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Employment - An Overview

Hiring
When hiring a new employee or being hired an employer and employee must be aware of all of the relevant state and federal laws that govern the hiring, compensation, treatment, and termination of all employees. For example, Title VII of the Civil Rights Act of 1964 (Title VII) forbids the use of race, color, national origin, religion, and sex in all hiring, employment and termination decisions. Also, an employer must follow federal laws concerning documentation and preservation of that documentation.

Employers must also adhere to state laws that govern hiring, certification, and the reporting of new employees. Additionally, if an employer is administering tests (i.e. drug or psychological), the employer must ensure that the administration of such test comports with the employee’s personal privacy rights.

Compensation
For most employers, the issue of base pay is a common one. Both state and federal law cover this issue. The federal law that establishes the minimum wage is the Fair Labor Standards Act (FLSA), which was amended by the Fair Minimum Wage Act of 2007 to raise the minimum wage.

State law can set a higher minimum wage; however, few states do. If the federal minimum wage standard is higher, the employer must pay the higher federal minimum wage. Keep in mind that some industries are permitted to pay a lower minimum wage and some employees are not covered by the FLSA (i.e. executive, administrative, and professional employees). In addition, employees who regularly receive tips, apprentices, some workers with disabilities, and younger workers may receive lower wages under certain conditions.

Leave
Employees will inevitably need to take time off from work. There are statutes that cover certain types of leave. The most notable and, dare I say, applicable statute is The Family and Medical Leave Act (FMLA). FMLA allows covered employees up to twelve weeks of unpaid leave to deal with certain family issues. Pregnancy and sickness within the family are usually covered under this Act.

Termination
At-will employment is the most common form of employment throughout the United States. Being an at-will employee means that an employee can be fired at any time and for any reason as long as the reason is legal. At the same time, an employee can leave the job at any time for any reason. According to state law, most employment that is not governed by an employment contract, is presumed to be at-will.

Employees who are working under an enforceable employment contract generally require termination for-cause. For-cause termination requires the employer to have legitimate reasons for termination.

In all aspects of employment an employer should be aware of existing law, both state and federal to ensure that they are in compliance. While an employee is not expected to be as familiar with federal and state law, such familiarity could help an employee determine whether they are being treated fairly by their employer.


Contact us at 877-479-7970, or e-mail us at info@law-thomas.com, to arrange for a confidential complimentary consultation on your employment law needs.
FAQ's
Q: How do I find out if a(n) (potential) employee is legally permitted to work in the United States?
A: Before hiring a new employee the federal government requires that the (potential) employee fill out an I-9 form. This form asks for proof of eligibility to legally work in the United States. This form does not have to be turned into the federal government but must be kept on file for at least three years and be open to inquiry by government officials.

Q: Is disability an acceptable reason for refusing to hire a person?
A: This is only an acceptable reason if the disability will prevent the employee from performing an essential function of the job. However, if there can be a reasonable accommodation made that will permit the disabled applicant to perform the essential task, the accommodation must be made.

Q: Is disability an acceptable reason for refusing to hire a person?
A: This is only an acceptable reason if the disability will prevent the employee from performing an essential function of the job. However, if there can be a reasonable accommodation made that will permit the disabled applicant to perform the essential task, the accommodation must be made.

Q: Do I have to give reasons for not hiring someone?
A: No. A reason does not have to be given for not hiring an employee. But caution should be taken if there is the possibility that an illegal decision was made.

Q: How much do I have to pay my employees?
A: Compensation depends on the employee. Generally, if the employee is not in an executive, professional, or supervisory role, you would have to pay the individual at least minimum wage (state or federal, which ever is higher). Keep in mind also that some industries and other categories of employees may fall under certain minimum wage exemptions.

Q: Can I fire an employee for any reason?
A: The answer to this question depends on the state and the type of job the employee holds. Most states have what is called "at-will" employment. This means that the employee can be fired at any time for any legal reason. Some jobs are covered by contract in which case a legitimate reason would have to be offered for termination.

Resources
This site features all of the federal government information of employment practices and laws regarding such things as wages and hiring. This site also provides links to state law documents.

This site provides an overview of laws within the scope of the EEOC. These laws include Title VII of the Civil rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The site also features a short question and answer section.

Official United States Government Website - The official U.S. government website provides both general information and also access to online forms for use by an employer. Links to the IRS and the United States Citizenship and Immigration Service are provided.

Legal Information Institute - This site provides general legal information about employment law. The site also provides information on specific employment related subjects such as pensions and workers' compensation.

Occupational Safety and Health Administration - This site provides detailed information on safety standards that have to be followed in most industries. This link is both employee and employer centered.