mental impairment that substantially limits one or more major life activities and either has a record of such impairment or is regarded as having such impairment.

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What administrative body can impose remedies for a violation of the Rehabilitation Act of 1973?

    The Department of Labor has jurisdiction of the Rehabilitation Act. The employee can recover compensatory and punitive damages in cases of intentional discrimination. Punitive damages, however, may only be recovered against private sector employers who acted with malice or reckless indifference to the victim`s rights. Damages are limited to $50,000 for employers 15-100, $100,000 from 101-200, $200,000 for 201-500 and $300,000 for 501 or more.

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Under the Workers Adjustment & Retraining Act (WARN) (a.k.a. Plant Closure Law) what must be in the layoff notices?

    1. The name, address of the site and phone number of company official to contact.
    2. A statement as to whether the action is expected to be permanent or temporary and if the entire plant is going to be closed.
    3. The expected date of the first separation and a schedule anticipated thereafter.
    4. Job titles and names of affected employees.
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Under the Workers Adjustment & Retraining Act (WARN), what must be in the notices to the Dislocated Workers Unit?

    All notices submitted to the State Dislocated Worker Unit and the chief official of the local government must be in writing and include the following:

    1. The name and address of the employment site where the plant closing or mass layoff will occur.
    2. The name and phone number of a company official to contact for further information.
    3. A statement if the action is expected to be permanent or temporary and, if the entire plant is to be afffected.
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Do the Requirements under the Workers Adjustment & Retraining Act apply to an employer`s subsidiaries?

    WARN`s application to an employer`s subsidiary depends on the degree of the subsidiary`s independence from the parent employer. One must look at such factors as common ownership and common directors and officers, the exercise and control of the subsidiary, dependency of operations and the unity of personnel policies originating from a common source.

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Can WARN notification be shortened or waived?

    Yes, the notification under WARN can be shortened when the employer is actively seeking business or capital which would have enabled the employer to avoid or postpone the shutdown and that the employer reasonably and in good faith believes that giving the notice required would have precluded them from getting that capital or business to avoid the shutdown. The notification period can be waived if caused by circumstances that were not reasonably foreseeable as of the time notice required. Such an employer must give as much notice as is practicable and explain the basis in the notification letter. No notice is required if the closing is due to a natural disaster.

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Are there requirement for the delivery of the notice under the Workers Adjustment & Retraining Act?

    Notice should be given by any reasonable method designed to ensure notice of at least 60 days. Such notice includes first class mail or personal delivery with optional signed receipt. Insertion of notice into pay envelopes is another viable option. A ticketed pre-printed notice regularly included in a pay check or pay envelope does not meet the requirement.

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What is employment discrimination?

    Discrimination generally occurs when an employee is intentionally treated differently because of the employee`s race, color, religion, national origin, disability, gender, sexual orientation (depends on state) or age because of the employer`s system, such as its hiring process, has a negative effect on people in the protected categories or classes.

    To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of the employer`s system had an unintentional discriminatory effect, it is said to have a disparate impact.

    Even if the employee`s evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a ˘business necessity÷ for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer`s justification, was the true reason for the action.

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Business Necessity defense to a Discrimination Claim

    After the employee establishes a prima facie case of sexual discrimination, the employer may offer a business necessity defense. Business necessity is an overriding legitimate, nondiscriminatory business purpose. In order to satisfy the business necessity, an employer should satisfy three elements:

    1. There must be an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business;
    2. The practice must effectively carry the business purpose it is alleged to serve; and
    3. There are not any acceptable alternative policies or practices which would accomplish the business purpose advanced, or accomplish it equally with a lesser differential impact.
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Bona Fide Occupational Qualification defense to a Discrimination Claim

    Under Title VII, an employer can select employees on the basis of religion, sex or national origin in those instances in which it is a bona fide occupational qualification, reasonably necessary to the normal operation of the business. Because this qualification is narrowly construed, it is not often used as a defense in Title VII cases.

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Seniority System as a defense to a Discrimination Claim

    There may be different standards of compensation or different terms and conditions of employment pursuant to a bona fide seniority system, if such a difference is not the result of intentional discrimination with regard to race, color, religion, sex or national origin. The Supreme Court has ruled that a bona fide seniority system can thus be used even if it has a discriminatory effect, so long as the system was not intended to be discriminatory.

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For Cause Defense to a Discrimination Claim

    An employer may prevail in overcoming a prima facie case of discrimination by showing the court that it had good cause or a legitimate non-discriminatory reason for its action. For example, an employer may off set an employee alleging a discriminatory firing by proving the employee was in fact fired other legitimate reasons. The Civil Rights Act of 1991 provides that an unlawful employment practice is established where an employee has shown that a discriminatory motive was involved in an employer`s decision, even though other nondiscriminatory factors motivated the decision. If the employer can prove that the same action would have been taken absent the discriminatory motive, the employee may not recover damages or be awarded reinstatement, hiring or promotion. The Court may, however, award declaratory relief, attorney fees and cost.

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What is sexual harassment?

    Sexual harassment is a form of sexual discrimination when there are unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment. This is conduct that interferes with an individual`s work performance or creates an intimidating, hostile or offensive work environment.

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Hostile Work environment and Sexual Harassment

    A hostile work environment and sexual harassment occurs when there is conduct that creates an offensive or hostile working environment. Such conduct includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee`s work performance or creating an intimidating, offensive or hostile work environment. In order to determine if a work environment is ˘hostile÷ to support a claim of sexual harassment, the courts have developed the use a ˘reasonable person÷ standard. The Ninth Circuit has interpreted this to be the perspective of a reasonable woman.

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Liability to Employers for Sexual Harassment

    The employer is not always strictly liable for sexual harassment by its supervisors and employees. Nevertheless, under the quid pro quo theory, an employer is strictly liable for conduct of its supervisors who have authority over hiring, advancement, dismissal, and discipline. Under the hostile work environment theory, an employer is only liable for conduct of its supervisors if the act took place in the scope of the supervisor`s employment. This requires an examination of factors such as when and where the act took place, and whether it was foreseeable. Under either theory, an employer can be held liable for non-supervisory employees if the employer knew or should have known of the conduct and failed to take corrective action within a reasonable time period. An employer will be held liable for retaliatory action against an employee if it takes such action because of a complaint of sexual harassment.

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What are defenses for Sexual Harassment?

    Conduct only constitutes unlawful sexual harassment if it is unwelcome. If the employer can prove that the conduct was indeed welcome, the employer can absolve itself from liability. The courts will look at the totality of the circumstances, including provocative speech, dress or actions that might have encouraged advances. One must distinguish between unwelcome and voluntary. If an employee engages in a voluntary act that is unwelcome, the employer may still be liable. Voluntary behavior is not in itself a defense to a sexual harassment claim. The employer must prove that it was welcome. Also, under certain circumstances, the employer can avoid respondeat superior liability for a hostile work environment by its supervisors if it has a grievance procedure and policy against discrimination in the work place.

    Resondeat superior: Let the Master answer, Under this doctrine, the master is responsible for the care given by his servants Thus, the Employer is liable for the actions of the employee.

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Is discrimination in Publications Prohibited?

    It is an unlawful employment practice for an employer, union, employment agency or labor-management training committee to publish any notice or advertisement that indicates any preference, limitation, specification or discrimination with respect of a protected class. However, it is not unlawful if based on religion, sex or national origin if it is a bona fide occupational qualification for employment.

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What is the difference between disparate impact and disparate treatment?

    Discrimination on its face is disparate treatment. However, rules or policies that are facially neutral can have a disproportionate impact on minorities and other members of a protected group. This is called disparate impact.

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Does the employer have to prove business necessity in a disparate impact case?

    Since the Civil Rights Act of 1991, once a prima facie allegation has been established, the employer is required to not only prove that the employment practice is job related, but that it is required by business necessity. To establish business necessity, the employer must show that its particular business practice bears a demonstrable relationship to the successful performance of the jobs for which it was used.

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What happens if there is a mixed motive in an action taken by an employer; one discriminatory and the other non-discriminatory

    (intentional discrimination) when the employer had a mixed motive and if that same action would have been taken even in the absence of the discriminatory motive. The Civil Rights Act of 1991 overturns this making any discrimination unlawful, even if the employee would have suffered the same adverse action in the absence of the discriminatory motive.

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Can an employer use education as a job requirement and avoid a disparate impact?

    Generally, the extent of which an employer can use education as a job requirement varies with the public`s interest of health and safety in the performance of the job. A requirement of a high school education for a job may be an unlawful job qualification that has a disparate impact on classes protected by law, if there is not proper justification in the performance of the job and the high school diploma.

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Can an employer reject an applicant for not passing a physical examination?

    An employer can reject an applicant for not passing a physical exam or not meeting certain health requirements. This can only be done as long as the physical impairment or disability would prevent the applicant from performing the job functions.

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Can an employer reject an applicant for not passing a strength test

    If the strength test is a bona fide job-related qualification for the job, an employer may reject an applicant from the job. This issue can become tricky in particularly dealing with gender. It must be in fact related to the job and necessary or it may have an unlawful discriminatory impact.

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Can an employer reject an applicant based on work experience?

    An employer may reject an applicant based on work experience as a valid relevant job requirement as long as it relates to the successful performance of the job. An employer may also reject an applicant based on work experience as a valid relevant job requirement if it is a recognized business necessity.

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Applicant/Employee appearance, hair and dress requirements under Title VII

    Generally, An employer may not reject an applicant for employment because his or her appearance is typical of minority employees or a protected class. However, an employer`s grooming regulations do not violate Title VII even though the standards may differ from male and female. The tendency of the courts is less restrictive on hair regulations if they have no significant effect on the employment opportunities of one sex in favor of another. This can be done as long as it is reasonably related to an employer`s needs and find some justification in commonly accepted social norms. Also some accommodation issues may come into play with regards to religion and other protected classes.

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Can an employer use religion as a reason to reject an applicant?

    If it is not a bona fide qualification for the job, an employer must make reasonable accommodations to the religious needs of prospective employees and may not reject them from employment because of their religious needs unless such accommodations would create an undue hardship on the conduct of the employer`s business.

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Can an employer use arrest and criminal records to reject an applicant?

    With regards to blanket requirements of no previous arrest or criminal records, the EEOC has considered cases unlawful against Afro-Americans because of disproportionate impact, unless it can be shown that such requirement is necessary to the operation of the employer`s business. When refusing to hire, the employer should be able to show that they first considered the circumstances surrounding the particular case and the employment of such an applicant would be inconsistent with the safe and efficient operation of the business.

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Under Title VII, how long does an employer need to preserve personnel or employment records?

    The EEOC requires employers subject to Title VII to preserve personnel and employment records, including application forms, for a minimum period of six months from the date of making record or taking the personnel action involved, whichever occurs later. Records relevant to any charge of discrimination must be maintained until final disposition of the charge or litigation. States can and have increased this requirement under their own anti-discrimination laws.

    The EEOC also requires that employers having 100 or more employee to file a Standard Form 100, (also known as an EEO-1 report). The employer is obliged to obtain necessary supplies of this form and file its report prior to the annual filing date each year. The employer must also retain a copy of its most recent report for each reporting unit at its facility, or at its company or divisional headquarters, and to make available a copy to the EEOC upon request.

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EEO-1 Standard 100 Form Information

    Employers under Title VII with 15 or more employees are required to keep employment records as specified by EEOC regulations. Based on the number of employees and federal contract activities, certain large employers are required to file an EEO-1 report on an annual basis. The filing of Standard Form 100 is required by law; it is not voluntary. The EEOC, under Title VII, may compel an employer to file this form by obtaining an order from the United States District Court. Penalties for failure by a Federal contractor or subcontractor to comply may include termination of the Federal government contract and debarment from future Federal contracts.

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Who must file the EEO-1 (Standard Form 100)?

    • All private employers subject to Title VII with 100 or more employees (excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations);

    • private employers subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

    • Federal contractors (private employers), who have 50 or more employees, and (a) are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or (b) serve as a depository of Government funds in any amount, or (c) is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

    • Only those establishments located in the District of Columbia and the 50 states are required to submit Standard Form 100. No reports should be filed for establishments in Puerto Rico, the Virgin Islands or other American Protectorates.
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How do I file an EEO-1 (Standard Form 100)?

    There should be four copies. File the original and first copy with the Joint Reporting Committee. The remaining two copies may be retained for employer records. All single-establishment employers, employers doing business at only one establishment in one location, must complete a single Standard Form 100.

    Computer printouts or tapes may be substituted for all types of EEO-1 reports (headquarters, individual establishments, special reports) EXCEPT the Consolidated Report. The Consolidated Report MUST be prepared on the actual EEO-1 form. EEOC has designed formats which employers must use for computerized reports.

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How do I file an EEO-1 (Standard Form 100, if I am a multi-establishment employer?

    All multi-establishment employers, employers doing business at more than one establishment, must file: (1) a report covering the principal or headquarters office; (2) a separate report for each establishment employing 50 or more persons; (3) a consolidated report that must include all employees by race, sex and job category in establishments with 50 or more employees as well as establishments with fewer than 50 employees; and (4) a list, showing the name, address, total employment and major activity for each establishment employ-ing fewer than 50 persons, must accompany the consolidated report.

    The total number of employees indicated on the headquarters report, plus the establishment reports, plus the list of establishments with fewer than 50 employees, must equal the total number of employees shown on the consolidated report. All forms for a multi-establishment company must be collected by the headquarters office for its establishments or by the parent corporation for its subsidiary holdings and submitted in one package. For the purposes of this report, the term parent corporation refers to any corporation which owns all or the majority stock of another corporation so that the latter stands in the relation to it of a subsidiary.

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When and where must an employer file an EEO-1?

    This annual report must be filed with the Joint Reporting Committee not later than September 30. Employment figures from any pay period in July through September may be used. Those employers with previous written approval to report year-end figures may continue to do so. The completed report should be forwarded in one package to the address indicated in the survey mailout memorandum.

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What if an employer determines that the preparation or filing of the EEO-1 causes an undue hardship?

    An employer who claims that preparation or the filing of EEO-1 Standard Form 100 would create undue hardship may apply to the EEOC for a special reporting procedure. In such cases, the employer is required to submit in writing an alternative proposal for compiling and reporting information to the EEOC addressed to: The EEO-1 Coordinator, EEOC-Survey Division, 1801 L Street, N.W., Washington, D.C. 20507. The employer may also contact the local EEOC office for further direction. Only those special procedures approved in writing by the Commission are authorized. Such authorizations remain in effect until notification of cancellation is given.

    Public reporting burden for this collection of information is estimated to average three and seven tenths (3.7) hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the collection of information. A response is defined as one survey form.

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How to Prepare the Standard 100 Form Report

    Section A- Type of Report

      Item 1-Check one (1) box indicating type of report.

      Item 2-If you are a multi-establishment employer, enter the total number of EEO-1 reports being submitted on your Consolidated Report.

    Section B- Company Identification

      Item 1 - Parent Company. Provide company name and address of the headquarters office of the multi-establishment company which owns the establishment in Item 2.

      Item 2 - Establishment for which this report is filed. Provide the name, address and employer identification number of each company establishment where 50 or more persons are employed, if different from the label.

    Section C

      Questions 1 thru 3 ˘must÷ be answered by all employers. If the answer to Question C-3 is Yes, please enter the company`s Dun and Bradstreet identification number if the company has one. If the answer is YES to question 1, 2, or 3, complete the entire form. Otherwise skip to Section G.

    Section D- Employment Data

      Employment data must include all full-time and part-time employees who were employed during the selected payroll period, except those employees specifically excluded as indicated in the Appendix. Employees must be counted by sex and race/ethnic category for each of the nine occupational categories.

      Establishments located in Hawaii will report only total employment in columns A, B, and G. All male employees should be reported in column B regardless of race/ethnic designation; and all female employees should be reported in column G regardless of race/ethnic designation.

        Race/Sex Data - Every employee must be accounted for in one and ONLY one of the categories in Columns B thru K.

      1. Occupational Data - Employment data must be reported by job category. Report each employee in only one job category. In order to simplify and standardize the method of reporting, all jobs are considered as belonging in one of the broad occupations shown in the table. For further clarification, you may wish to consult the Alphabetical and Classified Indices of Industries and Occupations (1980 Census) published by the U.S. Department of Commerce, Census Bureau.

    Section E ű Establishment Information

      The major activity should be sufficiently descriptive to identify the industry and product produced or service provided. If an establishment is engaged in more than one activity, describe the activity at which the greatest number of employees work. The description of the major activity indicated on the Headquarters` Report (Type 3) must reflect the dominant economic activity of the company in which the greatest number of employees are engaged.

    Section F ű Remarks

      In this section, put down any remarks, explanations, or other pertinent information regarding the report.

    Section G ű Certification

      If all reports have been completed at headquarters, the authorized official should check Item 1 and sign the consolidated report only. If the reports have been completed by the individual establishments, the authorized official should check Item 2 and sign the establishment report.
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What records must be kept for joint labor-management apprenticeship committees?

    If the joint labor-management apprenticeship committee has 5 or more apprentices enrolled during August and September, and if the employer or union sponsor is itself subject to Title VII, the committee must file an apprenticeship information report, EEO-2, to the EEOC. Records necessary for the completion of the EEO-2 report must be preserved for a period of one year from the due date of the report. Other records relating to apprenticeship programs must e preserved for a period of at least two years. Records relevant to a Title VII charge of discrimination must be maintained until final disposition of the charge or disposition of the litigation following the charge.

    Every entity that controls an apprenticeship program must maintain a chronological list of names and addresses of all persons who have applied to participate, including the dates the applications were received. The list must identify gender and note race as ˘White, Black, Hispanic, Asian, Pacific Islander, American Indian, or Alaskan Native.÷ In lieu of the list, written applications will suffice if they contain a notation of the date the form was received and the above information. These records must be maintained for two-years or for the period of a successful applicant`s apprenticeship, whichever is longer.

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What is the enforcement on the EEOC record-keeping requirements?

    Legal sanctions may be imposed upon unions, employers, or joint labor-management committees who refuse or fail to comply with their EEOC record-keeping and reporting responsibilities. Making willfully false statements in EEOC reports may subject violators to fines up to $10,000 or imprisonment up to five years or both, pursuant to the U.S. Criminal Code. Short of criminal sanctions, regulations provide that the EEOC may seek an order of a U.S. district court to compel compliance with the requirements.

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I received a charge from the EEOC that says my business violated federal law. How can the EEOC say this before anyone has even t

    While there are a few rare exceptions, ordinarily the charge must be filed by a member of the public who has contacted EEOC and alleged that a company has discriminated against him or her. The fact that the EEOC has taken a charge does not mean that the government is accusing you of discrimination. The charging party has alleged that your company has discriminated against him or her and it is the EEOC`s job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred.

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How will I know if a charge of discrimination has been filed against my company?

    The EEOC will notify the employer within 10 days of receiving a charge. Notification normally includes a copy of the charge briefly identifying the charging party, the basis (e.g., race, religion, sex, etc.) and issue(s) (e.g., hiring, promotion, discharge, etc.) of the allegation, and the date(s) of the alleged discrimination. Ordinarily, a plain language explanation of the EEOC charge process will be included, as well as explanations of the employer`s obligation to retain records pertaining to the charge and of the non-retaliation provisions of the EEOC laws. An invitation to mediate the charge may also be included in the notification package.

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What can I expect to happen in an EEOC investigation?

    After a charge is filed, you may be asked to provide a statement of position responding to the allegations in the charge. You may also be asked to provide documents or information related to the subject of the EEOC`s investigation. Additionally, the EEOC may ask to visit your worksite or to interview some of your employees. Cooperation with EEOC requests for information is helpful to the EEOC in investigating charges. When an employer refuses to provide information, or does not do so in a reasonably timely manner, the EEOC may issue a subpoena. You may retain an attorney to represent you during the EEOC`s handling of the charge but you are not required to do so.

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What records am I required to keep if I receive an EEOC charge?

    The EEOC Notice of Charge form that you receive should explain the agency`s record keeping requirements. When an EEOC charge has been filed against your company, you should retain personnel or employment records relating to the issues under investigation as a result of the charge, including those related to the charging party or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s).

    Once a charge is filed, these records must be kept until the final disposition of the charge or any lawsuit based on the charge. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, final disposition means the date of expiration of the 90-day statutory period within which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.

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What if my records are not in the format requested by the EEOC and it will be too costly and time-consuming to comply with the request?

    Talk to the EEOC investigator before submitting information in a format different from that requested or refusing to comply altogether. Explain what business records you have and how you believe you could supply the information in a manner closely resembling the manner requested. Most of these situations can be worked out so that EEOC gets the information it needs without the employer feeling unduly burdened.

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What if the EEOC sent a Notice of Charge which contains very little information about a claim of discrimination?

    The EEOC generally sends notice to employers that a charge has been filed within 10 days after the charge is filed. The EEOC may occasionally give you notice of a charge without actually including a copy of the charge. When this happens, ordinarily you need do nothing more until the EEOC contacts you at a later date. However, if you want more information, call the EEOC office that sent the notice and speak with the staff person assigned to handle the charge to obtain more information.

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What if you believe that the EEOC Charge filed against your company is frivolous. Should you respond?

    Yes. You should respond. Under the EEOC`s current procedures, if the EEOC believes the charge is invalid or frivolous, it will dismiss the charge. If the charge was not dismissed by the EEOC when it was received, there is usually some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. You are encouraged to present the facts available to you that you believe show the allegations are false.

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What happens if a charge is dismissed by the EEOC?

    If the EEOC dismisses a charge, it will not proceed further with an investigation. The charging party is notified of his or her right to file a lawsuit in court. A charging party may file a lawsuit within 90 days of receiving his or her dismissal notice. The laws also permit a charging party to choose to go to court instead of waiting for the EEOC to complete its investigation. Therefore, in some cases, the EEOC may issue a notice of right to sue upon the charging party`s request.

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What does the EEOC do if it determines that a violation of the law has occurred?

    If the EEOC determines that there is reasonable cause to believe that discrimination occurred, a written determination and invitation to enter into conciliation discussions are issued to the parties. If conciliation efforts are not successful, the EEOC and/or the charging party may bring suit.

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If my company is found to have violated the law, what could happen?

    Under the EEOC-enforced laws, the remedies for unlawful discrimination include an order to eliminate discriminatory practices, or hiring, wage adjustments, promotion or reinstatement, depending upon the nature of the action taken against the individual monetary remedies. Monetary remedies available under the laws enforced by the EEOC are as follows:

      lost wages and prejudgment interest (all statutes)

    1. liquidated/double damages (ADEA and EPA)

    2. compensatory damages (Title VII and ADA cases involving intentional discrimination)

    3. punitive damages (Title VII and ADA cases in which the employer acts with reckless disregard of the federally protected rights of the individual)

    4. the sum of punitive damages and future compensatory damages may not exceed the following amounts, per person:
      • $50,000 for employers with 15-100 employees
      • $100,000 for employers with 101-200 employees
      • $200,000 for employers with 201-500 employees
      • $500,000 for employers with more than 500 employees
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Can an Employer take action against an employee who has filed a charge?

    No. The EEOC-enforced statutes contain strong protections against retaliation for having filed an EEOC charge, even if the charge is later dismissed by the EEOC or rejected by a court.

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What should an Employer do to prevent retaliation against and preserve relationships with current employee charging parties?

    The charge should be treated confidentially. If the charging party is a current employee, make sure no employee retaliates against the person filing the charge. Make clear to employees who file charges that their relationship with the company will not be affected. As to former employees, be sure that the EEOC filing does not affect the nature of any references given.

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What are Fair Employment Practices Agencies and how do they relate to the EEOC?

    There are more than 100 state and local Fair Employment Practices Agencies (FEPAs). The EEOC has cooperative relationships with all but a few of them. The EEOC and the FEPAs it works with have reached Worksharing Agreements that divide up their common workload of charges in order to avoid duplication of charge processing. Each charge of discrimination that is covered by both an EEOC-enforced statute and the FEPAs law or ordinance is dual-filed under both laws, regardless of which agency receives it. These dual-filed charges are typically investigated by only one agency. This way, employers avoid two investigations of the same matter, but the legal rights of the charging parties are still preserved under both laws.

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What should an Employer do if they get the same charge from the EEOC and also from a state or local FEP agency?

    If this occurs, the employer should bring the matter to the attention of both agencies and they should be able to resolve the issue.

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If an Employer settled a discrimination charge that was handled by my local FEPA and received a separate dismissal notice from the EEOC?

    Most charges are dual-filed under both state and federal law. Regardless of which agency is processing the charge, both agencies have to close their respective case files. All that is happening in this instance is that the EEOC has accepted the state agency`s resolution and has closed its case.

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How can an Employer tell if a charge is dual-filed with both the EEOC and a state or local FEPA?

    The top of the charge form and the notice of charge form will usually indicate whether the charge has been filed with both the EEOC and a FEPA. If there is any doubt, ask the EEOC staff person handling the charge.

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When an EEOC charge is dual-filed with a FEPA, and the EEOC decides that it does not have jurisdiction or does not believe feder

    Maybe. Some state and local FEP laws have longer charge filing periods, cover more employers (such as smaller employers than those covered by the federal anti-discrimination laws) or provide greater protections than federal law (such as laws prohibiting marital status discrimination). In such cases, the FEPA may continue to investigate the charge.

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What are COBRA benefits?

    INTRODUCTION

    Health insurance programs allow workers and their families to take care of essential medical needs. These programs can be one of the most important benefits provided by your employer. There was a time when group health coverage was available only to full-time workers and their families. That changed in 1985 with the passage of health benefit provisions in the Consolidated Omnibus Budget Reconciliation Act (COBRA). Now, terminated employees or those who lose coverage because of reduced work hours may be able to buy group coverage for themselves and their families for limited periods of time. If you are entitled to COBRA benefits, your health plan must give you a notice stating your right to choose to continue benefits provided by the plan. You have 60 days to accept coverage or lose all rights to benefits. Once COBRA coverage is chosen, you are required to pay for the coverage.

    WHAT IS THE CONTINUATION HEALTH LAW?

    Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA){1} health benefit provisions in 1985. The law amends the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage that otherwise would be terminated.

    COBRA contains provisions giving certain former employees, retirees, spouses and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available in specific instances. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer formerly paid a part of the premium. It is ordinarily less expensive, though, than individual health coverage.

    The law generally covers group health plans maintained by employers with 20 or more employees in the prior year. It applies to plans in the private sector and those sponsored by state and local governments.{2} The law does not, however, apply to plans sponsored by the Federal government and certain church-related organizations.

    Group health plans sponsored by private sector employers generally are welfare benefit plans governed by ERISA and subject to its requirements for reporting and disclosure, fiduciary standards and enforcement. ERISA neither establishes minimum standards or benefit eligibility for welfare plans nor mandates the type or level of benefits offered to plan participants. It does, though, require that these plans have rules outlining how workers become entitled to benefits.

    For COBRA purposes, a group health plan ordinarily is defined as a plan that provides medical benefits for the employer`s own employees and their dependents through insurance or otherwise (such as a trust, health maintenance organization, self-funded pay-as-you-go basis, reimbursement or combination of these). Medical benefits provided under the terms of the plan and available to COBRA beneficiaries may include:

    • Inpatient and outpatient hospital care
    • Physician care
    • Surgery and other major medical benefits
    • Prescription drugs
    • Any other medical benefits, such as dental and vision care
    • Life insurance, however, is not a benefit that must be offered to individuals for purposes of health continuation coverage.

    {1}The original continuation health provisions were contained in Title X of COBRA, which was signed into law (Public Law 99-272) on April 7, 1986.
    {2}Provisions of COBRA covering state and local government plans are administered by the U.S. Public Health Service within the Department of Health and Human Services.

    WHO IS ENTITLED TO BENEFITS?

    There are three elements to qualifying for COBRA benefits. COBRA establishes specific criteria for plans, beneficiaries and events which initiate the coverage.

    PLAN COVERAGE

    Group health plans for employers with 20 or more employees on at least 50 percent of the working days in the previous calendar year are subject to COBRA. "Employees" include full-time and part-time workers, agents, independent contractors and directors, and certain self-employed individuals eligible to participate in a group health plan.

    A qualified beneficiary generally is any individual covered by a group health plan on the day before a qualifying event. A qualified beneficiary may be an employee, the employee`s spouse and dependent children, and in certain cases, a retired employee, the retired employee`s spouse and dependent children.

    QUALIFYING EVENTS

    "Qualifying events" are certain types of events that would cause, except for COBRA continuation coverage, an individual to lose health coverage. The type of qualifying event will determine who the qualified beneficiaries are and the required amount of time that a plan must offer the health coverage to them under COBRA. A plan, at its discretion, may provide longer periods of continuation coverage.

    The types of qualifying events for employees are:

    • Voluntary or involuntary termination of employment for reasons other than
    • "gross misconduct"
    • Reduction in the number of hours of employment

    The types of qualifying events for spouses are:

    • Termination of the covered employee`s employment for any reason other than "gross misconduct"
    • Reduction in the hours worked by the covered employee
    • Covered employee`s becoming entitled to Medicare
    • Divorce or legal separation of the covered employee
    • Death of the covered employee

    The types of qualifying events for dependent children are:

    • Termination of covered employee`s employment for any reason other than "gross misconduct"
    • Reduction in the hours worked by the covered employee
    • Loss of "dependent child" status under the plan rules
    • Covered employee`s becoming entitled to Medicare
    • Divorce or legal separation of the covered employee
    • Death of the covered employee

    PERIODS OF COVERAGE{3}

    Qualifying Events
    Beneficiary
    Coverage
    Termination
    Employee
    18 month{4}
    Reduced hours
    Spouse
    Dependent child
    á
    Employee entitled
    to Medicare
    Spouse
    Dependent Child
    36 months
    Divorce or
    legal separation
    á
    á
    Death of
    covered employee
    á
    á
    Loss of
    "dependent child"status
    Dependent child
    36 months

    {3}The Omnibus Budget Reconciliation Act of 1986 contained amendments to the Internal Revenue Code and ERISA affecting retirees and family members who receive post-retirement health coverage from employers involved in bankruptcy proceedings begun on or after July 1, 1986. This booklet does not address that group.
    {4}In the case of individuals who qualify for Social Security disability benefits, special rules apply to extend coverage an additional 11 months.

    YOUR RIGHTS: NOTICE AND ELECTION PROCEDURES

    COBRA outlines procedures for employees and family members to elect continuation coverage and for employers and plans to notify beneficiaries. The qualifying events contained in the law create rights and obligations for employers, plan administrators and qualified beneficiaries.

    Qualified beneficiaries have the right to elect to continue coverage that is identical to the coverage provided under the plan. Employers and plan administrators have an obligation to determine the specific rights of beneficiaries with respect to election, notification and type of coverage options.

    NOTICE PROCEDURES

    General Notices
    An initial general notice must be furnished to covered employees, their spouses and newly hired employees informing them of their rights under COBRA and describing provisions of the law. COBRA information also is required to be contained in the summary plan description (SPD) which participants receive. ERISA requires that SPDs containing certain plan information and summaries of material changes in plan requirements be furnished to participants in modified and updated SPDs. Plan administrators must automatically furnish the SPD booklet 90 days after a person becomes a participant or beneficiary or within 120 days after the plan is subject to the reporting and disclosure provisions of the law.

    Specific Notices
    Specific notice requirements are triggered for employers, qualified beneficiaries and plan administrators when a qualifying event occurs. Employers must notify plan administrators within 30 days of an employee`s death, termination, reduced hours of employment, entitlement to Medicare or a bankruptcy.

    Multiemployer plans may provide for a longer period of time. The employee, retiree or family member should notify the plan administrator within 60 days of events consisting of divorce or legal separation or a child`s ceasing to be covered as a dependent under plan rules.

    Disabled beneficiaries must notify plan administrators of Social Security disability determinations. A notice must be provided within 60 days of a disability determination and prior to expiration of the 18-month period of COBRA coverage. These beneficiaries also must notify the plan administrator within 30 days of a final determination that they are no longer disabled.

    Plan administrators, upon notification of a qualifyingevent, must automatically provide a notice to employees and family members of their election rights. The notice must be provided in person or by first class mail within 14 days of receiving information that a qualifying event has occurred.

    There are two special exceptions to the notice requirements for multiemployer plans. First, the time frame for providing notices may be extended beyond the 14- and 30-day requirements if allowed by plan rules. Second, employers are relieved of the obligation to notify plan administrators when employees terminate or reduce their work hours. Plan administrators are responsible for determining whether these qualifying events have occurred.

    ELECTION

    The election period is the time frame during which each qualified beneficiary may choose whether to continue health care coverage under an employer`s group health plan. Qualified beneficiaries have a 60-day period to elect whether to continue coverage. This period is measured from the later of the coverage loss date or the date the notice to elect COBRA coverage is sent. COBRA coverage is retroactive if elected and paid for by the qualified beneficiary.

    A covered employee or the covered employee`s spouse may elect COBRA coverage on behalf of any other qualified beneficiary. Each qualified beneficiary, however, may independently elect COBRA coverage. A parent or legal guardian may elect on behalf of a minor child.

    A waiver of coverage may be revoked by or on behalf of a qualified beneficiary prior to the end of the election period. A beneficiary may then reinstate coverage. Then, the plan need only provide continuation coverage beginning on the date the waiver is revoked.

    HOW COBRA COVERAGE WORKS

    Example 1:

    John Q. participates in the group health plan maintained by the ABC Co. John is fired reason other than gross misconduct and his health coverage is terminated. John may elect and pay for a maximum of 18 months of coverage by the employer`s group health plan at the group rate. (See Paying for COBRA Coverage.)

    Example 2:

    Day laborer David P. has health coverage through his wife`s plan sponsored by the XYZ Co. David loses his health coverage when he and his wife become divorced. David may purchase health coverage with the plan of his former wife`s employer. Since in this case divorce is the qualifying event under COBRA, David is entitled to a maximum of 36 months of COBRA coverage.

    Example 3:

    RST, Inc. is a small business which maintained an insured group health plan for its 10 employees in 1987 and 1988. Mary H., a secretary with six years of service, leaves in June 1988 to take a position with a competing firm which has no health plan. She is not entitled to COBRA coverage with the plan of RST, Inc. since the firm had fewer than 20 employees in 1987 and is not subject to COBRA requirements.

    Example 4:

    Jane W., a stock broker, left a brokerage firm in May 1990 to take a position with a chemical company. She was five months pregnant at the time. The health plan of the chemical company has a pre-existing condition clause for maternity benefits. Even though Jane signs up for the new employer`s plan, she has the right to elect and receive coverage under the old plan for COBRA purposes because the new plan limits benefits for preexisting conditions.

    COVERED BENEFITS

    Qualified beneficiaries must be offered benefits identical to those received immediately before qualifying for continuation coverage.

    For example, a beneficiary may have had medical, hospitalization, dental, vision and prescription benefits under single or multiple plans maintained by the employer. Assuming a qualified beneficiary had been covered by three separate health plans of his former employer on the day preceding the qualifying event, that individual has the right to elect to continue coverage in any of the three health plans.

    If a plan provides both core and non-core benefits, individuals may generally elect either the entire package or just core benefits. Individuals do not have to be given the option to elect just the non-core benefits unless those were the only benefits carried under that particular plan before a qualifying event.

    Non-core benefits are vision and dental services, except where they are mandated by law in which case they become core benefits. Core benefits include all other benefits received by a beneficiary immediately before qualifying for COBRA coverage. Beneficiaries may change coverage during periods of open enrollment by the plan.

    DURATION OF COVERAGE

    COBRA establishes required periods of coverage for continuation health benefits. A plan, however, may provide longer periods of coverage beyond those required by COBRA. COBRA beneficiaries generally are eligible to pay for group coverage during a maximum of 18 months for qualifying events due to employment termination or reduction of hours of work. Certain qualifying events, or a second qualifying event during the initial period of coverage, may permit a beneficiary to receive a maximum of 36 months of coverage.

    Coverage begins on the date that coverage would otherwise have been lost by reason of a qualifying event and can end when:

    • The last day of maximum coverage is reached
    • Premiums are not paid on a timely basis
    • The employer ceases to maintain any group health plan
    • Coverage is obtained with another employer group health plan that does not contain any exclusion or limitation with respect to any pre-existing condition of such beneficiary
    • A beneficiary is entitled to Medicare benefits

    Special rules for disabled individuals may extend the maximum periods of coverage. If a qualified beneficiary is determined under Title II or XVI of the Social Security Act to have been disabled at the time of a termination of employment or reduction in hours of employment and the qualified beneficiary properly notifies the plan administrator of the disability determination, the 18-month period is expanded to 29 months.

    Although COBRA specifies certain maximum required periods of time that continued health coverage must be offered to qualified beneficiaries, COBRA does not prohibit plans from offering continuation health coverage that goes beyond the COBRA periods.Some plans allow beneficiaries to convert group health coverage to an individual policy. In this case, you must be given the option to enroll in a conversion health plan. You usually must enroll in the plan within 180 days before your COBRA coverage ends. The premium is generally not at a group rate. The conversion option, however, is not available if you end COBRA coverage before reaching the maximum period of entitlement or it is unavailable under the plan.

    PAYING FOR COBRA COVERAGE

    Beneficiaries may be required to pay the entire premium for coverage. It cannot exceed 102 percent of the cost to the plan for similarly situated individuals who have not incurred a qualifying event. Premiums reflect the total cost of group health coverage, including both the portion paid by employees and any portion paid by the employer before the qualifying event, plus two percent for administrative costs.

    For disabled beneficiaries, the premium may be increased after 18 months to 150 percent of the plan`s total cost of coverage for the last 11 months of continuation coverage.

    Premiums due may be increased if the costs to the plan increase but generally must be fixed in advance of each 12-month premium cycle. The plan must allow you to elect to pay premiums on a monthly basis if requested by you.

    The initial premium payment must be made within 45 days after the date of the COBRA election by the qualified beneficiary. Payment must cover the period of coverage from the date of COBRA election retroactive to the date of the qualifying event. Premiums for successive periods of coverage are due on the date stated in the plan with a minimum 30-day grace period for payments. No payment, however, need be made earlier than 45 days after the date of the election.

    The due date may not be prior to the first day of the period of coverage. For example, the due date for the month of January could not be prior to January 1 and coverage for January could not be cancelled if payment is made by January 31.

    Premiums for the rest of the COBRA period must be made within 30 days of the due date for each such premium or such longer period as provided by the plan.

    COBRA beneficiaries remain subject to the rules of the plan and therefore must satisfy all costs related to deductibles, catastrophic and other benefit limits.

    CLAIMS PROCEDURES

    Health plan rules must explain how to obtain benefits and must include written procedures for processing claims. Claims procedures are to be included in the SPD booklet.

    You should submit a written claim for benefits to whomever is designated to operate the health plan (employer, plan administrator, etc.). If the claim is denied, notice of denial must be in writing and furnished generally within 90 days after the claim is filed. The notice should state the reasons for the denial. any additional information needed to support the claim and procedures for appealing the denial.

    You have 60 days to appeal a denial and must receive a decision on the appeal within 60 days after that unless the plan:

    • provides for a special hearing, or
    • the decision must be made by a group which meets only on a periodic basis. Contact the plan administrator for more information on filing a claim for benefits. Complete plan rules are available from employers or benefits offices. There can be charges up to 25 cents a page for copies of plan rules.

    ROLE OF THE FEDERAL GOVERNMENT

    Continuation coverage laws are administered by several agencies. The Departments of Labor and the Treasury have jurisdiction over private sector health plans. The United States Public Health Service administers the continuation coverage law as it affects public sector health plans.

    The Labor Department`s interpretative and regulatory responsibility is limited to the disclosure and notification requirements. If you need further information on your election or notification rights with a private sector plan, write to:

    U.S. Department of Labor
    Pension and Welfare Benefits Administration
    Division of Technical Assistance and Inquiries
    200 Constitution Ave., N.W.
    (Room N-5658)
    Washington, D.C. 20210

    The Internal Revenue Service, which is in the Department of the Treasury, is responsible for publishing regulations on COBRA provisions relating to eligibility and premiums. Both Labor and Treasury share jurisdiction for enforcement.

    The U.S. Public Health Service, located in the Department of Health and Human Services, has published Title XXII of the Public Health Service Act entitled "Requirements for Certain Group Health Plans for Certain State and Local Employees." Information about COBRA provisions concerning public sector employees is available from the:

    U.S. Public Health Service
    Office of the Assistant Secretary for Health
    Grants Policy Branch (COBRA)
    5600 Fishers Lane
    (Room 17A-45)
    Rockville, Maryland 20857

    Federal employees are covered by a law similar to COBRA. Those employees should contact the personnel office serving their agency for more information on temporary extensions of health benefits.

    CONCLUSION

    Rising medical costs have transformed health benefits from a privilege to a household necessity for most Americans. The COBRA law creates an opportunity for persons to retain this important benefit.

    Workers need to be aware of changes in health care laws to preserve their benefit rights. A good starting point is reading your plan booklet. Most of the specific rules on COBRA benefits can be found there or with the person who manages your plan.

    Be sure to periodically contact the health plan to find out about any changes in the type or level of benefits offered by the plan.

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What is employment at-will?

    Employment at-will is a term that appears in most employment contracts. It implies that either party is entitled to terminate the agreement without notice for any reason, unless the termination violates federal or state laws or public policy. A notice period may be specified by company policy, for example, in the Employee Handbook, and this could affect at-will status.

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What is the difference between exempt and non-exempt employees?

    Non-exempt employees are covered by the Fair Labor Standards Act (FLSA). The Act sets out the status requirements for employees. Status is dependent on what kinds of duty the employee performs in the course of his or her job. Non-exempt employees are entitled to overtime payment if they work longer than a 40-hour week.

    For executives to be exempt:

    • Their primary duty must be managerial (80 % of their tasks should be managerial; 60 % in retail and services).
    • They have to manage the work of two or more full-time employees.
    • They frequently exercise independent judgment.
    • They have authority to hire and fire employees.

    For administrators to be exempt:

    • Their primary duty is office based or non-manual.
    • They assist a proprietor or executive and perform specialized technical work or special assignments.
    • They frequently exercise independent judgment and discretion.
    • No more than 20 % of their time is devoted to non-administrative functions; 40 % in retail and services.

    For professionals to be exempt:

    • They do original and creative work in fields requiring specialist knowledge.
    • They frequently exercise independent judgment and discretion.
    • Their work requires intellectual acumen and flexibility.
    • No less than 80 % of their time is devoted to professional matters.

    For outside sales people to be exempt:

    • They must be take orders away from the employer`s business and do not devote more than 20 % of their time to non-sales activities.
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What is the purpose of the Family and Medical Leave Act?

    The Family and Medical Leave Act 1993 (FMLA) was created as a way of providing employees with a means of coping with the challenging demands of family and home. It applies to companies with 50 employees or more in one location or 50 employees within a 75-mile radius. It helps workers, who for personal reasons may require time off. It allows up to 12 weeks unpaid leave and the employee at the end of that period is entitled to return to the same or similar position that they were in before they left. The Act covers the following situations:

    1. chronic or terminal illness of a spouse or close relative;
    2. birth or adoption of a child;
    3. employee illness.

    The employee must have been with the company for more than one year and have worked more than 24 hours a week in the year preceding the requested leave. Usually, the employer will require a doctor`s certificate to corroborate the circumstances.

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What is COBRA?

    Cobra stands for Consolidated Omnibus Budget Reconciliation Act (29 U.S.C. 1162). COBRA is a federal law that provides continued health coverage to employees who have quit or lost their jobs for any reason, other than gross misconduct. Coverage continues for up to 18 months after the final date of employment, providing that the company offering the COBRA continues in operation. It covers individuals and their beneficiaries, spouses, dependents, etc. At the culmination of service, the employee elects to choose COBRA and makes a payment to the company or an organization chosen by the company to handle COBRA benefits. There are certain organizations that are exempt from COBRA rules, e.g. church plans and small businesses (less than 20 employees).

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How much severance pay is a full-time employee legally entitled to?

    There is no law that requires an employer to make a severance payment to an employee. However, most employers will offer a minimum of a week for every year worked. Employers in current climes have been getting less and less generous. If there is an amount written down in a contract or a policy specified in the Employee Handbook, then an employee may have the right to sue an employer who refuses to pay up. However, the cost of hiring an attorney for a minimal amount of compensation could far outweigh the benefits.

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Is an employer legally obliged to pay an employee for jury duty?

    Under the Jury Systems Improvement Act 1978 (JSIA) an employer has the right to limit the amount of jury leave days that an employee can take off in one year. Most states have their own rules for dealing with requirements that apply to employers with regard to jury service. Some companies will lay down policies in their Employee Handbook. There is no legal obligation on an employer to pay for time off responding to a call for jury service, although some states do set out qualified rights to payment. Often the law will specify, however, that an employee cannot be fired or discriminated against should they be called to jury service.

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Is a job that involves substantial tips from customers still subject to the minimum wage requirements?

    Minimum wage varies from state to state because some states have elected to adopt a number that is higher than the federally specified sum of $5.15 an hour. When employees receive regularly at least $30 a month in tips, the employer is entitled to reduce the pay to a minimum of $2.13 an hour and credit the tips against the minimum wage requirement. The employee, however, must receive all the money from tips and if the tips are significantly reduced for one month and wages and tips do not fulfill the minimum requirements, then the employer must return to paying minimum wage.

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How much vacation time is an employer obliged to give a full-time employee of long service?

    There is no law that requires employers to pay employees for time off, such as vacation or sick leave. However, most employers do pay for a certain number of days off each year; the amount is often dependent on length of service. The Employee Handbook, if the company has one, will usually specify policy in this regard.

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What is Workers` Compensation?

    The workers` compensation system provides payment to workers who are unable to perform their duties because of an injury or illness sustained in the workplace. In most situations, the employer`s liability is limited to paying wages and medical expenses. Each state has its own statute. If an employee can prove that the employer intentionally caused the illness or injury then the damages can be far more significant.

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How is an employee protected from age discrimination?

    Under the Federal Age Discrimination in Employment Act (29 U.S.C. 621 to 634), a worker over the age of 40 is protected against discrimination for age reasons, including being forced to retire. The Act is enforced by the EEOC. The employee must have been performing their job in a way that met their employer`s expectations up until the point of alleged discrimination.

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What is the definition of an independent contractor?

    In determining the status of a worker as an independent contractor, the party in control of the actual work is key. An independent contractor has license to decide when and how he or she gets the job done not the employer. If needs be, an independent contractor can stay up all night to complete a contract. An independent contractor is not governed by the laws that govern a full-time employee. They operate largely as a small business does and are able to claim tax concessions and benefit from the flexible working arrangement of the self employed.

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My boss keeps making sexual comments to me that I find offensive? Do I have any legal rights?

    There are various steps one can take to end sexual harassment using the legal system. However, these are generally considered only as a last resort. The first step is for the aggrieved party to talk to the person involved and tell them directly how the behavior is affecting them. It is also good practice to report the unreasonable behavior to others. Some organizations have created their own policy and procedure to prevent incidents of sexual harassment from escalating. Complaints can be filed with the EEOC or under state law with the Fair Employment Practices Agency (FEP). A private law suit or tort lawsuit can also be filed.

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Wage and Hour Reference Guide

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What Employers Need to Know

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