The relationship between employers and employees was originally governed by the assumption that an employer was free to offer any terms for employment, and the employee was free to either accept or reject those terms. There were few protections for employees, whether from low wages, discrimination, or a physically dangerous work environment. In the teens and 1920s, however, American workers began to organize themselves into unions. In the 1930s the federal government formally recognized, with the enactment of the National Labor Relations Act (NLRA), that individual employees often lacked the power to force employers to pay fair wages or to provide a safe workplace. The NLRA set off an avalanche of new laws governing the workplace.
At first, these laws merely supplemented the work of labor unions, such as by mandating a minimum wage and overtime payments. With the Civil Rights Movement of the 1960s, however, the federal government, followed by many state governments, began to enact laws prohibiting discrimination against women and minority group members, and barring discrimination against older employees. In 1970 the federal government enacted the Occupational Safety and Health Act, setting minimum workplace safety standards. By 1990 Congress had enacted laws prohibiting discrimination against disabled workers, and requiring employers to reasonably accommodate such workers if the accommodation was not unduly burdensome.
Today a complex network of laws governs the employer-employee relationship with many provisions requiring government reporting or record-keeping. The more employees an employer hires, the more such laws apply to it, and the more likely the employer is to inadvertently violate a law simply because it is unaware of its requirements. Here are some of the laws and terms relating to those laws:
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. In most employment discrimination cases, the employee will have to prove that the employer took some sort of adverse employment action in order to win.
Affirmative action includes efforts by employers to remedy past discrimination in the workplace or industry by making a special effort to hire women or members of certain minority groups. Most private employers are not required to conduct affirmative action, and in fact, may violate the law by doing so. Government employers and contractors, in contrast, are often required by law to institute affirmative action programs.
Age Discrimination in Employment Act (ADEA) is a federal law that protects older employees (those over the age of 40) from employment discrimination on the basis of age. Only employers with more than 20 employees are required to comply with ADEA. The Americans with Disabilities Act (ADA) prohibits discrimination against any disabled employee or applicant who could, with or without reasonable accommodation of that disability, 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 not unduly burdensome and is necessary to help the disabled employee perform his or her job.
At-will employment defines the employment relationship in many states. Under this approach, the employer and employee both may terminate the employment relationship for any reason or no reason at all, just so long as the reason is not illegal or otherwise prohibited by law, such as discrimination. Without an express or implied agreement of employment, employees are usually considered at-will.
Bonafide occupational qualification (BFOQ) is a job requirement, such as a specified age or sex, or the ability to lift a certain weight, that is potentially illegal because it excludes a protected class of people, but which is proven to be in good faith and legal under the circumstances. The successful use of a BFOQ defense is rare.
Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law that requires employers to allow employees to continue their health insurance coverage after termination, in the same insurance group, at the group rate and providing the same benefits.
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 is truly disabled.
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 is a federal law that requires employers to pay the same wages to all employees who do the same work, regardless of gender.
Family Medical Leave Act (FMLA) is a federal law that requires most employers to give up to twelve weeks of unpaid leave to employees for the birth or adoption of a child or to take care of the employee’s own or family member’s serious illness. The FMLA also prohibits retaliation against employees who ask about or take advantage of their FMLA rights.
Fair Labor Standards Act (FLSA) is the federal statute that sets the minimum wage and maximum hours of work per day or week in most industries (see Wage and Hours laws below).
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 statutes.
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).
A hostile work environment is the basis for a type of 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 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 or pervasive that it creates an intimidating and offensive work environment, and actually alters the terms and conditions of employment.
Municipal employment (employment by a city government) is governed by special employee protections, including the right to due process of law, such as an administrative hearing before an employee is terminated, and additional privacy protections.
Occupational Safety and Health Act (OSHA) was enacted in 1970 and 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.
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 actually 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 laws such as COBRA, which requires an employer to continue some forms of employee insurance coverage for a period of time after the employee has been terminated. Some employment benefits are also mandated by state or federal law, such as Social Security, unemployment compensation, and workers’ compensation.
Retaliation for making a claim or reporting a violation is prohibited by most of the federal and state laws relating to the workplace. In the case of Title VII and other federal anti-discrimination laws, a retaliation claim may be maintained even when an employee cannot show that he or she was discriminated against.
Sexual harassment is a form of discrimination that is barred by federal law and laws in most states. Sexual harassment includes creating a hostile or offensive work environment-such as by tolerating offensive language or pictures or unwelcome sexual conduct directed at an employee-and requiring an employee to submit to unwelcome sexual advances in order to remain employed or receive some job benefit.
Title VII. Part of the federal Civil Rights Act of 1964 prohibits discrimination in employment on the basis of age, color, national origin, race, religion, or sex. Title VII also protects employees who complain about discrimination from being retaliated against by their employer.
Wage and hour laws include the Fair Labor Standards Act, which sets the federal minimum wage and requires that overtime compensation be paid to some employees, and many state laws, which may impose even higher requirements than federal law. Wage and hour laws also govern whether and when children may work.
Whistleblower laws prevent retaliation against employees for reporting or complaining about a violation of the law by the employer, or misuse of federal or state funds. Whistleblower provisions are included in a number of federal statutes and many states also bar retaliation against whistleblowers.
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 or discharge refers to terminating an employee in violation of a public policy of a state, 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 its employment contract with the employee.