At Work With Employment Laws

Title VII of the Civil Rights Act of 1964 and state extensions of Title VII when added to the ADA, FMLA, ADEA, EPA, FLSA, USERRA, PDA, OSHA, OFCCP, Affirmative Action, Workers Compensation, Minimum Wage, with many others, create a firestorm of confusion for those who are unfamiliar with employment laws. What is confounding is that any one of these laws with the exception of Title VII can change abruptly with court decisions and also yearly with Congressional, state, local, or legal decisions or actions. If an employer or an employee were to actually take a comprehensive look at the myriad of employment laws that protect the employee or that the employer is legally required to be aware of and adhere to, their heads would spin!

Employers and employees constantly ask me the question, "Does this law pertain to me? The answer is not always a pure yes or no. An employment law may apply to some employers or employees and may not with others depending upon how many employees an employer has or possibly whether the employer is a federal contractor or not or even s where the employer may be located.

A perfect example is Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based upon race, religion, color, national origin, sex or handicap. Maryland takes this a few steps further to include sexual preference, familial status, and genetic code. Baltimore Maryland takes it even one step further with protection for the category of transgender. Since Johns Hopkins Hospital is within the Baltimore city limits, it must adhere to all of the above stated protected categories. A neighboring employer in a city such as Towson adjacent to the Baltimore city limits would not have to have protection for transgender and a city such as McLean, Virginia less than 45 miles away would not have protection for genetic code, transgender, or familial status but would still maintain the Federal law that applies to everyone...well almost everyone.

Now, when you take into consideration that Title VII and any or all extensions thereof is applicable to only for employers of who have 15 or more employees, the ADEA applies to employers who have 20 or more employees, and the EPA applies to employers with any number of employees, the confusion for employers and employees is readily apparent.

Employment laws sometimes contradict long established personnel policies that have failed to realize changes through legislation or legal decisions that affect compensation, payment of earned vacation or other earned benefits. Those contradictions can be a ticking time bomb waiting for a lawsuit to occur or for sanctions to be applied. The Federal Department of Labor or EEOC, just like the IRS with taxes, is not amenable to employers claiming to be ignorant of employment laws that pertain to them.

What can be done to prevent either a misapplication or violation of employment laws? First of all an employer contemplating opening a business should be cognizant of employment laws that pertain to that business prior to opening the door for their first day. Second, the employer should hire a professional EEO Officer well trained with expert knowledge and application of employment laws and who is an experienced EEO Investigator in the workplace. Employers should not rely solely upon human resource generalist to make these decisions. While HR generalist may have some knowledge of employment laws, it has been my experience that an EEO specialist will be a welcomed addition to that HR staff. Much larger firms or businesses should of course consider hiring both an EEO specialist and a labor law attorney especially when government contracts are involved.

Courts will generally ask an employer during a discrimination law suit how employment laws are disseminated to their employees. Are they merely posted on a bulletin board (which some are required to be posted) and the employee given a handbook to read, or are employees provided this valuable information on the day of hire through an orientation with supplemental training throughout the year? It is in the best interests of an employer to hire experienced EEO professionals and/or legal counsel. Doing so will lessen liability they will likely incur if there are discrimination lawsuits. The bottom line for an employer is that an employer may actually prevent that one damaging lawsuit from occurring. How they do that is by taking the affirmative steps to ensure compliance with the law and applying all of the employment laws with the genuine intent to ensure full equal employment opportunity.

John Paul Fuller, MA, MS