Employment Law for Growing Government Contractors

Image
March 5, 2019

Congratulations, your business is growing and adding new employees every day!  However, as you grow, it seems your business becomes more complex, especially when it comes to meeting employer-employee relationship requirements. These rules and regulations are not terribly complicated (at least most of them are not), but they can be pitfalls for the unwary.

In this session, we take a brief walk through various employment laws that apply to advertising positions: interviewing and hiring, compensating, evaluating, promoting, firing, and all other aspects of the employer-employee relationship. 
“In this world you’re either growing or you’re dying.” -Lou Holtz

Congratulations, you’re on the right track.  But if you’re not moving forward, you can still get run over.

Part One: The Numbers and the Laws That Go With Them

The Numbers

As your business grows, so does the number of laws you must follow.
  • 1+ Employee
  • 15+ Employees
  • 20+ Employees
  • 50+ Employees
  • 100+ Employees
The Highlights
Laws That Apply With 1+ Employee
  • Fair Labor Standards Act Minimum wage and overtime
  • National Labor Relations Act Unfair labor practices
  • Occupational Safety & Health Act Health and safety
  • Drug-Free Workplace Act Drug test policies
  • I-9 Requirements Employee verification
  • Civil Rights Act of 1983 Anti-discrimination in contracting
  • USERRA Anti-discrimination for veteran and military status
Common Problem Areas
Fair Labor Standards Act
  • Employee vs. Independent Contractor
  • Exempt vs. Non-Exempt
  • “Salary Basis” Test
  • “Comp Time” and “Flex Time” (“Comp Time” does not exist for private employers but can provide to exempt employees)
National Labor Relations Act
  • “Protected concerted activity” (talking about compensation; social media)
Occupational Safety & Health Act
  • Reporting / Investigation
  • Anti-Retaliation / Whistleblowers
Drug Free Workplace Act
  • Written policy requirement

The Highlights
Laws That Apply With 15+ Employees
  • Title IV
  • Americans with Disabilities Act
  • Pregnancy Discrimination Act
  • Genetic Information Non-Discrimination Act
  • Fair Credit Reporting Act
  • Fair and Accurate Credit and Transactions Act
  • Age Discrimination in Employment Act (20+)
  • COBRA (20+)
Calculating Your Employees
  • Need your (1) calendar, (2) payroll records, and (3) calculator.
  • The “Payroll Method”: Date of Hire and Date of Termination – Not if actually paid for work that week • Number of employees on each working day during the year • “Employee” = some employment relationship (includes part-time, temporary, etc.) Even if they don’t work that week, they count • “20 or more workweeks in the current or preceding calendar year
Title VII: What You Need to Know
Prohibits discrimination/harassment on the basis of protected categories
  • Race
  • Religion
  • Ethnicity
  • Sex
  • National Origin
  • Disability (under the ADA)
  • Sexual Orientation? Eleventh Circuit: Evans v. Georgia Regional Hospital, 850 F.3d 1238 (2017) • But, see EO 11246
Types of Violations
  • Disparate treatment (hiring, firing, promotion, pay, benefits, etc.)
  • Hostile work environment
  • Retaliation
  • Not general “discrimination” or “harassment” but based on specific protected categories
Sexual Orientation / Executive Orders
Executive Order 11246
  • Federal contracting agencies must include sexual orientation and gender identity discrimination as prohibited bases of discrimination in the Equal Opportunity Clause in federal contracts.
  • Applies even with less than 15 employees
  • See also EO 13672, 11375, 11478, 13672, and OFCCP.
ADA: What You Need to Know
  • Qualified Individuals with Disabilities
  • Unlawful Discrimination
  • Essential Job Functions
  • Reasonable Accommodations
  • Undue Hardship
  • Relationship with Workers’ Compensation Laws, FMLA, Sick Leave/PTO
  • Retaliation
Seek Guidance Early!

FCRA and FACTA: What You Need to Know
Apply to background checks and workplace investigations.

Fair Credit Reporting Act (1970) - Requires written notice and consent before an employer may obtain a consumer report for employment purposes.

Fair and Accurate Credit Transactions Act (2003) - Relaxes notice requirements for certain types of “investigations” into compliance with federal, state, or local laws and regulations.

Requires disclosure of the “nature and substance” of the report, if adverse action is taken.

ADEA: What You Need to Know
  • Applies if 20+ employees
  • Prohibits age discrimination in employment
  • 40 and over
  • Prohibits mandatory retirement ages
  • May be required to give certain information in layoffs
50+ Employees
  • Family and Medical Leave Act
  • Affordable Care Act
100+ Employees
  • Worker Adjustment & Retraining Notification Act (WARN) (Important for government contractors during government shutdowns)
State Laws
  • May vary
  • Alabama: Workers’ Compensation & Anti-Retaliation (Ala. Code 25-5-11)
  • Tennessee: Tennessee Human Rights Act (8+ employees)
  •  States with more laws and regulations: California, New York, Massachusetts
Part Two: “Employment Law Myths” or “Lies That CEOs Tell Each Other”

Myths


Myth # 1 – “You can prohibit employees from discussing their pay with each other."

Myth # 2 – “You should not tell employees the reason for their ‘at will’ termination. "

Myth # 3 – “You should always fight unemployment compensation claims. "

Myth # 4 – “Non-competes really aren’t enforceable” or “Non-competes are always enforceable.”

Myth # 5 – “You should keep all employee records (pay, medical, and personnel) together.”

Myth # 6 – “You only have to keep employee pay records for 1 year (or 2 years, etc.).”

Part Three: Other Ways Your Business May Be Breaking Employment Laws

Common Mistakes
  • The “flexible lunch break”
  • Letting employees decide which hours and how many they want to work each day.
  • Failing to provide a final paycheck to an employee who has not returned.
  • Giving employees loans and deducting repayments from their checks.
  • Having a “use it or lose it” vacation policy but failing to pay back money-owed on termination.
  • Asking “bad” questions during interviews.
What to Do:
  • Employment at Will • Handbook • Offer Letters • Employment Agreement
  • Anti-Discrimination and Harassment Policy
  • Anti-Retaliation Policy
  • Social Media Policy
  • Prompt Remedial Action
  • Know the size of your workforce (update yourself from time- to time)
  • Review/update policies, handbooks, etc. 9. Review/update employment agreements, NDAs, non-competes
  • Train, and be consistent
  • Due diligence when expanding to new states with different laws
Other Considerations
  • HR Professional?
  • HASBAT? NCMA?
  • Handbooks?
  • FLSA Exemption Audits?
Thanks!

Contact us:
Richard J.R. Raleigh, J.R.
Christopher L. Lockwood

WILMER & LEE, P.A.
100 Washington Street, Suite 100
Huntsville, AL 35801
(256) 533-0202
rraleigh@wilmerlee.com
clockwood@wilmerlee.com

Download the Slides!

PDF