FAQTEXT-Emp Other

Lie Detector Testing

Equal Pay Act

"Wrongful Termination"

Returning Armed Forces Protection

Employment Law – Lie Detector Testing

Employer use of lie detector tests is limited by the Employee Polygraph Protection Act. The Act limits the use of polygraph tests by most private employers. Federal, State and local government employers are exempt from the Act. Private employers in the security business and employers authorized to manufacture, distribute or dispense controlled substances are also exempt.

In general, an employer cannot require or even suggest that an employee or prospective employee take a polygraph test. The only exception is for investigations involving economic loss or injury to the employer’s business. This includes theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage. The employer must also have a reasonable suspicion that the employee was involved in the incident that is being investigated and the employee must have had access to the property that is the subject of the investigation. If an employer requests that an employee submit to a polygraph test as part of an ongoing investigation, strict requirements must be adhered to regarding notice to the employee, administration of the test, and use of the results. The employer must provide the employee with a statement that provides the basis for requesting the examination that is signed by an authorized representative of the company. The employer must also provide the employee with information about his or her rights and remedies under the Act.

The employee has the right to terminate the test at any time. The employee cannot be asked questions that are degrading or that ask about the employee’s political or religious beliefs, sexual behavior, or legal activities involving unions or labor organizations. Furthermore, the person who administers the test must be a qualified and licensed polygraph examiner who is bonded or carries sufficient liability insurance. The Act also limits the disclosure of the results of the test and the employer’s use of the results. An employer who violates the Act could be subject to a civil penalty of up to $10,000. Also an employee or prospective employee who is affected by the employer’s violation of the act can maintain a private civil action for employment, reinstatement, promotion and the payment of lost wages

Employment Law – FEDERAL Equal Pay ACT

The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Specifically, the EPA provides:

Employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. Each of these factors is summarized below:

• Skill - Measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master's degree in physics, since that degree would not be required for the job.

• Effort - The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.

• Responsibility - The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers' personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.

• Working Conditions - This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards.

• Establishment - The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. However, in some circumstances, physically separate places of business should be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to work locations, the separate work sites can be considered part of one establishment.

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as "affirmative defenses" and it is the employer's burden to prove that they apply.

In correcting a pay differential, no employee's pay may be reduced. Instead, the pay of the lower paid employee(s) must be increased.

Title VII, ADEA, and ADA

Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the claimant's job be substantially equal to that of a higher paid person outside the claimant's protected class, nor do these statutes require the claimant to work in the same establishment as a comparator.

Compensation discrimination under Title VII, the ADEA, or the ADA can occur in a variety of forms. For example:

• An employer pays an employee with a disability less than similarly situated employees without disabilities and the employer's explanation (if any) does not satisfactorily account for the differential.

• A discriminatory compensation system has been discontinued but still has lingering discriminatory effects on present salaries. For example, if an employer has a compensation policy or practice that pays Hispanics lower salaries than other employees, the employer must not only adopt a new non-discriminatory compensation policy, it also must affirmatively eradicate salary disparities that began prior to the adoption of the new policy and make the victims whole.

• An employer sets the compensation for jobs predominately held by, for example, women or African-Americans below that suggested by the employer's job evaluation study, while the pay for jobs predominately held by men or whites is consistent with the level suggested by the job evaluation study.

• An employer maintains a neutral compensation policy or practice that has an adverse impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity. For example, if an employer provides extra compensation to employees who are the "head of household," i.e., married with dependents and the primary financial contributor to the household, the practice may have an unlawful disparate impact on women.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on compensation or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII, ADEA, ADA or the Equal Pay Act.

Employment Law – "Wrongful Termination"

What Constitutes Wrongful Termination?

Wrongful termination might not mean what you think it does in the legal sense. That's because, what we as considerate human beings think is unfair or unethical treatment in the workplace, is not necessarily illegal. However unfair, for it to be the illegal act of wrongful termination, an employer must violate a specific state or Federal law, regulation or constitutional provision. Unfortunately, there's no such thing that generally protects employees from "crummy deals" or "unfair" treatment per se. It's important to also note that most states consider employment to be "at will" in legal jargon. In plain English, the Employment At-Will Doctrine (see below) means that, in the absence of enforceable employment agreements stating otherwise, employment is presumed to be voluntary and indefinite for both employees and employers. As an at-will employee, you may quit your job whenever you want, usually without consequence. On the flip side, at-will employers may terminate you whenever they want, usually without consequence.

What does "Employment at Will" mean?

As are many employees only after the fact, you might be surprised to learn in advance that U.S. employers may legally fire you for just about any reason, no reason or even an unfair reason. That's partially because there are relatively few labor laws that protect workers from wrongful termination and none that generally protect from workplace "unfairness" per se. But it's more so because most states consider employment to be "at will" in legal jargon. In plain English, the Employment At-Will Doctrine means that employment is presumed to be voluntary and indefinite for both employees and employers. As an at-will employee you may quit your job whenever and for whatever reason you want, usually without consequence. In turn, at-will employers may terminate you whenever and for whatever reason they want, usually without consequence. Either party may end the relationship without prior notice, but neither party may breach an enforceable employment contract without consequence. Employers cannot violate state or Federal laws, and generally cannot rightfully terminate employees who refuse to do something that is contrary to public policy or is illegal.

Employment Law – Returning Armed Forces

USERRA In A Nutshell:

The employment rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service are protected under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA). USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in the United States uniformed services. The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Generally, the pre-service employer must reemploy service members returning from a period of service in the uniformed services.

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

Note that USERRA and some equal employment opportunity (EEO) laws prohibit discrimination in employment decisions, such as termination, on the basis of veteran status. USERRA prohibits employers from discriminating against past and present members of the uniformed services and applicants to the uniformed services. Under laws enforced by DOL's Employment Standards Administration's Office of Federal Contract Compliance Programs (OFCCP), qualified special disabled veterans, Vietnam era veterans, recently separated veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, are also protected against discrimination. See Discrimination for additional information.

Who is Covered

The Uniformed Services Employment and Re-employment Rights Act (USERRA) was signed on October 13, 1994. The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services."

USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

Basic Provisions/Requirements

The pre-service employer must re-employ service members returning from a period of service in the uniformed services if those service members meet five criteria:

▪ The person must have held a civilian job;

▪ The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable;

▪ The cumulative period of service must not have exceeded five years;

▪ The person must not have been released from service under dishonorable or other punitive conditions; and

▪ The person must have reported back to the civilian job in a timely manner or have submitted a timely application for re-employment.

USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training.

Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy's nuclear power program are required to serve six years).

Employee Rights

Under USERRA, restoration rights are based on the duration of military service rather than the type of military duty performed (e.g., active duty for training or inactive duty), except for fitness-for-service examinations. The time limits for returning to work are as follows:

▪ Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible;

▪ 31 to 180 days: The employee must apply for re-employment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible;

▪ 181 days or more: The employee must apply for re-employment no later than 90 days after completion of military service;

▪ Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

USERRA guarantees pension plan benefits that accrued during military service, regardless of whether the plan is a defined benefit plan or a defined contribution plan. USERRA provides that service members activated for duty on or after December 10, 2004 may elect to extend their employer-sponsored health coverage for up to 24 months. Service members activated prior to 12/10/04 may elect to extend coverage for up to 18 months. Employers may require these individuals to pay up to 102% of total premiums for that elective coverage. In addition, USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or an intent to serve.

Penalties/Sanctions

A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for "willful" violations.

Relation to State, Local, and Other Federal Laws

USERRA does not preempt state laws providing greater or additional rights, but it does preempt state laws providing lesser rights or imposing additional eligibility criteria.