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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