Do Federal Employment Laws Affect My Business?

One of the most important responsibilities of a business owner is to hire and retain effective employees. Today the employee/employer relationship has been complicated by the large number of complicated laws and regulations governing this area. The United States Department of Labor, for example, enforces more than 180 employment laws and regulations. The following are brief summaries on some of the biggest employment laws that may apply to your business:

Fair Labor Standards Act (FLSA): FLSA contains the federal minimum wage and overtime standards. According to the act, the minimum wage is $7.25 per hour. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage. For example, the minimum wage in Arizona is $7.35 (as of November 15, 2011), so a non-exempt employee in Arizona would be entitled to the Arizona rate. Within the act, many types of occupations or workers are specified as exempt from the standards of the FLSA and do not receive minimum wage or overtime benefits.

Title VII of the Civil Rights Act of 1964 (Title VII): Title VII is very broad and is the basis of much of the employment law that deals with discrimination. It prohibits employment discrimination based on race, color, religion, sex, or national origin. Discrimination based on sex includes sexual harassment and discrimination based on pregnancy, childbirth or related medical conditions. This act applies to employers that have had more than 15 employees in the previous year.

Family and Medical Leave Act (FMLA): This act requires employers of 50 or more employees to give up to 12 weeks of unpaid job-protected leave for certain medical and family reasons. Reasons for protected leave may include the birth or adoption of a child, the need to care for a seriously ill family member, or inability to work because of a serious health condition.

Age Discrimination in Employment Act of 1967 (ADEA): The purpose of the ADEA is to protect workers who are age 40 or older. This act applies to private employers with 20 or more employees. Generally, the ADEA prohibits an employer from firing, refusing to hire, or discriminating in any way against an employee age 40 or older. Although the act does not prohibit asking a job applicant his age or date of birth, requests for age information may be closely scrutinized to ensure that the inquiry was made for a lawful purpose.

The Americans with Disabilities Act of 1990 (ADA): The ADA prohibits discrimination in hiring, firing, promotions, or other employment decisions against qualified individuals with disabilities. An employer cannot ask whether an applicant is disabled or ask about the severity of a disability. However, an employer can usually ask whether an applicant can perform job-related tasks, and employers can require that an individual demonstrate how job duties will be accomplished. Employers are required to provide reasonable accommodations to employees with qualified disabilities. Employers with 15 or more employees are covered by the ADA.

Equal Pay Act of 1963 (EPA): The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. Determination of whether the jobs are substantially equal depends on the job duties, not the job title. This act applies to all forms of employee compensation. Virtually all employers are covered under the EPA.

This is only a partial list of federal employment laws. Each of the states has additional laws and regulations that govern the employee/employer relationship. Failure to follow any of the state or federal employment laws and regulations may result in costly litigation. Much of the litigation regarding the employer/employee relationship can be prevented if certain procedures are followed and put in place.

Attorneys from Gunderson, Denton & Peterson, PC, counsel clients to establish those procedures and protect your business in the event of a claim that one of these laws has been violated.

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Will Bankruptcy Affect My Immigration Status, Green Card, or Citizenship?

In the USA, Federal Bankruptcy Law prevents the government from discriminating against anyone for filing a bankruptcy petition. Section 525(a) of the Bankruptcy Code states that a government unit, "May not deny, revoke, suspend, or refuse to renew a license, permit charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor (in bankruptcy)..."

It is not a crime and is not considered immoral or bad to file for bankruptcy protection. Filing bankruptcy will not affect your immigration status, your green card, or your prospects for becoming a citizen. It is also illegal to discriminate against you in your employment for having filed a bankruptcy petition. Section of 525(b) prohibits discrimination even by private employers.

Section 525(c) prohibits the government or private student loan lenders from discriminating against a bankruptcy debtor based on a bankruptcy case.

In some cases bankruptcy can even be looked upon favorably, because you have rid yourself of burdensome debt. For instance, an adoption agency might be more willing to allow an adoption by parents that have obtained a fresh start on their finances through bankruptcy than a couple that is overburdened by debt.

Chapter 7 bankruptcy is designed to allow you to discharge your debts without paying anything on them. There are certain types of debts that cannot be discharged in most cases, such as student loans, fraudulently incurred debts and some kinds of tax debts. You can lose property in Chapter 7 bankruptcy. The court liquidates non-exempt assets and distributes the funds to creditors. Fortunately, there are exemption laws that allow people to keep certain types and amounts in bankruptcy. Because of exemption laws, most people lose little or nothing in Chapter 7 bankruptcy.

Chapter 13 bankruptcy is designed to allow debtors to consolidate and repay a portion of their debt through the bankruptcy court's trustee and under court protection over a period of three to five years. The debt does not have to be paid in full. The debtor is only required to pay what is reasonably affordable each month. At the end of the payment term, the remaining amount of the debt is discharged and no longer owed. Assets are not seized in Chapter 13. Many people who have higher incomes file Chapter 13 because they are not eligible for Chapter 7.

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How Will Employment Tribunal Changes Affect You?

Chancellor George Osborne has confirmed that the Government intends to implement some major changes to the process in which an employee launches claims against his employer through an employment tribunal. By doing so, Mr Osborne argues that British businesses will be saved an annual bill of around £6 million by lessening the number of cases that can add up to around 2000 per year. However, employee groups are seeing this as yet another nail in the coffin for employees' rights. How will these changes affect the ordinary, working man or woman?

Tribunal Claims.

In the first of the changes, the government is doubling the qualifying period in which an employee can be employed before they can launch a tribunal claim. Currently, an employee need only have been employed for one year before they are able to do so. But from April 1st 2012, this will become two years. Business owners welcome this as it makes it 'less risky' to hire new people, given that they will find it easier to make them redundant if they are found to be under-performing. However, employee groups believe that this system will be open to abuse by unscrupulous employers and a significant number of unfair dismissal cases will now go unreported. Dr John Philpott, Chief Economic Advisor at the Chartered Institute of Personnel and Development, warns that: "While less job protection encourages increased hiring during economic recoveries, it also results in increased firing during downturns."

Tribunal Fees.

The second change is the introduction of a fee to take an employer to trial. Although no decision has as yet been reached as to exactly how much an employee will have to pay to undertake a tribunal hearing, it has been suggested that it will cost £250 to file a claim, with a further £1000 incurred when the matter is listed for hearing. Claims in excess of £30,000 may well incur higher fees. While businesses are likely to applaud this system as it could significantly reduce the number of unfair dismissal claims seen each year. Sceptics argue that claims of this sort counted only for around 15% of employment tribunal cases seen between 2010 and 2011, and inclusion of the fee is a serious erosion of employees' rights.

However, for employers taken to tribunal, the changes will not make much difference, so it is still in their best interests to avoid tribunal action at all costs. The Government has said that it wants to increase the possibilities for non-legal resolution between employees and employers, and that this particular change is aimed at doing just that.

July 2004 saw employers raising their hands in horror as the Government introduced additional compensatory awards for hard-to-define matters such as stress, injury to feelings and personal humiliation. It seems that the pendulum is now swinging firmly in their favour, although the onus seems to be more on positive resolution outside the tribunal, rather than complete abolition of employees' rights. While it will no doubt be harder for employees with genuine grievances to launch cases, substantial sums will be saved from no longer having to deal with cases that would otherwise be 'thrown out'.

The Work Ethic are Employment Lawyers Edinburgh.

Looking for an Employment Law Solicitor?

Nick Jervis is a consultant to the Work Ethic.

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