Articles

More than 75% of the employment-related lawsuits I encounter relate to three federal employment laws — FMLA, ADA, and Title VII. This article is designed to better equip employers in handling these laws.

Documenting properly and knowing the basics will go a long way in helping your business steer clear of ugly and, often unnecessary, legal battles.

Family and Medical Leave Act of 1993 (FMLA)

Application:
50 or more employees

Overview:
Requires employers to provide up to 12 weeks of unpaid, job-protected leave for employees who have worked more than 20 workweeks (do not have be consecutive) in the current or preceding calendar year

Valid reasons for unpaid leave include:

  • Serious illness or other health difficulties that make the employee unable to perform his or her job
  • Caring for an immediate family member (spouse, child, or parent) with a serious health condition
  • Birth of a child to the employee and care for the newborn
  • Placement of a child with the employee for adoption or foster care

Employers may require 30 days advance notice and medical certification before granting FMLA leave.

The employer must maintain the employee’s health coverage under any “group plan” and restore employees to their original or an equivalent position with equivalent pay, benefits, and other terms (e.g., work schedule, eligibility for promotions, bonuses, etc.). Employees should not lose any employment benefit that accrued prior to his or her leave.

Example:
One company inadvertently gave FMLA benefits to someone who wasn’t entitled to them. When they realized the mistake, they revoked the benefits. The company failed to document the leave and is now in a mess because the person is claiming discrimination over the FMLA benefits being taken away.

Documentation:
The employer is responsible for designating leave as FMLA leave, regardless of whether the employee mentions FMLA, and providing written notice when employee requests leave.

It’s important to include FMLA policies in employee handbooks and in your company’s collective bargaining agreement and to display the Department of Labor’s poster summarizing FMLA’s major provisions.

Title VII of the Civil Rights Act of 1964 (Title VII)

Application:
15 or more employees

Overview:
Prohibits employment discrimination based on race, color, sex, religion, national origin, age, and disability in hiring, employment (all terms, conditions and benefits), and termination; also prohibits retaliating against an employee who files a charge.

If a complainant is successful in a Title VII cause of action, available remedies may include reinstatement, back pay, damages for future loss of earnings, emotional pain and suffering, mental anguish, and attorneys’ fees.

Example:
Racial graffiti aimed at a minority plant worker kept appearing in the plant’s restrooms. After weeks of painting over the graffiti and meeting with employees, the employer caught the culprit. The minority worker still sued, but the employer was not liable because the court determined the employer did everything possible, short of putting cameras in the restrooms, to remedy the situation.

Documentation:
The employer’s response to the situation matters. Document every complaint and investigate every complaint thoroughly, involving legal counsel where there is an indication of a serious problem.

At a minimum, include an anti-discrimination and anti-harassment policy in your
written policy manual. Have people review and sign it yearly. This document should set clear procedures for reporting problems, with plenty of alternative options, including a way for employees to report their direct supervisors. You should also hang the Department of Labor’s “Equal Employment Opportunity is the Law” poster in a visible place.

Americans with Disabilities Act (ADA)

Application:
15 or more employees

Overview:
Prohibits employers from discriminating against qualified individuals with disabilities and requires that an employer make “reasonable accommodations” in certain circumstances for a disabled employee who is otherwise qualified for the job.

A person may be otherwise qualified for the job if: the person meets the educational, experience, skill, and other job-related requirements; and the person can perform the essential job functions.

“Reasonable accommodations” might include a modified work schedule, modification of equipment, or making facilities accessible to disabled persons. The employer may not have to make reasonable accommodations if doing so would result in “undue hardship.” An undue hardship includes changes that are significantly expensive, disruptive, or cause the employer to change the basic nature of the business.

Example:
A severely hearing impaired man applied to be an electrician for an industrial builder. The job required that the person be on a high beam and, for safety, be able to use a radio and hear others. The person filed a discrimination claim with the Employment Opportunity Commission (EEOC). The EEOC determined that the person would pose a “direct threat” to the health or safety of himself or others in that
particular work environment.

Documentation:
It’s a good idea to identify the essential job functions and propose a written job description before beginning the hiring process. If you find the person has a qualified disability, provide and document reasonable accommodations.

In addition, covered employers are required to display the poster, “Equal Employment Opportunity is the Law,” in a prominent place.