The Law And Work: What's The Verdict?

Employment law is a section of United States laws that govern the relationship between employees and employers. It covers various aspects of employment, including hiring, firing, wages, benefits, work hours, and workplace safety. Federal laws mandate that employers treat employees fairly and protect their health. These laws are administered and enforced by the United States Department of Labor (DOL), which oversees more than 180 federal laws and their implementing regulations. These laws cover a wide range of workplace activities, ensuring that employees' rights are protected and that employers adhere to legal requirements.

Minimum wage, overtime pay and job misclassification

Minimum Wage, Overtime Pay, and Job Misclassification

The Fair Labor Standards Act (FLSA) prescribes standards for minimum wage and overtime pay, which affect most private and public employment. The act is administered by the Wage and Hour Division of the U.S. Department of Labor, which enforces these rights. The FLSA requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half times the regular rate of pay. For non-agricultural operations, it restricts the hours that children under the age of 16 can work and forbids the employment of children under 18 in certain jobs deemed too dangerous. The same standards apply to remote workers.

Job misclassification occurs when an employer treats a worker as an independent contractor instead of an employee. This affects pay, benefits, and protection. Misclassifying employees as independent contractors can be problematic as misclassified employees may not receive the minimum wage and overtime pay to which they are entitled under the FLSA or other benefits and protections they are entitled to under the law.

The general rule used by the Internal Revenue Service (IRS) is that an individual is an independent contractor if the entity that pays them has the right to control only the result of the work, rather than the details of what is to be done or the method by which it is done. However, before classifying a worker as an independent contractor or an employee, an employer will have to analyze multiple factors, which can be grouped into three categories: behavioral control, financial control, and type of relationship.

Behavioral control includes factors that show whether a business has the right to direct a worker’s performance of job duties, such as when and where to do work, what tools or equipment to use, and what workers to hire or assist. Financial control consists of factors that show whether a business is entitled to control the business aspects of a worker’s job, such as the reimbursement of business expenses, the worker’s investment in tools or equipment, and the worker’s ability to seek out other business opportunities. Matters relating to the type of relationship include written contracts describing the intended relationship, whether benefits are given to the worker, the permanency of the relationship, and the extent to which the worker’s services are integral to the company’s business.

If you believe you have been misclassified, you can take a number of steps, including anonymously reporting your company in some states, consulting an employment lawyer, or contacting the Wage and Hour Division of the U.S. Department of Labor to report the violation.

Discrimination, harassment and retaliation

Discrimination, harassment, and retaliation are unlawful under federal and state laws, which protect individuals from unfair and unwelcome treatment at work.

Discrimination

Differential treatment of an individual or group of people based on their race, colour, national origin, religion, sex (including pregnancy and gender identity), agesection 1marital and parental status, disability, sexual orientation, or genetic information is considered discrimination. The Equal Employment Opportunity Commission (EEOC) enforces discrimination laws, although their coverage does not extend to all employers, and is often dependent on the number of employees.

Harassment

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. It is defined as unwelcome conduct based on a person's race, colour, religion, sex, national origin, older age, disability, or genetic information. This includes offensive jokes, physical assaults, and threats. Harassment becomes unlawful when enduring the conduct is required for continued employment, or when it creates an intimidating, hostile, or abusive work environment.

Retaliation

Retaliation occurs when an employer treats an individual unfavourably because they engaged in a protected activity. Protected activities include filing or participating in an EEOC charge or investigation, discussing discrimination or harassment with a supervisor, refusing to follow discriminatory orders, or resisting sexual advances or intervening to protect others. Retaliation methods can include intimidation or threats.

Workplace safety and health

The OSH Act mandates that employers provide a workplace free from recognised and serious hazards. OSHA enforces this law through workplace inspections and investigations, and also offers compliance assistance and other cooperative programs. Employers are responsible for ensuring a safe work environment, even for remote workers.

Additionally, the Whistleblower Protection program ensures employees can report injuries, safety concerns, or other protected activities without fear of retaliation from their employers.

The Fair Labor Standards Act (FLSA) also contains rules regarding the employment of young workers under 18, protecting their health and well-being. It includes minimum age restrictions, limitations on working hours, and the types of jobs they may perform.

The Office of Workers' Compensation Programs administers four major disability compensation programs, providing benefits to workers or their dependents who experience work-related injuries or illnesses.

To promote a safe and healthy work environment, employers should implement safety and health programs with the main goal of preventing workplace injuries, illnesses, and deaths. This proactive approach brings benefits such as improved compliance, reduced costs, enhanced social responsibility, and increased productivity.

Whistleblower protections

Whistleblower laws are designed to protect employees from retaliation by their employers when they raise concerns about potentially illegal or unsafe activities in the workplace. Whistleblowers are employees who report workplace conditions that they believe to be unsafe or illegal. In the United States, the Department of Labor enforces whistleblower protection laws through the Occupational Safety and Health Administration (OSHA).

OSHA's Whistleblower Protection Program ensures that employees are protected from retaliation for exercising their rights. Retaliation can include firing, demoting, denying overtime or promotion, or reducing pay or hours. It also includes preventing someone from getting another job, denying benefits, or making threats against a worker.

Under the Occupational Safety and Health Act (OSH Act), employees can file complaints with OSHA if they believe they have experienced discrimination or retaliation for exercising any right afforded by the OSH Act. This includes complaining to the employer, union, OSHA, or any other government agency about workplace safety or health hazards, or participating in OSHA-related activities.

The Department of Labor enforces the whistleblower protection provisions of twenty-two statutes, including:

• The Surface Transportation Assistance Act (STAA)
• The Asbestos Hazard Emergency Response Act (AHERA)
• The International Safe Container Act (ISCA)
• The Energy Reorganization Act (ERA)
• The Clean Air Act (CAA)
• The Sarbanes-Oxley Act (SOX)
• The Pipeline Safety Improvement Act (PSIA)
• The Federal Rail Safety Act (FRSA)
• The National Transit Systems Security Act (NTSSA)
• The Moving Ahead for Progress in the 21st Century Act (MAP-21)
• The Consumer Product Safety Improvement Act (CPSIA)
• The FDA Food Safety Modernization Act (FSMA)
• The Consumer Financial Protection Act (CFPA)
• The Affordable Care Act (ACA)
• The Seaman's Protection Act (SPA)

Employees who believe they have been retaliated against for exercising their rights under any of these statutes can file a complaint with OSHA. The time limit for filing a complaint varies depending on the specific statute involved, ranging from 30 to 180 days after the alleged violation.

In addition to OSHA, other agencies within the Department of Labor, such as the Wage and Hour Division and the Mine Safety and Health Administration, enforce anti-retaliation provisions of numerous statutes and Executive Orders.

Family and medical leave

The Family and Medical Leave Act (FMLA) is a law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. This law applies to all public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. To be eligible for FMLA leave, an employee must have worked for their employer for at least 12 months, have worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

FMLA leave can be taken for the following reasons:

• The birth and care of a newborn child.
• The placement of a child for adoption or foster care.
• To care for an immediate family member (spouse, child, or parent) with a serious health condition.
• To take medical leave when the employee is unable to work due to a serious health condition.
• For qualifying exigencies arising from a spouse, child, or parent's covered active duty or call to covered active duty status in the National Guard, Reserves, or Regular Armed Forces.

It's important to note that FMLA leave is unpaid, but employees can choose to substitute accrued paid leave for it if they comply with their employer's applicable paid leave policy. Additionally, FMLA leave is job-protected, meaning that employees have the right to return to their same or an equivalent job at the end of their leave.

FMLA also provides certain military family leave entitlements, allowing eligible employees to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness.

Frequently asked questions