Last Updated on August 10, 2020 by bigfish-admin
Growth is exciting, but it also brings new HR challenges
When your business grows, adding employees may change the feel of your culture as well as your floorplan—and your organization may become subject to federal and state laws that take effect once you reach a certain threshold of employees.
Most employment laws apply to organizations based on the number of people they employ, so as you grow, it’s vital to keep up-to-speed on any laws that newly apply or will soon apply to your organization.
To understand the scope of many of the federal laws discussed below, employers need to know the definition of discrimination. In the context of employment law, discrimination means taking any adverse (or negative) action against an employee based on their inclusion in a class that is protected by law. Adverse action includes, but isn’t limited to, the following:
- Failure to hire
- Failure to train or offer an opportunity
- Failure to promote
- Failure to offer an accommodation required by law or offered to a peer
- Offering a lower wage or salary than to a peer
- Offering fewer benefits than to a peer (e.g. vacation, 401(k), bonuses, covered expenses)
- Taking more aggressive disciplinary action, including any of the above, than with a peer
- Reducing pay or benefits
- Transferring to a less desirable position, shift, or location
Americans with Disabilities Act (ADA) – Applies to companies with 15+ employees
The ADA protects qualified individuals with disabilities from unlawful employment discrimination and requires an employer to make reasonable accommodations for disabled individuals, unless doing so would place an undue burden on the employer.
Title VII of the Civil Rights Act – Applies to companies with 15+ employees
Title VII prohibits discrimination on the basis of race, color, national origin, religion, sex, sexual orientation, and gender identity. Note that last month, in a landmark Supreme Court decision, the Court ruled that sexual orientation and gender identity are now included as protected classes under Title VII.
Pregnancy Discrimination Act (PDA) – Applies to companies with 15+ employees
The PDA amended Title VII of the Civil Rights Act to specifically protect individuals from discrimination based on pregnancy, childbirth, or any related medical conditions. If an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the employer must treat them in the same way the employer treats any other temporarily disabled employee.
Genetic Information Nondiscrimination Act (GINA) – Applies to companies with 15+ employees
GINA makes it unlawful for employers, employment agencies, unions, and training programs to discriminate against an individual because of genetic information. Genetic information most commonly comes to an employer as family medical history, but it also includes DNA information acquired through testing.
Age Discrimination in Employment Act (ADEA) – Applies to companies with 20+ employees
The ADEA prohibits discrimination against those 40 and older, and prohibits age preferences or limitations in both posting and practice. It forbids mandatory retirement ages, except for certain executives (such as airline pilots) and high policymakers who are over 65 and entitled to deferred compensation of a minimum dollar amount per year.
Family and Medical Leave Act (FMLA) – Applies to companies with 50+ employees
FMLA allows qualified employees to take job-protected leave to care for themselves or a close family member with a serious health condition. It also prohibits discrimination or retaliation against employees for taking leave under the Act.
Employer Mandate of the Affordable Care Act (ACA) – Applies to companies with 50+ full-time equivalents
The Employer Mandate requires employers with 50 or more full-time equivalent employees (30+ hours per week) to offer minimum essential health coverage at an affordable rate to all full-time employees.
Some states are heavy regulators (think West Coast and Northeastern states, in particular), while others are content to add little to what is required by federal law. The laws below are either relatively common or gaining steam in state legislatures, so they should be on your radar. The HR Support Center can help you learn about these and other applicable laws in the state (or states) in which you operate.
“Most employment laws apply to organizations based on the number of people they employ, so as you grow, it’s vital to keep up-to-speed on any laws that newly apply or will soon apply to your organization.”
Additional Protected Classes – Application varies by state
Many states have their own civil rights laws that look much like Title VII, but these often take effect at a lower employee count and may include additional protected classes. Some of the most commonly added protections are for arrest records, off-duty use of legal products, consumer debt garnishment, credit information, and marital status.
Pregnancy Accommodation Expansions – Application varies by state
These laws require that employers provide specific workplace accommodations, even if the employee isn’t suffering from a pregnancy-related disability. Many of the accommodations must be provided without a doctor’s note, such as additional food and water breaks, seating, and reasonable lifting restrictions. Employers may still ask for a note for other accommodations, such as flexible scheduling or light duty, but an employee will not need to prove that they are disabled. Employers do not need to provide accommodations if doing so would create an undue hardship, but the ‘significant difficulty or expense’ standard that is required to prove undue hardship is difficult for most employers to meet.
Paid Sick Leave – Application varies by state
So far, the paid sick leave laws that have passed share some common elements. Notably, employers are typically required to offer at least one hour of paid sick leave for every 30 or 40 hours worked, and employees can use their leave to care for themselves or a family member (most states also allow the time to be used in cases of domestic or sexual violence). The laws vary most—though still not dramatically—with respect to which employees are eligible and when, and what kind of documentation can be required to prove that employees used the leave for a permissible purpose. Some states allow smaller employers to provide unpaid leave.
Criminal History Inquiry Bans – Application varies by state
Often referred to as “Ban the Box,” these laws prohibit employers from asking about criminal history either until an interview is scheduled or a contingent job offer is made to the candidate. There may also be specific notice requirements if an employer decides not to hire an applicant because of their criminal history.
Salary History Inquiry Bans – Usually applies to all employers
These laws prohibit employers from inquiring about a candidate’s current or previous wages, whether directly or through a third party. Some salary history inquiry bans are standalone laws, while others are part of larger equal pay acts.
Social Media Privacy – Usually applies to all employers
Most of these laws share some themes. First, they prohibit employers from requiring or requesting that employees or applicants disclose their login credentials. Second, the laws say employers can’t require or request that an employee or applicant access their personal social media in the employer’s presence or add the employer (or one of their employees) to their contacts or friends list. Third, the laws prohibit retaliation or failure to hire should an applicant or employee refuse such requests for access.
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