Many HR directors and business owners hear about employment laws and automatically assume they are covered. This may not be the case. A quick review of these laws and their coverage can help even the most seasoned HR professional understand your obligations.
Many federal employment laws address a specific issue or problem and apply regardless of the number of employees you have. However, a number of them specify a size threshold and/or have limitations on coverage. Below is a list summarizing the most common of these laws, along with the employee size designation and some general coverage conditions.
* No Employee Size Specified *
– Employee Polygraph Protection Act (EPPA): The EPPA prohibits employers from requiring employees or applicants to take polygraph exams, limits when the exams may be used, and provides significant protections to individuals who take them. It applies to all employers that request polygraph examinations and are engaged in or affect commerce.
– Employee Retirement Income Security Act (ERISA): ERISA requires covered employers to disclose information regarding your benefits plans, including summary plan descriptions, summaries of annual reports, statements of accrued benefits, and, upon request, copies of the plan descriptions, annual reports, and any terminal reports. The law does not specify a number of employees for coverage and instead applies to certain “welfare plans” and employee pension plans established or maintained by an employer engaged in commerce, or in any industry or activity affecting commerce.
– Fair Credit Reporting Act (FCRA): The FCRA applies to any employer that uses outside agencies to perform credit or other background checks (including criminal, reference, or driving record checks). It requires you to comply with comprehensive notice, consent, and disclosure obligations both prior to doing the checks and after the results of the checks are reported. Amendments to the FCRA also require you to properly dispose of any consumer report information and records gathered by a third party.
– Fair Labor Standards Act (FLSA) and the Equal Pay Act (EPA): The FLSA requires covered employers to pay the minimum wage (currently $5.85 an hour) and overtime to nonexempt employees, and the EPA prohibits wage discrimination based on gender. The FLSA’s and EPA’s requirements generally apply if your organization is engaged in commerce or in the production of goods for commerce and to employers that meet the “enterprise coverage test.” An enterprise meets this test if: (1) it does an annual business of $500,000 or more; and (2) two or more employees of the enterprise are engaged in interstate commerce, in the production of goods for interstate commerce, or in operations or processes related and essential to the production of those goods.
– Health Insurance Portability and Accountability Act (HIPAA): HIPAA protects the privacy of certain consumer personal health information and includes insurance portability provisions for employees who leave or lose their jobs. The law applies to “covered entities,” including group health plans, health care clearinghouses, and health care providers. Even if your organization does not fit into these categories, you still may be covered in your role as group health plan provider.
– Immigration Reform and Control Act (IRCA): The IRCA requires every employer to verify employees’ eligibility to work in the United States using the Form I-9 and prohibits national origin discrimination.
– National Labor Relations Act (NLRA): The NLRA allows both union and nonunion employees to form unions and engage in concerted activities involving their terms and conditions of employment. The NLRA applies to employers in all industries affecting commerce.
– Occupational Safety and Health Act (OSH Act): The OSH Act sets workplace health and safety standards for many industries and requires most businesses, at a minimum, to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. The Act applies to employers in any business affecting commerce, and therefore covers most private employers
– Uniformed Services Employment and Reemployment Rights Act (USERRA): The USERRA prohibits discrimination in employment and retaliation against any person who is or applies to be a member of a “uniformed service,” or who performs or has an obligation to perform service in a “uniformed service.” In addition, it requires you to provide military leave to employees and guarantee job reinstatement for up to five years. The law applies to all employers regardless of size.
– Executive Order 11246: This executive order prohibits employers with a federal contract of $10,000 or more from discriminating against employees or job applicants on the basis of race, color, religion, sex, or national origin. No minimum number of employees is required.
– Rehabilitation Act: The Rehabilitation Act requires employers with federal government contracts or subcontracts valued in excess of $10,000 per year to take affirmative action to employ and advance in employment qualified, disabled individuals and prohibits discrimination against them. In addition, covered employers must provide reasonable accommodation to disabled individuals. No minimum number of employees is required.
– Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA): The VEVRAA requires employers that have a federal contract of $100,000 or more to include in the contract a provision requiring them to take affirmative action to employ and promote certain qualified veterans. No minimum number of employees is required. (See below for requirements for written affirmative action plans for certain employers with 50 or more employees.)
* Employers with 15 or More Employees *
– Americans with Disabilities Act (ADA): The ADA prohibits covered employers from discriminating against disabled applicants and employees and requires you to provide disabled individuals with reasonable accommodation.
– Title VII of the Civil Rights Act of 1964 (Title VII): Title VII prohibits covered employers from discriminating based on an individual’s race, color, religion, sex, or national origin.
* Employers with 20 or More Employees *
– Age Discrimination in Employment Act (ADEA): The ADEA prohibits covered employers from discriminating against individuals who are age 40 or older.
– Consolidated Omnibus Budget Reconciliation Act (COBRA): COBRA requires covered employers that provide group health plans to offer “qualified beneficiaries” continuing health insurance coverage, at their expense, after certain qualifying events occur, such as the termination of employment
* Employers with 50 or More Employees *
– Family and Medical Leave Act (FMLA): The FMLA requires covered employers to provide up to 12-weeks of job-protected leave to eligible employees for certain family and medical reasons.
– Executive Order 11246: The Executive Order requires employers with a federal contract of $50,000 or more and 50 or more employees to have written affirmative action plans regarding the utilization of minorities and females.
– Rehabilitation Act: The Rehabilitation Act requires employers with a federal contract of $50,000 or more and 50 or more employees to have written affirmative action plans regarding the utilization of the disabled.
– Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA): The VEVRAA requires employers with a federal contract of $50,000 or more and 50 or more employees to have written affirmative action plans regarding the utilization of certain veterans.
* Employers with 100 or More Employees *
– Title VII of the Civil Rights Act of 1964 (Title VII): Title VII requires covered employers to keep the latest annual Standard Form 100 (EEO-1) report at each reporting unit or at company or division headquarters. The EEO-1 form requires covered employers to report to the Equal Employment Opportunity Commission each September 30th the ethnic and racial composition of their workforce, broken down by gender and job classification.
– Worker Adjustment and Retraining Notification Act (WARN Act): The WARN Act requires covered employers to provide 60 days’ advance written notice of certain larger-scale layoffs and facility closings that will cause an “employment loss” at a single work site during any 30-day period.