Introduction to Employment Law
For HR professionals, having a deep understanding of the basic principles of employment law is crucial. Understanding what employment law covers and its various legal definitions is important so that HR professionals can effectively discern how these laws apply to their current workplace.
At its most basic, employment law creates specific rights and responsibilities between employees and employers. These laws are primarily derived from federal statutes, state statutes, and administrative regulations, as well as decisional law in the form of judicial opinions. There are three main types of employment law that HR professionals need to be aware of: The Equal Employment Opportunity Commission (EEOC) enforces several federal employment discrimination laws that make it illegal to discriminate against a job applicant or employee because of race, color, religion, sex, national origin, age, disability or genetic information. The five federal employment discrimination laws are: Title VII of the Civil Rights Act of 1964, which prohibits race, color, religion, sex and national origin discrimination; Equal Pay Act of 1963 , which prohibits sex-based wage discrimination; The Age Discrimination in Employment Act, which prohibits age discrimination in the workplace; Title I of the Americans with Disabilities Act of 1990, which prohibits disability discrimination; and Title II of the Genetic Information Nondiscrimination Act, which prohibits discrimination based on genetic information. Torts are cases wherein a plaintiff claims the civil wrongdoings perpetrated by the defendant have caused them harm. Employment torts include cases involving claims such as wrongful termination, sexual harassment, defamation, negligent hiring/retention, etc. Employment contracts are legally binding agreements that outline the terms and conditions of employment for both the employer and the employee. Due to the complexity of enforcing contract terms and conditions, employers should consult with a qualified lawyer specializing in this type of law. Aimed at protecting workers, OSHA regulations govern workplace health and safety requirements. OSHA disburses workplace safety regulations to ensure every worker is supplied with a safe working space that is devoid of health hazards.
Important Employment Laws and Regulations
There are a multitude of employment laws and regulations that regulate the way employers should deal with their employees. On the federal level, there are a number of regulations and agencies that oversee various aspects of employment. At the state and local levels, there are additional regulations and oversight. A few of the key employment laws include: Fair Labor Standards Act (FLSA) The FLSA governs minimum wage and overtime pay for most non-exempt employees (some specific exemptions may apply). This means that in addition to your base salary as a compensation rate, time for any overtime that you work will be taken into account when determining your pay. The OVSC enforces the FLSA in the U.S. Family and Medical Leave Act (FMLA) FMLA allows for unpaid leave for certain circumstances. However, the FMLA does not provide the right to compensation – it simply provides eligible employees the right to take up to 12 weeks of unpaid leave during a 12 month period for certain specified reasons. At the state level, the State Employment Agencies oversee and administer labor laws. The agencies are empowered to enforce state and federal employment laws, including investigations of unfair hiring and employment practices, working conditions (including health and safety), and compensation. The EEOC handles the investigation of filed complaints. However, it is important to realize that a complaint to the EEOC does not necessarily bar a lawsuit in most cases. Many employment practices liability insurance (EPLI) policies require complaints to be investigated prior to filing suit.
HR’s Role in Employment Law Compliance
Human Resources (HR) professionals are on the frontlines when it comes to legal compliance. As custodians of the company’s most valuable asset (its people), HR staff are responsible for ensuring that the organization adheres to federal, state, and local employment laws and regulations. This requires a solid understanding of the applicable laws in each jurisdiction in which the company operates, as well as the implementation of effective policies and procedures to manage compliance risk.
Understand the Laws: The first step in this process is to get acquainted with the applicable employment laws. This means knowing the federal laws that govern workplaces across the U.S., as well as the state and local laws that apply to your organization. In addition to maintaining accurate, up-to-date physical and online compilations of the applicable laws, HR staff should have a system in place for tracking the introduction of new or amended laws that will impact the company going forward.
Stay Educated: Employment laws are constantly being updated and revised. It’s crucial that HR professionals stay abreast of new developments in the law that affect their organization. This can be done by subscribing to legal publications, signing up for webinars and seminars, and networking with peer HR professionals.
Educate Others: Once there is an understanding of the laws, this information should be shared with all company personnel. For example, new employees should be educated on company policies and procedures that relate to their job functions, and employees in managerial or supervisory roles should be provided with training on the legal issues that pertain to the hiring, termination, classification, and retention of employees.
Written Policies and Procedures: Having written company policies and procedures in place is essential to legal compliance. They help you maintain a legally defensible position if your organization is sued. These written policies and procedures should be provided to employees (both at the time of hire and as updates are made), and employees should be given the opportunity to ask questions and seek clarification.
HR Audits: Regular HR audits are a key compliance strategy because they give you an objective way to measure your organization’s compliance efforts in each area of your HR responsibilities. These audits should cover matters such as hiring, company policies, classification, wage and hour issues, performance management, and terminations.
Consult Counsel: Finally, no HR department is so large that it can’t benefit from the advice and counsel of legal professionals. Having an attorney team that is familiar with your organization and industry can help keep the company up to date on developments in the law, review communications and policies, provide advice on individual cases, and defend EEOC charges and lawsuits.
Employee Training Best Practices for Employment Law
To ensure that HR professionals are equipped with the necessary skills and knowledge to navigate the complex landscape of employment law, it is essential to implement effective employment law training programs. Best practices for such programs typically include a combination of workshops, online courses, and continuous learning initiatives.
Workshops are an effective way to impart critical information about recent changes in employment law, while online courses allow flexibility and a self-paced approach to learning. Digital platforms also provide HR professionals with interactive tools and resources to deepen their understanding of legal issues impacting their organizations.
In addition to formal training programs, it is important to foster an environment of continuous learning within organizations. This involves regularly updating HR teams on new laws, offering re-training opportunities as needed, and encouraging professional development activities such as attending local, state, and national HR conferences and seminars.
Managing Employment Law Disputes
With a firm understanding of the various facets of key employment law issues, the challenge is to use this knowledge to promote organizational compliance and avoidance of employment law risk. Whether it’s conducting an internal investigation or more formal grievance process to resolve a workplace dispute, HR will be faced with a myriad of employment issues requiring compliance. These internal processes serve as vital opportunities to get the right information, engage in good fact finding, impartially assess the situation and proactively reduce potential employment-related liability. One issue that often comes up when resolving an employment dispute or grievance is whether or not to consult with an attorney. Generally speaking , consultation with an attorney before and/or during the application of an internal grievance process is not only prudent, but necessary, given the legal context and potential risks involved with any grievance process. An employer should consult with its legal counsel throughout the internal processes if: a) The matter involves any employment-related legal claims, or b) The employer fears the grievance may result in such legal claims, or c) If the grievance process itself has not been addressed in the employment policies and procedures. A comprehensive course covering the primary areas of employment law knowledge that HR professionals must understand is the best way to equip your human resources department with the appropriate tools to handle and resolve employment law disputes efficiently and effectively.
Trends in Employment Law
Emerging Trends in Employment Law: As the business of law continues to grapple with personnel problems across almost any conceivable area of human resources, a greater emphasis on technology and the use of better analytics will require human resource professionals and general counsels to be much more vigilant whether it be in tracking injuries of workers’ comp claims, litigation, affirmative action plans, or other areas for compliance. Some trends we have seen this year have included harassment training not only at the "mandatory" level but also making it more interesting with videos and other engaging means to impart information. Also the use of technology and e-training to give the employees a better "feel" for what the policy contains and additionally gives you an opportunity to track the compliance levels of your employees. The other area of recent development has been the use of this technology in a more robust way to keep track of the hiring process as it relates to affirmative action plans, protected veterans, working in AAPs from 2010 to 2016, and other protected groups. It is mandatory for companies that do government contracts – similar in style to the Sarbanes Oxley act for public companies – that you must maintain and follow an affirmative action plan. The technology now exists to allow us to do this in a much more efficient manner and to make it easier to keep track of. The general idea is that the company needs to keep its head above water – from strict compliance levels as well as keeping abreast of changes in the law- both regulatory and case law. These are just a few of the trends that have been emerging and continue to grow. Any process that can help the company and further identify training needs and opportunities for the employees should be strongly considered.
Employment Law Resources
For help in staying updated on employment law matters, there are many resources available. Publications of the National Employer and other employer groups are available both in print and electronically. E-newsletters and blogs are published regularly by management-side employment law firms and bar associations like the ABA. One example is the blog of the Section of Labor & Employment Law of the American Bar Association, where our partner Jeanne Goldberg is the Chair this year . In addition, there are many electronic portals that provide updates on a subscription basis. We use in the annual FMLA Conference that we held in 2015 the excellent resource, The HR Specialist Labor and Employment Advisor. There are many other magazines and newsletters that provide up-to-date information on employment law, including publications aimed at specific industries. Annual update seminars by law firms, bar associations and HR organizations are available on most common employment law topics.