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Employer Law FAQ

Employment Law - Employer

How must an employer respond to a request for accommodation?

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to disabled employees who need them to complete their job duties. An employee who needs a reasonable accommodation should notify the employer. The notification does not need to be in writing, and the employee can request a reasonable accommodation at any time during employment. Additionally, job applicants also may request reasonable accommodations in order to complete the interview process.

Once an employer receives a request for accommodation from an employee, the employer should sit down with the employee to discuss the types of accommodations that may best help him or her. Employers may ask the employee about the nature of the disability and how it impairs his or her ability to complete the job. Employers may ask the employee to demonstrate how the disability limits his or her job performance. Employers also may ask the employee for suggestions about the type of accommodations he or she believes would best work.

If the disability or the need for reasonable accommodations is not obvious, the employer may ask the employee to submit documentation that the employee has an ADA-protected disability and that the disability requires reasonable accommodation. The employer also can require the employee to provide documentation from a licensed professional, such as a physician. The type of professional will depend on the type of disability the employee claims to have. Employers cannot request information from the employee that is unrelated to the specific disability. For example, employers may not request an employee's entire medical file.

Employers do not have to provide the most expensive accommodation or even the best accommodation - only the most reasonable one, which means an accommodation which will effectively allow an employee to perform his or her job duties. Likewise, employers do not have to provide the exact accommodation requested by the employee. Employers also do not have to provide accommodations that may have a personal use, such as wheelchairs, eyeglasses or hearing aids. Finally, employers do not have to provide accommodations that would create an undue hardship for the business, such as overly expensive accommodations or those unreasonably difficult to provide.

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What must an employer do if it suspects that an employee performance problem is caused by a medical condition?

Generally, employers are under no obligation to determine whether or not an employee's substandard performance may be caused by a disability. However, if the employer has received notice that the employee has a disability protected by the Americans with Disabilities Act (ADA), the employer may have an obligation to work with the employee to find a reasonable accommodation prior to taking disciplinary action against the employee or firing the employee for performance problems.

Many conditions that may affect an employee's performance may not be obvious by looking at an employee, but still may receive protection under the ADA as a disability. For example, an employee may inform the employer that he or she has been diagnosed with depression. Afterwards, the employer may notice a decline in the employee's performance. The employer does not have a duty to assume that the performance issues are related to the employee's medical condition. Rather, the employer should meet with the employee and ask him or her to explain the change in work quality. If the employee states that it is caused by his or her depression, the employer must then engage in an interactive process with the employee to determine whether some accommodation, such as a leave of absence, might assist the employee in performing the functions of his or her job. However, if the employee does not link the performance problem to his or her disability, then the employer is not required to assume that they are related.

Furthermore, if no reasonable accommodation exists or is effective in improving the employee's performance, the employer is not required to lower the expectations for job performance to accommodate the employee and to avoid termination.

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Must an employer give employment references?

Employers are not under any obligation to provide references for former employees. Providing employment references may leave former employers open to legal liability from the former employee and the prospective employer.

For example, if the employer makes disparaging comments about a former employee and as a result, the employee is not hired for the new position, the former employee may seek to sue the former employer for defamation or slander. Likewise, if the former employer fails to disclose the former employee's behavioral or disciplinary issues to the prospective employer and the prospective employer relies on this information to hire the employee, the former employer may face lawsuits from the new employer for any crimes or torts committed by the employee.

Employers also must take care not to reveal information about the employee that could give rise to an invasion of privacy claim. For example, employers may not disclose private family or medical information about an employee. A private citizen may state a claim for invasion of privacy where another has disclosed information that is not of general interest to the public, and where such disclosure would be offensive to the reasonable person.

Thus many employers now have policies to only provide basic employment verification information about an employee, such as the duration of employment, position title, salary and other basic information.

Employers desiring to give more information about an employee's performance and qualifications may limit their potential liability if they do so based on verifiable facts. For example, if the employee received a promotion or was part of a disciplinary proceeding, the employer may provide this information so long as they have evidence, such as personnel records. Also, some states have enacted laws to protect employers who provide references based on credible information from civil lawsuits.

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What must an employer do if it receives a complaint of harassment?

An employer who receives a complaint of harassment on the basis of sex, race, national origin, age, religion or disability has an obligation under federal and state law to take immediate steps to investigate the complaint and then take prompt, appropriate remedial action. In most cases, this means the employer has a duty to begin investigating the complaint within 24-48 hours.

Even if the employer believes the complaint is unjustified, the employer still has a duty to conduct a reasonable investigation in order to minimize the possibility of legal liability. Likewise, the employer may not fire or take other adverse employment action against the person accused of the harassment without first conducting an investigation. Employers who do so may face claims of wrongful termination, retaliation, defamation and/or reverse discrimination.

During the investigation, the employer may need to take steps to separate the person who made the complaint from the person(s) alleged to have committed the harassment. The employer must be careful that any actions it takes to do so may not be considered retaliatory by either party. For example, the employer cannot forcibly transfer the individual making the complaint to another department.

If after conducting the investigation the employer determines that some or all of an employee's complaint is grounded in fact, the employer must take actions reasonably calculated to end the harassment. Such action could include disciplining the harasser and formally noting the discipline in his or her personnel file, requiring him or her to take training or firing the harasser.

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What should an anti-harassment policy contain?

All employers should have a written anti-harassment policy and a corresponding complaint and investigation procedure. Employers who do not have such a policy may open themselves up to liability in instances when a supervisor is charged with harassing an employee. Additionally, employees who have been the subject of harassment have a duty to report it to the employer. Having a complaint procedure in place provides employees with a means to do this - and employees who do not use the procedure to notify the employer of the harassment may have difficulty winning a harassment lawsuit against the employer.

Employers should post their anti-harassment policy in the workplace and distribute it to all employees. Employers should explain what harassment is to their employees, and that it is not tolerated in the workplace. Employers also may want to provide their managers and supervisors with training so that they understand what harassment it is, how to recognize it in the workplace and the correct way to handle employee complaints.

Most critically, such a policy should contain a reasonable complaint process for employees. A policy that requires an employee to complain to his or her supervisor will not be considered reasonable if the supervisor is the person harassing the employee. There has to be alternative avenues for the employee to take if the designated intake officer is the harasser. The procedures should be as easy to follow as possible. A policy that requires the employee to submit a written, witnessed complaint to one distantly located officer of the company may be considered unduly burdensome or intimidating, and more likely to discourage than encourage complaints.

It is also important that the complaint and investigation procedures are carried out equally for all employees. While there may need to be some changes in the types of inquiries that are made based on the type of complaint, to ensure the fairness of the procedure, employers should take care that their anti-harassment policies are applied uniformly.

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Must an employer perform formal performance reviews?

There is no legal requirement that employers perform formal performance reviews of employees, just as there is no general requirement that an employer have just cause to fire an employee. An employer may, however, be required by the terms of an employment contract, employee handbook or collective bargaining (union) agreement to review an employee annually, bi-annually or on some other basis.

Even in situations where an employer is not required to conduct performance reviews, it is a good practice for employers to do so. It provides employers a means of evaluating employees, identifying coaching and/or training opportunities and setting uniform criteria for determining promotions and raises.

Performance reviews also create a way for employers to document any performance issues or other disciplinary matters that later may serve as reasons for denying a promotion or raise, or lead to termination. Employers then will have documentation to support their employment decisions should an employee attempt to bring legal action against the employer, such as for wrongful termination, for example.

However, written performance reviews also can be a double-edged sword for employers. If an employee is terminated for issues relating his or her performance, earlier performance reviews that fail to mention these issues or are highly positive may provide support to the employee's argument that the stated reasons for termination were a pretext for discrimination by the employer. Thus, it is important that employers using performance reviews have a standardized system and properly record all relevant information regarding an employee's performance, good or bad. Otherwise, an employer's poor record-keeping practices could come back to haunt it.

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May an employer convert some or all of its employees to independent contractors and thereby avoid paying employment-related taxes and benefits?

An independent contractor is a worker who is self-employed and who performs work for an employer on a project or contractual basis. Independent contractors also may be referred to as contract or contingent workers. Whereas an employer must pay for state or federally mandated benefits for its employees - such as Social Security, worker's compensation and unemployment compensation - independent contractors are not entitled to such benefits. In addition, an employer is required to withhold payroll taxes from an employee's pay, whereas an independent contractor must pay his or her own taxes. Thus, employers may save considerably by hiring independent contractors.

Whether a worker is legally categorized as an independent contractor or an employee is not dependent on the title of the worker's position. Likewise, the existence of a contract stating the employment relationship is that of an independent contractor alone is not sufficient to determine the nature of the relationship. Rather, whether a worker is an employee or an independent contractor is determined by the duties actually performed by the worker and the degree of supervision and control that the employer exercises over the worker.

For example, a contractor who holds a high-level position with the employer, works at the employer's workplace, is paid by the hour, uses the employer's equipment or takes specific and detailed directions regarding his or her job duties from an employer, is likely to be characterized as an employee by government entities, even if the worker has agreed with the employer to be characterized as an independent contractor. In contrast, a worker who is paid on a project (and not hourly) basis, works for more than one company at a time, works out of his or her own office or home, uses his or her own equipment and is given a task to accomplish and left to his or her own discretion as to how to complete the project, is more likely to be classified as an independent contractor.

An employer whose contractors are retroactively determined to be employees may be required to pay back employment taxes and penalties. In addition, if the employer sponsors certain employee benefit plans for its employees, such as health insurance or a pension program, the employer may be required to provide the misclassified employees with those benefits retroactively, depending on the terms of the individual benefit plans. Therefore, before converting employees to independent contractors, an employer should consult an attorney and make sure that the workers actually meet the qualifications for an independent contractor.

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Must a company provide a smoke-free workplace to its employees?

Although second-hand tobacco smoke is considered by many to be a health hazard, federal law generally does not require employers to provide smoke-free workplaces. Only in certain situations must an employer eliminate smoking from its facilities. For example, the Occupational Safety and Health Act (OSH Act) may require a smoke-free workplace in situations where industrial contaminants may mix with the smoke and create air quality so poor that it violates workplace safety standards.

There has been more activity at the state and local level to enact smoke-free workplaces. Some state statutes broadly regulate smoking in the private workplace. Others states prohibit smoking only in places of public accommodation or limit the prohibition to public employers. Other state laws only prohibit smoking in certain types of workplaces, such as hospitals, schools and common carriers.

Many employers are implementing policies to regulate smoking at work by confining smoking to certain areas or banning the practice altogether. Additionally, employees who have a disability protected by the Americans with Disabilities Act (ADA) that is related to tobacco smoke may be able to request reasonable accommodations from their employers to prevent exposure to the dangerous smoke.

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Under the Family and Medical Leave Act, when may an employer refuse to allow an employee to take family or medical related leave or refuse to reinstate an employee after such leave?

Under the Family and Medical Leave Act (FMLA), a private employer with at least 50 employees is required to give qualified employees 12 weeks of unpaid leave each year for certain medical and family reasons, such as the adoption or birth of a child or to care for a serious health condition of the employee or an immediate family member. In order for an employee to be eligible for FMLA leave, he or she must have worked for the employer for at least one year and worked for at least 1250 hours during that year.

There are certain situations, however, in which an employer may delay or deny such leave. For example, if the reason for the FMLA leave is foreseeable, the employee must provide the employer with at least 30 days notice prior to taking the leave. If the employee fails to do so, the employer may require the employee to delay his or her leave until the notice period has elapsed. However, if the reason for leave is not foreseeable, such as a sudden injury or illness, then the employee is only required to give the employer as much notice as is possible under the circumstances.

Employers also may deny or delay leave if the employee fails to provide timely medical certification of the need for leave, whether the leave is for the employee's medical condition or to care for a spouse, parent or child. Employers have a right to require employees provide medical certification to prove that requested time-off is for a FMLA approved-purpose.

The FMLA also requires employers to reinstate employees to the same position or one with similar job duties after returning from FMLA leave. However, in some situations, employers may decline to reinstate an employee. If the employee meets the definition of a "key employee," the employer does not have to reinstate him or her to the position. A key employee is an employee in a highly-paid, salaried position with the employer. Employers may refuse to rehire key employees if doing so would cause "substantial and grievous economic injury" to the business operations to do so.

Employers also do not have to reinstate employees to their position if the position was eliminated during his or her leave and the position would have been eliminated regardless of whether the employee took the leave. Likewise, if the employer notifies the employee at the time he or she begins a medically related leave that the employee will be required to provide certification of fitness for duty before he or she may return, the employer may refuse to reinstate the employee until he or she provides such certification. Finally, if the employee notifies the employer at some point during the leave that he or she does not intend to return, the employer's obligation to reinstate the employee ends. This is the case even if the employee later changes his or her mind.

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Learn More: Employment Law

Until the turn of the century, there were virtually no laws governing the employment relationship. For good or for bad, an employer was free to offer any terms or conditions of employment it wished, and an employee was free to leave if he or she was not satisfied. Although this situation was, by and large, better for the employer than the employee, the employer also had few legal protections. For example, employers did not receive protection from worker's compensation laws and employees injured in the workplace could sue the employer to recover damages for their injuries.

With the growth of labor unions in the 1920s and 1930s, the federal government took an increased role in regulating the workplace, enacting minimum wage and overtime requirements and mandating safety standards. By the 1960s, the federal government and many state governments had made discrimination on the basis of race, sex, national origin, religion and age illegal, and by the early 1990s, workers who were disabled or needed medical leave gained additional protections.

Today a complex network of laws and regulations at the state and federal level governs the employer-employee relationship. Employers small and large have a vested interest in understanding employment laws and how they affect them at all levels of running their business. The better the understanding employers have of these complex laws, the better they can limit the potential for lawsuits and penalties for violations. Here are some of the laws and terms employers should be aware of:

Adverse employment action is any action taken by an employer that negatively affects an employee's job. For example, demotion, firing, discipline or failure to promote are all examples of adverse employment actions. In most employment discrimination cases, the employee will have to prove that the employer took some sort of adverse employment action against the employee because of a discriminatory reason.

Affirmative action includes efforts by employers to remedy past discrimination in the workplace or an industry by making a special effort to hire women or members of certain minority groups. Most private employers are not required to implement affirmative action programs, and in fact, may violate the law by doing so. In some instances, private employers may be required by court order to have an affirmative action program. Government employers and private employers who have government contracts, in contrast, generally are required by law to institute affirmative action programs.

Age Discrimination in Employment Act (ADEA) is a federal law that protects employees age 40 or older from employment discrimination on the basis of age. Federal, state and local government entities and private employers with more than 20 employees are required to comply with the ADEA.

Americans with Disabilities Act (ADA) prohibits discrimination against any qualified disabled employee or applicant who could, with or without a reasonable accommodation, perform a job. The Act also requires an employer to provide accommodation, such as modified work hours or duties or special equipment, if such an accommodation is necessary to help the disabled employee perform his or her job and is not unduly burdensome for the employer to provide.

At-will employment defines the presumed employment relationship for many employees in most states. In an at-will employment relationship, either the employer or the employee may terminate employment for any reason or no reason at all, just so long as the reason is not illegal or otherwise prohibited by law. For example, employers may not terminate an employee for a discriminatory purpose protected by federal or state antidiscrimination laws. Without an express or implied agreement of employment, employees usually are considered at-will.

Bona fide occupational qualification (BFOQ) is a job requirement necessary to complete the duties of a specific employment position. In some circumstances, BFOQ may be illegal because it excludes a protected class of people, such as requiring only people of certain ages or only those who can lift a certain amount of weight. Employers facing discrimination charges because of a job qualification that limits who may hold the employment position may have a defense to the claim if they can show the qualification is in good faith and bona fide under the circumstances.

Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law that requires employers to provide employees and their beneficiaries the opportunity to continue their health insurance coverage after certain qualifying events. These events include termination of employment, reduction in hours, legal separation or divorce, eligibility for Medicare coverage or loss of dependent status.

Employee Retirement Income Security Act (ERISA) governs how private employers must manage employee benefit plans, such as pension funds, health insurance and disability benefits. ERISA sets certain limitations on the way the funds in such plans may be invested and prohibits an employer or plan administrator from wrongly refusing to provide plan benefits, such as refusing to pay disability benefits to a plan participant who qualifies for payment of the benefits.

Employee rights include the right to privacy, to be reinstated to work under certain circumstances if the employee serves with the military, and limits on an employer's right to conduct a background or credit check, garnish employee wages or require an employee to take a polygraph test.

Employment contracts include written agreements signed by the employer and employee, as well as implied contracts created by employee handbook terms or verbal agreements. An employment contract can govern the length of employment, vacation, benefits and stock ownership, circumstances under which the employee may be fired, and whether the employee may compete with the employer after he or she has left the job.

Employment discrimination is prohibited by federal law, and by similar laws enacted by most states. Discrimination on the basis of race, national origin, gender, age, disability, and religion is illegal under federal law. Some states, cities, or counties also include other protected classes of individuals, barring discrimination based on sexual orientation, gender identity, and other grounds. Harassment on the basis of membership in one of these protected categories is a form of discrimination.

Equal Pay Act (EPA) is a federal law that requires employers to pay male and female employees the same wage for work that requires equal skill, effort and responsibility under similar working conditions. Employers still may pay different wages to male and female employees for legal reasons, such as merit or seniority.

Family Medical Leave Act (FMLA) is a federal law that requires covered employers to provide employees with up to 12 weeks of unpaid leave for certain purposes, such as the birth or adoption of a child, or to take care of the employee's own or family member's serious illness. Employers generally are required to reinstate employees who use FMLA time to their original position or an equivalent one.

Fair Labor Standards Act (FLSA) is the federal law that sets minimum wage and overtime compensation standards as well as standards for child labor for employers and employees covered under the Act. The law makes a distinction between "exempt" and "non-exempt" employees, and employers may not be required to pay overtime and/or minimum wage to all classes of employees.

Federal Employers' Liability Act (FELA) provides a way for employees of railroads to sue their employers for injuries sustained on the job. The law is, in essence, the federal railroad worker counterpart to state workers' compensation laws.

Health Information Portability and Accountability Act (HIPAA) is a federal law that protects confidential medical information belonging to all individuals. In the employment context, HIPAA means your employer may not have access to your confidential medical information unless it is necessary for the business (i.e., your employer views the results of a drug-screening test to ensure workplace safety, or you submit medical certification to your human resources department to confirm your eligibility for FMLA leave). HIPAA also limits how an employer may store an employee's confidential medical information and who may have access to it, among other things.

Hostile work environment may be the basis for a harassment claim. Although most hostile work environment claims involve allegations of sexual harassment, a hostile work environment may be based on other protected characteristics, such as an employee's race, national origin or religion. A hostile work environment is created where the presence of harassing behavior (in the case of sexual harassment this could include demeaning or sexual photographs, jokes, threats or overall workplace atmosphere) is so severe and pervasive that it creates an intimidating and offensive work environment.

Occupational Safety and Health Act (OSH Act) requires every employer to provide a workplace that is free of dangers that could physically harm an employee. The law covers everything from dangerous equipment to long-term exposure to pollutants or radiation. Employers may be subject to inspections by OSHA investigators. Employees may report violations to OSHA directly or OSHA may decide to conduct a workplace inspection of its own volition.

National Labor Relations Act (NLRA) is a federal law that regulates the employment relationship between certain employers and employees. Although the NLRA is most commonly associated with unionized employers and employees and most of its scope is devoted to regulating that relationship, some of its coverage extends to all employers and employees.

Pensions, benefits and compensation are governed by an array of laws, including the Employee Retirement Income Security Act, the Fair Labor Standards Act and COBRA. Employers are not required to provide certain types of benefit, such as health insurance, disability and paid time off. Some employment benefits are also mandated by state or federal law, such as Social Security, unemployment compensation and workers' compensation.

Retaliation occurs when an employer takes adverse employment action against an employee for exercising some legal right, such as filing a discrimination claim against the employer. Retaliation is prohibited by state and federal antidiscrimination and other employment laws.

Sexual harassment is a form of gender-based discrimination that is barred by federal and state law. Sexual harassment may take the form of a hostile work environment, where the behavior of co-workers creates an environment so poisoned that the victim of the harassment cannot carry on their job duties. Some examples of behavior that could create a hostile work environment includes offensive language or jokes, inappropriate pictures, unwelcome touching or other inappropriate sexual conduct directed at an employee. Sexual harassment also may occur when a supervisor requests sexual favors in exchange for employment benefits, such as a raise or promotion, and threatens the employee with adverse employment action for refusing the favor. This type of harassment is referred to as "quid pro quo" harassment.

Title VII is part of the federal Civil Rights Act of 1964 and prohibits discrimination in employment on the basis of race, color, national origin, religion or sex. Title VII also prohibits employers from retaliating against employees who make a discrimination claim against an employer, participate in an internal discrimination investigation or take part in a legal proceeding against the employer, regardless of whether or not the employer is later found innocent of the charge.

Wage and hour laws include the Fair Labor Standards Act, which sets the federal minimum wage and overtime compensation requirements that covered employees must provide to certain employees. State laws may impose even higher standards than federal laws.

Whistleblower laws prevent employers from retaliating against employees for reporting employer legal misconduct or violations to an appropriate state or federal agency. Whistleblower provisions are included in a number of federal statutes as well as state laws. Some states require the employee to have actual knowledge of the employer's wrongdoing while others only require the employee have a good faith belief the employer has violated the law.

Worker Adjustment and Retraining Notification Act (WARN Act) requires an employer to give written notice to union representatives or to state agencies and individual employees prior to closing a plant or making a mass layoff.

Wrongful termination refers to terminating an employee in violation of a recognized public policy, such as when the employee has reported a violation of the law by the employer. Many states also recognize a claim for wrongful termination where the employer has violated the terms and conditions of its employment contract with the employee.

The area of employment law covers a vast field of regulations, statutes and case law in a wide spectrum of areas. Employers would be wise to seek legal assistance not only when facing legal action, but also in developing their companies' policies and procedures. For more information, contact an experienced employment law attorney in your area today.

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Betty L. Brown
Board Certified by the Texas Board of Legal Specialization
in Labor and Employment Law
Fountain Park
1021 Long Prairie Road, Suite 402
Flower Mound, TX 75022
Phone: 972-355-0092
Fax: 972-899-9635