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To manage in compliance with the law, supervisors must first become aware of the major laws that govern the employer and employee relationship. This chapter is not an exhaustive coverage of these laws. The federal laws presented here are quite lengthy and complex. They are also amended regularly in most sessions of Congress. The intent of this chapter is to provide you, as a supervisor, with a general awareness and understanding of these laws so that when you encounter work-related circumstances that may be governed by one or more of these laws you will know what to do, whom to seek counsel from and when to take appropriate action.
Remember, when you don't know what you don't know you are in your most vulnerable state. The information in this chapter should at least cause you to stop and realize that you need more information or assistance in a wide variety of employer and employee circumstances. This awareness will take you from the first stage of learning to the second stage of learning. With practice and skills development, you can continue to move forward into the third and fourth learning stages in terms of employment laws and practices and managing in compliance with the law.
In our country, our legal system is comprised of three systems consisting of independent but interconnected governments: federal government, state governments and local (municipal or county) governments. This interrelationship among the three systems is referred to as federalism. Each system of government has three branches: one that makes laws (legislative branch), one that carries out these laws (executive branch), and one that interprets laws and resolves disputes that arise under them (judicial branch).
The Federal Government's legislative branch is Congress. The executive branch is the President and the various federal administrative agencies. The judicial branch consists of the United States Supreme Court, the United States Courts of Appeal, the United States District Courts, and other federal courts. Federal laws govern each of the United States and its protected territories.
In addition to these federal laws, each state has its own set of state laws with three branches. The legislative branch is the state legislature, the executive branch is the governor and the various state administrative agencies, and the judicial branch is comprised of the state courts.
Within each state, the various counties and cities or municipalities have their own specific laws governing each city with three branches. The legislative branch is the county commission or the city council; the executive branch is the County Commissioner or the city Mayor and the local administrative agencies; and the judicial branch is made up of the local county or municipal courts.
Federal laws are always the final authority. Individual states may enact specific laws that grant additional privileges or and additional restrictions than current federal laws but they may not reduce privileges or remove restrictions set forth in federal laws. Similarly, municipal laws work in the same relationship to state laws.
Consider federal laws as the overarching umbrella with state laws beneath them. Next, consider county and municipal laws even lower than the state laws.
See diagram below:
The Constitution of the United States is the fundamental law that creates the branches of government and identifies basic rights and obligations for all U.S. citizens. It governs all other types of federal laws. Congress can enact laws known as acts that contain statutes. Administrative agencies can create regulations that are specific laws for carrying out statutes.
New laws are also created in the form of federal court decisions, known as opinions or what may at times be referred to as case law. Federal district courts exist in 89 districts in 50 states, the District of Columbia and in Puerto Rico. The second level of federal courts includes United States Courts of Appeals that are located in 12 geographic Circuits within the United States and the highest court in the land is the United States Supreme Court. (Other types of specialty federal courts exist such as the U.S. Tax Court, US Claims Court, US Court of International Trade, and the US Court of Appeals for the Federal Circuit, but descriptions of each are beyond the scope of this text).
Now, you will briefly explore seven major federal laws that govern employer and employee relationships. Each of these laws was enacted to protect certain rights of employees and to govern the actions of certain employers in response to various forms or historical patterns of abuse, discrimination, harassment and negative treatment.
The FLSA was enacted by Congress in the early part of the twentieth century because legislators realized that individual employees were at the mercy of employers and that they were quite vulnerable in terms of possible exploitation by their employers who had superior economic power over them. The objective was to prohibit employers from taking unfair advantage of anyone who might be willing to work for substandard wages by setting a standard for fair pay for any work rendered by an employee for an employer. Similar laws were also enacted to protect children and women from harsh working conditions.
In 1935, the NLRA was enacted to provide employees with the right to take collective action against their employer or to form a union. This act made it illegal for an employer to discriminate against an employee for becoming a union member or for taking collective action with other employees to negotiate with the employer from a stronger economic position. It created the National Labor Relations Board as well, which is an administrative agency that administers and interprets the unfair labor practice and representation provisions of the NLRA.
This law prohibits discrimination based on national origin or citizenship status against employees or prospective employees with legal authorization to work in the United States. This law also prohibits employers from hiring workers that are not legally authorized to work in the United States and it requires employers to verify each individual employee's legal employment status and keep records of this documentation.
The E.E.O.C.'s mission is to "Eradicate employment discrimination at the workplace," (United States E.E.O.C., 2000b). The E.E.O.C. has statutory authority to enforce the principal federal statutes prohibiting employment discrimination including:
The E.E.O.C. has its headquarters in Washington, DC and field offices in 50 locations across the United States. The E.E.O.C. also contracts with approximately 90 FEPAs (Fair Employment Practices Agencies) to process more than 48,000 discrimination charges annually. Approximately 80,000 charges were filed annually in fiscal years 1997 and 1998 (United States E.E.O.C., 2001b).
This section of the Civil Rights act of 1964 prohibits employers with 15 or more employees from discriminating against employees on the basis of race, sex, color, religion, or national origin. All types of employment practices are included such as hiring, transferring, promoting, firing, benefits administration, training, competency appraisals, and disciplinary actions.
Pregnancy Discrimination Act Of 1978
President Carter signed Public Law #95-955 on October 31st 1978. The Pregnancy Discrimination Act became an amendment to Title VII of The Civil Rights Act of 1964, found in Volume 42 of the United States Code, § 2000k.
(k) The terms "because of sex'' or "on the basis of sex'' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employmentrelated purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, that nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
A charge must be filed with the E.E.O.C. within 180 days from the date of the alleged violation to protect the filing party's rights. The filing deadline is extended to 300 days if the filed charge is also covered by a state or local anti-discrimination law (United States E.E.O.C., 2001b).
The ADEA makes it illegal for an employer with 20 or more employees to discriminate against anyone because of his or her age, when they are 40 years old or older, in all types of employment practices. This includes hiring, transferring, promoting, firing, benefits administration, training, competency appraisals, disciplinary actions and all other forms of employment practices.
A charge must be filed with the E.E.O.C. within 180 days from the date of the alleged violation to protect the filing party's rights. This filing deadline is extended to 300 days if the charge is also covered by a state anti-discrimination law (United States E.E.O.C., 2001b).
This act was created to make it illegal for employers to pay men and women different rates of pay when performing the same work with the same position description requiring the same skills, experience, and ability. It made it illegal to discriminate using gender or sex as the factor, in determining wages. It did not restrict an employer's ability to pay differently based on seniority, quantity or quality of production, merit or some other factor than sex.
Title I & V of The Americans with Disabilities Act makes it illegal for employers with 15 or more employees to discriminate against a person in the private sector and state and local governments based on either a mental or a physical disability. All areas of employment are covered and it protects all qualified individuals with a disability who can perform the essential functions of a job with or without a reasonable accommodation. Persons with a record of such impairment or who may be regarded as having such impairment are also covered individuals.
A disabled individual is a person who has a physical or mental impairment substantially limiting one or more major life activities, has a record of such impairment, or is regarded as having such impairment. A qualified employee or applicant with a disability is an individual who can perform the essential functions of the job in question with or without reasonable accommodation.
Reasonable accommodations may include making existing facilities used by employees readily accessible to and usable by persons with disabilities; restructuring a job; work schedule modifications; reassignment to a different position in which they would be qualified; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified interpreters or readers.
Employers are also required to provide reasonable accommodation for qualified applicants or employees unless such accommodation would create an undue hardship for the employer. An undue hardship is an action requiring a significant difficulty or expense when considered in context with the employer's size, financial resources, and the nature and structure of the operation.
A qualifying disability requires a medically recognized physical or mental impairment that substantially limits one or more major life activities. Such life activities include activities that an average person could perform with little or no difficulties like walking, breathing, seeing, hearing, speaking, learning, and working.
Physical impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss. Covered impairments include sight, speech, and hearing deficiencies; orthopedic and movement impairments including amputation, diseases such as cerebral palsy, epilepsy, multiple sclerosis, muscular dystrophy, diabetes, cancer, and heart defects.
Contagious diseases, such as tuberculosis or HIV infection are also recognized as physical impairments. Employers may only discriminate against employees with such diseases if they can clearly demonstrate that an infected individual constitutes a significant risk to the health or safety of others. One example might include an employee in a food handling capacity who tests positive for Hepatitis. Alcoholism and drug addictions are also defined disabilities.
Mental impairment means any mental or psychological disorder. It includes dyslexia, retardation, emotional illnesses, and learning disabilities
The ADA also specifically excludes some medically recognized conditions (recognized at the time it was enacted): homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders, sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from illegal drug use.
A qualifying disability must substantially limit a major life activity that includes self-care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and having the ability to secure and retain employment. It must be permanent in nature, so a temporary injury or illness that can be healed or cured is not a qualifying disability because it is short-lived.
A charge must be filed with the E.E.O.C. within 180 days from the date of the alleged violation to protect the filing party's rights. The filing deadline is extended to 300 days if the charge is also covered by a state or local anti-discrimination law (United States E.E.O.C., 2001b).
This act made major changes in the federal laws against employment discrimination that are enforced by the E.E.O.C. Additional protections are provided including the provision of attorney's fees and the possibility of jury trials, (United States E.E.O.C., 2001b).
A charge must be filed with the E.E.O.C. within 180 days from the date of the alleged violation to protect the filing party's rights. The filing deadline is extended to 300 days if the filed charge is also covered by a state or local anti-discrimination law (United States E.E.O.C., 2001b).
Sections 501 and 505 Of The Rehabilitation Act Of 1973
This act prohibits discrimination against qualified individuals with disabilities who work in the federal government. Federal employees or applicants for employment should also refer to the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing that may be found online at: http://www.eeoc.gov/facts/fs-fed.html
Many individual states add additional protected classes to their nondiscrimination laws. Some of these classes may include but are not limited to: marital status, parental status, sexual orientation, political affiliation, nepotism, family responsibilities and matriculation.
Nepotism or family relationships are protected to preclude employers from discriminating against applicants who are family members of current employees. Employers are allowed to restrict family members from having direct reporting relationships to avoid potential conflicts of interest.
Matriculation is defined in Black's Law Dictionary as "to enroll; to enter in a register; specifically, to enter or admit to membership in a body or society, particularly in a college, university, by enrolling the name in a register. To go through the process of admission to membership, as by examination and enrollment, in a society or college." This protection is granted to preclude employers from granting preferential treatment in employment practices to individuals with membership in specific societies or individuals who have graduated from specific colleges or universities.
Many municipalities (counties and cities) add additional protected classes to their existing nondiscrimination laws too. The same category examples listed under State laws also apply here to municipalities.
Many companies with employees in multiple jurisdictions (states and municipalities) have implemented "Zero Tolerance" policies against any form of discrimination or harassment in the workplace. (See "Zero Tolerance Policy" discussion in Chapter Two). This practice is intended to be both proactive and preventative in nature. The general intent is to ensure that all employees in multiple work locations are protected under the various federal, state and municipal laws governing the employer/employee relationship.
This practice also makes it unnecessary for the employer to specifically list all the various protected classes under the applicable laws because all employees are offered protection from discrimination and harassment whether they have specific protected class status under the law or not.
Effective company policy should be designed around a business case. The primary business reason for a company policy should be to improve competency, increase profit and enhance productivity. Behaviors that diminish these objectives should be eliminated and behaviors that enhance these objectives should be encouraged.
If an employee alleges discrimination or harassment under a company policy violation but the employee does not have protected class status under the law, the remedies may be restricted to those provided by the employer. The employee may not have a legal recourse against the employer but the employee should seek legal advice from a government agency such as the E.E.O.C. or a state EEO agency or from an attorney to ensure that employee’s legal rights are protected.
Describe the business reasons for your company or agency policies.
How do these various laws affect your day-to-day responsibilities as a Clinical Supervisor?