Other Employment Law Issues

Affirmative Action Executive Order 11246–1965. Applies to federal agencies and federal contractors. Requires employers to take positive steps to ensure equal opportunity employment of applicants. Requires equal opportunity treatment of employees. Affirmative action was created when President Johnson signed Executive Order 11246 in 1965. Affirmative action applies to federal agencies and federal contractors and prohibits discrimination in employment because of race, creed, color or national origin. In 1968, the word “creed” was changed to religion and sex discrimination was added to the other prohibited areas. The law requires employers to take positive steps to ensure equal opportunity employment of applicants and equal opportunity treatment of employees during employment. ©SHRM 2008

Affirmative Action AAP – Workers must be employed in proportion to their representation in the organization’s relevant labor market. An AAP may be in place in an attempt to correct past discrimination. An affirmative action program (AAP) is a process developed by organizations to demonstrate that workers are employed in proportion to their representation in the organization’s relevant labor market. Affirmative action programs may be required by the EEOC of organizations that are found to have a history of discrimination. The AAP is put in place in an attempt to correct the imbalance created by past discrimination. Other organizations voluntarily implement an AAP, establishing goals for the hiring of minorities and women. ©SHRM 2008

COBRA – 1985 Consolidated Omnibus Budget Reconciliation Act (COBRA). Applies to organizations with 20 or more employees. Provides option of continued health insurance coverage to terminated employees. Termination must be a qualifying event. There is no federal law that requires employers to provide health insurance to employees. However, when an organization has 20 or more employees and does provide health insurance to those employees, COBRA requires that an employee who loses health insurance coverage as a result of a qualifying event be given the opportunity to continue their employer’s insurance coverage for themselves and their dependents. Coverage extends from 18 to 36 months, depending on the nature of the qualifying event. The employee must elect COBRA benefits within the required time period and must pay the full cost of insurance plus a possible administrative fee up to 2 percent. An exception applies in the case of an employee who is terminated due to gross misconduct. ©SHRM 2008

WARN – 1988 Worker Adjustment and Retraining Notification Act (WARN). Requires 60 days notice in the event of a mass layoff or plant closing. Notice to public agencies and unions. Applies to employers with 100 or more employees. The WARN Act gives employees and communities some “cushion” in the event of a mass layoff or a plant closing by requiring employers to give a minimum of 60 days notice before the event occurs. The intent is to give displaced workers time to search for new jobs and hopefully reduce the negative effects of the job loss. In addition to notifying the affected workers, if there is a union involved, the union must be notified as well as state agencies for dislocated workers and the chief-elected official of the local government where the closing or layoff is to occur. The WARN Act applies to employers who have 100 or more full-time employees or a combination of full-time and part-time employees that would be the equivalent. ©SHRM 2008

Immigration Reform and Control Act (IRCA) of 1986 Two purposes of IRCA: Curtail the flow of illegal immigrants coming into the United States seeking employment. Prohibits discrimination against job applicants on the basis of national origin or citizenship. The Immigration Reform and Control Act, passed by Congress in 1986, was intended to curtail the flow of illegal immigrants coming into the U.S. seeking employment. The second purpose of IRCA is to prohibit discrimination against job applicants on the basis of national origin or citizenship. ©SHRM 2008

Immigration Reform and Control Act (IRCA) of 1986 Requires new employees to verify proof of identity and proof of right to work in the U.S. Requires I-9 form within three days of hire. Provides penalties for employers hiring illegal workers. By requiring all new employees to verify proof of identity and proof of right to work in the United States, it was assumed that undocumented workers would have difficulty with verification and therefore could not obtain employment. The logic was that if they could not get jobs, illegal immigrants would stop coming. The law requires that within three days of hiring, the new employee must complete an I-9 form and provide their employer with documentation that verifies identity and right to work in the U.S. The law includes employer penalties for hiring illegal aliens, including civil and criminal penalties for employers who knowingly hire illegal workers. ©SHRM 2008

USERRA – 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. Provides employment protection to reservists and National Guard members called into active duty. Applies to virtually all employers regardless of size. USERRA provides employment protection to reservists and National Guard members. Under USERRA, military personnel are entitled to return to their civilian employment after military service. USERRA applies to virtually all employers, public or private, regardless of size. ©SHRM 2008

USERRA – 1994 Escalator Principle: Reemployment in the same job position that would have been reasonably attained if not for absence due to military service. Protection from being penalized as a result of time spent in active duty. An employee returning from military duty is entitled to reemployment in the same job position that he or she would have reasonably attained if not for the absence of time in military service. This “escalator principle,” is intended to protect service personnel from being penalized by losing pay or a promotion as a result of the time spent in active military duty. ©SHRM 2008