1. ©2009 Alston Hunt Floyd & Ing Basics on Employment Law Anna Elento-Sneed Alston Hunt Floyd & Ing

2. ©2009 Alston Hunt Floyd & Ing Federal & State Laws Governing Employers  Labor law  Equal employment opportunity  Wage & hour  Government contracting  Employee benefits  Safety & health  Business transaction  Workplace privacy  Proprietary rights  Wrongful termination  Tort claims

3. ©2009 Alston Hunt Floyd & Ing Staffing Options  Available options Employees Independent contractors Temporary or leased employees Volunteers  Differences between options Degree you can control the individual Obligation to provide wages and benefits Responsibility for their injuries Responsibility for their conduct

4. ©2009 Alston Hunt Floyd & Ing Staffing Options EmployeeICTempVolunteer ControlEmployer Controls IC Controls Limited Control Wages Benefits Employer Provides NoneAgency Provides None Their Injuries Workers Comp LawsuitWC or Lawsuit Injury to 3 rd p. EmployerIC or Contracting Company Temp or Contracting Company Volunteer or Company

5. ©2009 Alston Hunt Floyd & Ing Basics of Compensation Determine Which Law Applies  Federal law – employers engaged in commerce or production of goods with annual gross volume of $500,000 or more  State law – all employers  Exception: Employees with guaranteed salary of at least $2,000 or more per month  If both apply, you follow the law more favorable to the employee

6. ©2009 Alston Hunt Floyd & Ing Basics of Compensation Properly Classify Employees  Exempt Employees  Paid guaranteed salary ($2,000 or more per month)  Fall into specific categories: Executive, Administrator, Supervisor (Hawaii only), Professional, Computer Techs (federal only), Outside Sales, Outside Collector (Hawaii only)  Nonexempt Employees  Paid at least minimum wage ($7.25/hour)  Paid overtime after 40 hours per week  Must keep time records

7. ©2009 Alston Hunt Floyd & Ing Basics of Compensation Pay Correctly  Must have two payroll periods per month  Must pay “current”  Must pay within 7 days after payroll closes  Deductions limited to those required by law, court order, or permitted by written authorization by employee  Cannot require authorization for certain situation  Payment upon separation  Must pay on date of termination  May pay on regular pay day if employee resigns without giving one payroll period notice

8. ©2009 Alston Hunt Floyd & Ing Mandatory Benefits Unemployment Insurance  Provided to all employees  Paid by employer through quarterly contributions (% of payroll)  Contributions paid to state  Unused contributions are not reimbursed  Provides benefits to employees who are terminated or resign for good cause  Employer may contest award of benefits  Presumption is to award benefits

9. ©2009 Alston Hunt Floyd & Ing Mandatory Benefits Workers Compensation  Paid by employer through purchase of private insurance  Provides partial wage replacement, reimbursement for medical expenses, and payment for permanent disability  Employer may contest award of benefits  Presumption is to award coverage  Insurance carrier/employer has burden to prove otherwise

10. ©2009 Alston Hunt Floyd & Ing Mandatory Benefits Temporary Disability Insurance (TDI)  Provided to all employees who have been employed for 14 or more weeks in the State & who work 20 or more hours/week  Coverage provided through insurance  Employer pays majority  Max employee contribution = 0.5% of employee’s weekly wage  Provides wage replacement for disabled employees beginning on 8 th day up to max 26 weeks

11. ©2009 Alston Hunt Floyd & Ing Mandatory Benefits Prepaid Health Care  Provided to all employees who work 20 or more hours/week for 4 or more consecutive weeks  Employee may voluntarily waive if he/she is covered by another plan  Coverage provided through insurance  Insurance must meet state requirements  Employee contributions limited  If employee disabled, coverage continues for 3 months following disability

12. ©2009 Alston Hunt Floyd & Ing Mandatory Benefits Leaves of Absence  Types of Leave  Pregnancy  Family Leave (federal and state)  Jury  Military  Voting  Types of leave required depends upon size of employer and particular situation involved

13. ©2009 Alston Hunt Floyd & Ing Mandatory Leaves PregnancyFMLAHFLL CoverageAll50+100+ EventsDisability due to pregnancy or childbirth Pregnancy, birth, adoption, serious illness of self or family Pregnancy, birth, adoption, serious illness of family LengthPer doctor12 weeks4 weeks WagesUnpaid Unpaid* BenefitsContinues ReinstateYes

14. ©2009 Alston Hunt Floyd & Ing Hiring, Managing &Terminating Employees  These are critical employment decisions  Need to make sure that these decisions are based on legitimate, non-discriminatory business reasons  Key is to document your decision- making process

15. ©2009 Alston Hunt Floyd & Ing Hiring, Managing &Terminating Employees Hiring  Use job descriptions and employment applications  Be careful if you use testing  Plan out your interviews  Reference check before you hire  Be careful when using offer letters  Keep all paperwork

16. ©2009 Alston Hunt Floyd & Ing Hiring, Managing & Terminating Employees Managing  Adopt policies & procedures  Establishes do’s and don’ts  Sets performance standards  Consistent, uniform enforcement is important  Adopt communication systems  Handbooks, memos, newsletters, bulletin boards  Training  Meetings  Adopt grievance procedures  Use separate procedure for discrimination, harassment and retaliation complaints

17. ©2009 Alston Hunt Floyd & Ing Hiring, Managing & Terminating Employees Terminating  Notice  Reasonable rule or order  Investigation  Fair investigation  Proof gathered during investigation  Equal treatment  Penalty

18. ©2009 Alston Hunt Floyd & Ing ADA Compliance Understand ADA Process  It’s a specific process  Different from workers compensation  Different from TDI  Requires employer to work with doctors  Impairment: Is employee impaired?  Disabling: Is impairment disabling?  Essential function: Does disability affect individual’s ability to perform essential function?  Accommodation: Can disability be reasonably accommodated?

19. ©2009 Alston Hunt Floyd & Ing ADA Compliance Key Documentation Job description Medical opinion Interactive accommodation notes Use Regulations to Establish: Job qualifications Reasonableness of accommodations Direct threat

20. ©2009 Alston Hunt Floyd & Ing Discrimination, Harassment & Retaliation The Problem  Most common form of employment lawsuits  Governed by federal and state laws  Lawsuits can be expensive and very disruptive  Supervisors and managers can be held individually liable, in addition to the company

21. ©2009 Alston Hunt Floyd & Ing Discrimination, Harassment & Retaliation Keys to Minimizing Impact  Have detailed policy and procedure  Train managers, supervisors & employees  Have explicit rules for contractors and third parties  Take proactive approach  Encourage early reporting  Immediately investigate and complete quickly  Take comprehensive remedial actions (employees, contractors, third parties)  Keep meticulous documentation

22. ©2009 Alston Hunt Floyd & Ing Whistleblowing The Problem Employees may mistakenly believe company is engaging in unlawful, unsafe or unethical practice Employment actions taken against such employees become suspect

23. ©2009 Alston Hunt Floyd & Ing Whistleblowing Strategies for Managing Problem  Educating employees about actual obligations under the law  Create procedure for employees to report concerns so internal investigation can be conducted  Conduct thorough investigation  Communicate findings to employees  Document findings  If employee takes legal action anyway, will have evidence to defend against claims

24. ©2009 Alston Hunt Floyd & Ing Final Comments  Employment law is complicated  Covered by federal and state laws  Laws, regulations and court decisions change  Important for employers to keep up with the changes  You need to be proactive  Join organizations that can help you keep up with the changes