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Finding Talent and Labor Laws March 7, 2012 Presented by Grace H. Lee, Esq. Hiring New Employees. Anti-Discrimination Laws: Federal and state laws prohibit hiring procedures which discriminate on the basis of protected characteristics

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Finding talent and labor laws march 7 2012 presented by grace h lee esq

Finding Talent and Labor Laws

March 7, 2012

Presented by Grace H. Lee, Esq.

Hiring new employees
Hiring New Employees

  • Anti-Discrimination Laws: Federal and state laws prohibit hiring procedures which discriminate on the basis of protected characteristics

  • Applies to discrimination in: hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of various protected characteristics.

Protected categories

D.C. Adds:

Sexual Orientation

Marital Status


Family Responsibilities

Familial Status

Gender Identity

Personal Appearance

Political Affiliation

Genetic Information

Other Categories

Protected Categories


  • Sex

  • Race

  • Age

  • Religion

  • National Origin

  • Color

  • Disability

  • Veterans Status

  • Pregnancy

Hiring new employees1
Hiring New Employees

  • Hiring process

    • Consistency is key (application, interview, background check, etc).

  • Pre-Employment Inquiries

    • Interviewing Do’s and Don'ts (illegal questions)

    • Testing (ensure consistency)


    • Respond to request for reasonable accommodation

  • Background Checks (Credit & Criminal)

    • Can be done (and, in some cases, it is mandatory)

    • Must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws

    • Must notify the applicant

    • Offense must be job related to be used as basis of employment decision

Hiring the at will doctrine
Hiring: The At-Will Doctrine

  • The “at-will” employment relationship means you may terminate for any reason or no reason at any time, with or without notice.

  • Caveat: You cannot terminate an at-will employee for an illegal reason (i.e. discrimination, retaliation) or in a manner contrary to an agreement.

  • Offer letter v. employment agreement

    • Offer Letter

      • Important if you have weak or non-existent employment policies or employee manual.

      • Can be used to clarify issues raised during the recruitment process and set expectations from both parties.

      • Typically not for a term and should contain affirmation of at-will status.

    • Employment Contract

      • Typically at odds with the at-will concept, and it should be drafted as such.

      • Used as a recruitment and retention tool.

      • Used to protect highly sensitive and proprietary information through the use of restrictive covenants.

      • Normally recommended only for executives, professionals or confidential (i.e., IT) positions.

  • Ensure consistency with employee handbook

Hiring immigration compliance
Hiring: Immigration Compliance

  • Form I-9

    • Verify that employees are legally authorized to work in the U.S.

      • Does not apply to volunteers

      • Does not apply to independent contractors

    • Refrain from discrimination against individuals based on national origin, race, or citizenship

    • Must complete Form I-9 within three business days of the first day of work for pay

    • Begin I-9 process after you offer the job and the employee accepts

    • Social security number is voluntary

    • Do not ask request specific documents – let the employee pick from list of options on the form

    • Maintain for three years after the date of hire, OR one year after the date of termination, whichever is later

    • Keep I-9 separate from other personnel file documents

Wage hour and leave issues
Wage & Hour and Leave Issues

  • The Law:

    • The Family & Medical Leave Act of 1993 (FMLA)

    • The Fair Labor Standards Act

  • Exempt/Non-Exempt Status

  • Independent Contractors

  • Alternative Work Arrangements (e.g. flextime)

    • Consistency is key. Employees must have equal access to work arrangements, to avoid discrimination claims

      • Create policies (e.g. Telecommuting Policy and Agreement)

Family and medical leave act
Family and Medical Leave Act

  • Federal law and District of Columbia

  • Updated regulations for Federal FMLA and DC FMLA

  • Federal FMLA provides up to 12 weeks of family and medical leave per 12 month period

  • Federal FMLA provides up to 26 weeks of military family leave in a 12 month period

  • DC FMLA provides up to 16 weeks of family leave AND 16 weeks of medical leave in a 24-month period

  • Federal and D.C. FMLA run concurrently, if applicable

  • Should comply with the law that provides employee with greater benefit

Fmla coverage
FMLA Coverage

  • Federal

    • Must be employed by an employer with 50 or more employees in a 75 mile radius of the place the employee works

    • Employee must have worked at least 1,250 hours during the previous 12 months prior to the request for leave

  • DC

    • Employer must have at least 20 employees

    • Employee must have worked at least 1,000 hours in the 12-month period immediately preceding the request for leave

    • Employment must be without a break in service

Fmla leave benefits
FMLA Leave Benefits

  • Job Security

    • Must hold position

    • Employee entitled to return to same or equivalent job

    • May fill position temporarily until employee returns

    • Can eliminate job if would have done so even if employee not out on leave

  • Unpaid leave

  • Benefits

    • Employer must continue to receive benefits during the leave

    • Health insurance must continue as if the employee was still working

  • No loss of benefit or seniority accrued prior to the start of the employee’s leave

Federal and dc fmla reasons for leave
Federal and DC FMLAReasons for Leave

  • Birth of a child or to care for a newborn child;

  • Placement of a child with the employee for adoption or foster care, or placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility;

  • Employee is needed to care for a “family member” with a serious health condition;

  • Employee’s own ‘serious health condition’ that makes the employee unable to perform the functions of the job

Military leave entitlement
Military Leave Entitlement

  • Under Federal Military FMLA an eligible employee may take leave for the following reasons:

    • To address certain qualifying exigencies arising out of the fact that the spouse, or a son, daughter or parent of the employee is on ‘covered active duty’ (or has been notified of an impending call or order to covered active duty) in the Armed Forces

      • Up to 12 workweeks of leave in a 12-month period (rolling back)

    • To address military caregiver leave to care for a son, daughter, parent, or next of kin who is an injured or ill servicemember or veteran

      • Up to 26 workweeks of leave in a 12-month period (rolling forward)

Dc accrued sick and safe leave act
DC Accrued Sick and Safe Leave Act

  • ASSLA provides paid sick leave for absences due to the employee’s or family member's medical condition, domestic violence or sexual abuse

  • Up to seven days of paid leave per year

  • Reasons for leave

    • Absence resulting from physical or mental illness, injury, or medical condition of the employee

    • Absence resulting from obtaining professional medical diagnosis or care, preventative medical care (must make reasonable efforts to schedule leave so it does not unduly disrupt school’s operations)

    • Absence for purpose for caring for a child, parents, spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care described above

    • Absence if the employee or employee’s family member is a victim of stalking, domestic violence, or sexual abuse

Wage and hour
Wage and Hour

  • Federal law - Fair Labor Standards Act (FLSA)

  • DC same as Federal for exempt v. nonexempt

  • Two Classifications

    • Overtime eligible (non-exempt)

      • Entitled to overtime pay (one and half times the regular rate of pay) for hours worked over forty in a workweek

      • Paid hourly

      • Salaried employees can be overtime eligible

    • Non-Overtime eligible (exempt)

      • Paid the same amount regardless of number of hours worked

      • Must meet certain requirements to be exempt from overtime pay

  • Employee or independent contractor
    Employee or Independent Contractor

    • Legal Tests (no more 20-factor test)

      • Integral part of business

      • Permanency of relationship

      • Who supplies facilities and equipment

      • Opportunities for profit and loss

      • Provides this work for other employers

      • Managed by company employees or independent

    • Independent Contractor Agreement

    Employment separation
    Employment Separation

    • Separation and Release Agreements (Severance)

      • Necessary in some circumstances

        • Troublesome termination

        • Protected category (i.e. race, disability)

        • High salary

        • High profile

    • Confer with counsel to ensure that the agreements properly protect the company and are legally enforceable.

    Employment separation1
    Employment Separation

    • Separation and Release Agreements

      • Typical provisions:

        • Date of termination - mutual parting, with non-disparagement

        • Severance with specific terms (withhold taxes)

        • General Release (for all entities), with promise not to sue

          • OWBPA language, consult a lawyer, 21 days to consider, 7 days to revoke ADEA release

        • Survival of Restrictive Covenants

    Employment separation2
    Employment Separation

    • Exit Interviews

    • Post-Employment Benefits Entitlement

    • The Return of Property & Confidential Information

      • Company Confidentiality Policy