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Part Time Employment Laws by qbc12987

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Part Time Employment Laws document sample

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									     Employment Law

A Brief Overview for Managers and
           Supervisors
             Today’s Topics
•   Employee Handbooks
•   Americans With Disabilities Act
•   Family and Medical Leave Act
•   Title VII – Discrimination
•   Unemployment Compensation
•   Fair Credit Reporting Act
           Not Covered Today
•   OSHA
•   Wage and Hour Law
•   Wrongful Termination
•   Employee Evaluation and Documentation
•   Drug and Alcohol Testing
•   Independent Contractors
•   Unions
•   Polygraph Testing
•   Employee Monitoring
•   Workers’ Compensation
         Employee Handbooks
•   Not a contract
•   Establishes Appropriate Expectations
•   Creates a Sense of Fairness
•   Covers All Necessary Topics
•   Not a Policies and Procedures Manual
•   Review and Update Regularly
Americans With Disabilities Act
Americans With Disabilities Act
• www.eeoc.gov for information on ADA
• Covers employers with 20 or more
  employees in the current or prior calendar
  year – including part-time employees
• Protects “qualified individuals with
  disabilities”
      Person With A Disability
• Has a physical or mental impairment that
  substantially limits one or more major life
  activities; or
• Has a record of being substantially limited;
  or
• Is regarded as being substantially limited
           Major Life Activities
Walking         Speaking    Breathing

Manual Tasks    Seeing      Hearing

Learning        Self Care   Working

Sitting         Standing    Lifting

Reading         Obesity ?
        Record of Impairment
• Person with a history of a disability; or
• Disability is either controlled, cured, or in
  remission
       Regarded As Impaired
• Person with a minor impairment is treated
  as if the impairment if a major one; or
• Person has an impairment that is a problem
  because of the perception of others; or
• Person has no impairment, but the employer
  believes he or she does
         Qualified for the Job
• Qualifies for the position by education,
  training, experience, etc.
• Is able to perform the essential functions of
  the job
• Accurate and complete job descriptions are
  of critical importance
       Not Covered By ADA
• Illegal drug use, if current, but possibly
  protected if in past
• Gay and lesbian workers
• Sexual and behavioral disorders
• Physical and psychological characteristics
  such as poor judgment, anger control or
  cultural or economic disadvantages
   Reasonable Accommodation
• Required at every step of the employment
  process from hiring to promotion, including
  access to benefits
• Employer not required to suffer undue
  hardship, such as significant expense or
  difficulty
• Employee does not get to choose the
  accommodation
   Reasonable Accommodation
• Improve accessibility
• Provide aids
• Restructure job to exclude non-essential
  functions
• Modify schedule
• Call the Job Accommodation Network at
  800-526-7234 or www.jan.wvu.edu
        Medical Information
• No medical questions during application
  process
• No medical exams until after a conditional
  offer of employment – must be required of
  all applicants
• No medical exams of employees unless job-
  related and necessary
Family and Medical Leave Act
 Family and Medical Leave Act
• Employer is covered if it has 50 employees
  (including full-time, part-time and
  employees on leave) within a 75 mile radius
• Employee is covered if she has worked for
  the employer for 12 months and has worked
  at least 1250 hours in the 12 months prior to
  the leave
  Birth, Adoption or Foster Care
• 12 weeks of unpaid leave – total of 12 weeks for
  both parents if they have the same employer
• Must be taken within 12 months of the birth,
  adoption or placement
• Expectant mother may take leave for prenatal care
• Leave can begin before adoption or foster care for
  associated activities
        Family Health Problem
• 12 weeks of unpaid leave within a 12 month
  period to care for a spouse, son, daughter, or
  parent with a serious health condition
• A serious health condition is one that requires
  inpatient care; requires continuing treatment and
  restricts normal activities for more than three
  days; or requires continuing care for a chronic,
  long-term or permanent condition
     Employee Health Problem
• 12 weeks of unpaid leave in a 12 month period for
  a serious health condition that makes the employee
  unable to perform the job
• A serious health condition is one that requires
  inpatient care; requires continuing treatment and
  restricts normal activities for more than three
  days; or requires continuing care for a chronic,
  long-term or permanent condition
                  Solutions
•   Intermittent leave
•   Reduced hours
•   Work from home
•   Full leave
•   Temporary transfer to another job
•   Maintain confidentiality
      Substituting Paid Leave
• FMLA leave is unpaid
• Employer or employee can substitute
  accrued paid time such as vacation,
  personal, family, or sick leave for unpaid
  FMLA leave
• Employee can only substitute paid leave if
  the paid leave is covered under existing
  policies
             Advance Notice
• If the leave is foreseeable, the employee must give
  30 days notice or notify as soon in advance as
  practicable
• If the leave is unforeseeable, the employee can
  notify you by phone, fax or e-mail of the need for
  FMLA leave
• If the leave is for planned medical treatment, the
  employer can require scheduling for minimum
  disruption
   Certification From Physician
• The date the serious medical condition
  began
• The length of time the condition is likely to
  continue
• Diagnosis of the condition
• Treatment Prescribed
• Whether inpatient treatment is required
   Certification From Physician
• Clarification of whether the employee can’t
  perform work of any kind or can’t perform
  the essential functions of the job
• Clarification of need for intermittent leave
• Second or third medical opinions can be
  obtained at employer expense
• Recertification permitted at reasonable
  intervals
            Health Insurance
• Must continue coverage on the same basis
• Employer can get reimbursement of health
  insurance costs if the employee does not
  return at the end of leave, unless the reason
  is a continuation or recurrence of the
  condition or there are other circumstances
  beyond the employee’s control
            Return to Work
• Employee usually has the right to return to
  his original or similar job with equivalent
  pay, benefits and other terms of
  employment
• Lay-off exception
• Highly paid employee exception
• Can require certification of fitness to work
              Be Careful
• Interplay with ADA, Title VII, and
  Pregnancy Discrimination Act
• See www.eeoc.gov for more information
• FMLA is enforced by the Department of
  Labor
• See www.dol.gov
• DON’T retaliate against employees who
  take FMLA leave
Title VII Discrimination
    Other Discrimination Statutes
•   ADEA – Age Discrimination in Employment Act
•   Pregnancy Discrimination Act
•   Immigration Reform and Control Act
•   Equal Pay Act
•   ADA
•   National Labor Relation Act
•   Delaware Employment Statutes
 Title VII of the Civil Rights Act
• Applies to businesses that employ 15 or more
  people –either full or part-time
• Prohibits discrimination based on race, color,
  religion, gender, or national origin
• Prohibits sexual harassment
• Prohibits discrimination in hiring, promotion,
  dismissal, pay, benefits, work assignments, leave
  or any other aspect of the employment relationship
      Types of Discrimination
• Direct Discrimination
• Indirect Discrimination – apparently neutral
  policies that disproportionately impact
  protected groups and do not reflect a valid
  business reason
• Bona Fide Occupational Qualification –
  discrimination permitted if BFOQ exists
            Enforcement
• EEOC and Delaware Department of Labor
  share enforcement
• Investigation
• Cause determination
• Conciliation – confidential proceeding
• Right to sue letter
• Direct enforcement by EEOC
                   Remedies
• Order to hire, rehire, reassign, or promote the
  employee
• Compensate the employee for all lost pay and
  benefits
• Pay damages for emotional distress, mental
  anguish or inconvenience
• Change policies
• Pay punitive damages if malicious or reckless
• Pay employee’s legal fees
               Retaliation
• Employer may not retaliate against an
  employee for opposing discrimination,
  filing a complaint, or cooperating with an
  investigation of a complaint
• Legal defense against retaliation claim is
  that the adverse job action was taken for a
  legitimate business reason unrelated to the
  discrimination complaint
           Sexual Harassment
• Sexual harassment is a form of gender
  discrimination
• Occurs when unwelcome sexual advances,
  requests for sexual favors, and other verbal or
  physical conduct of a sexual nature creates a
  hostile or abusive work environment
• No need to show physical or psychological injury
• The same rules apply to harassment of other
  protected groups
        Types of Harassment
• Unwelcome advances or requests for sexual
  favors in exchange for job benefits or
  continued employment
• Posting sexually explicit materials
• Telling demeaning jokes or making
  derogatory comments
• Can be any gender combination
                Compliance
• Employer is responsible for all harassment it knew
  or should have known was being committed,
  including those by vendors or customers
• Legal duty to undertake necessary steps to prevent
  or stop sexual harassment
• Have a policy and train employees
• Have a confidential avenue for complaints
• Investigate all complaints promptly
              Compliance
• If an employer has a policy and handles
  complaints in good faith, the employee must
  take advantage of the internal complaint
  system or she may lose the right to sue
• Retaliation is illegal
             Model Policy
• State clearly that harassment will not be
  tolerated
• Provide a safe avenue for complaints – and
  then provide a back-up
• Distribute the policy
• Train employees, supervisors and managers
• Enforce the policy
Unemployment Compensation
  Unemployment Compensation
• Meant to help workers who are unemployed
  through no fault of their own
• Liberally construed in favor of the
  employee
• Doesn’t cover resignation
• Doesn’t cover termination for cause
• Does cover lay-offs
Fair Credit Reporting Act
      Fair Credit Reporting Act
• Strict rules on ordering and use of consumer
  reports, including credit reports, background
  checks, and other information from a Credit
  Reporting Agency (CRA)
• CRA’s include credit bureaus and any other third
  party you pay to gather information such as
  driving records, criminal reports or interviews
  with former employers or associates
• Doesn’t apply if employer gathers information
       Requirements of FCRA
• Before obtaining a consumer report, the employer
  must notify the applicant or employee in writing
  and get written permission to proceed
• Before adverse action can be taken based on
  information in the report, employer must provide a
  written preadverse decision disclosure that
  includes publications prepared by the Federal
  Trade Commission
The End
        Requirements of FCRA
• After employer takes adverse action, it must notify
  the person orally, in writing, by fax, or by e-mail
• Notice must include the name address and phone
  number of the CRA
• State that the CRA did not make the adverse
  decision
• State that the person has the right to dispute the
  accuracy or completeness of the information
• State that the person has the right to obtain a free
  report within 60 days

								
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