Speaker: Failure to understand employment law among most common practice mistakes

Key takeaways:

• Ignorance of the law is not a defense in potential lawsuits.
• Laws apply to sick leave, overtime pay, personnel files, drug use and more.
• Title VII protects employees against discrimination.

WASHINGTON — Failing to understand basic employment law is one of the most common mistakes that practices make, according to a presentation at the American Academy of Allergy, Asthma & Immunology Annual Meeting.

“This is a fundamental issue,” Penelope J. Phillips, JD, employment lawyer, partner and shareholder with Felhaber Larson, said. “It is absolutely critical to have some basic understanding of employment laws — probably have a good employment attorney as well.”

In most states, any business with even just one employee qualifies as an employer and is subject to employment law, Phillips said. Also, ignorance of these laws is no excuse for noncompliance, she said.

“Saying ‘I didn’t know’ is not a valid defense when you get sued,” Phillips said.

Daily policies

Practices need to comply with sick and safe time laws and other policies for paid time off, in addition to the Fair Labor Standards Act and the Family and Medical Leave Act. Laws may vary at the state and local levels too.

“In Illinois, Cook County and the City of Chicago just adopted mandatory sick leave policies,” Phillips said.

Also, federal law requires overtime pay once employees exceed 40 hours in a week. But multiple states require overtime once employees exceed 8 hours in a single day. There are laws regarding employee benefits and I-9 eligibility as well, in addition to other laws.

“I just had a very large client violate Minnesota’s personnel record and personnel file statute when an employee asked for her personnel file and they didn’t give it to her within the timeframe required by law,” Phillips said.

Other laws that employers need to know include:

• National Labor Relations Act;
• Labor Management Relations Act;
• Employment Retirement Income Security Act;
• Drug-Free Workplace Act;
• Uniformed Services Employment Rights Act; and
• Workers Right to Know Act.

Practices also should familiarize themselves with drug testing regulations and laws that apply to workers’ and unemployment compensation, wage deductions, termination notices, whistleblowers, nursing mothers, retaliatory discharge and other issues, Phillips said.

Antidiscrimination laws

Federal, state and local antidiscrimination laws also apply to practices, Phillips said. At the federal level, Title VII protects employees based on race, color, creed, religion, sex, gender and national origin, and it applies to employers with 15 or more employees.

“But all the state antidiscrimination laws apply typically with one or more employees,” she said.

The Age Discrimination in Employment Act of 1967 protects workers aged 40 years and older from discrimination based on age at employers with 20 or more employees.

The Americans with Disabilities Act, which applies to employers with 15 or more employees, prohibits discrimination against qualified individuals with an actual or perceived disability or who have a record of a disability.

“An employer has an obligation to accommodate somebody’s disability if they can to allow them to perform the essential functions of their job,” Phillips said.

The Equal Pay Act of 1963 prohibits employers from engaging in sex-based wage discrimination among employees who perform substantially equal work.

The Genetic Information Nondiscrimination Act prohibits employers from discriminating against employees based on genetic information.

“You can’t ask people to disclose their family history,” Phillips said.

States and municipalities may have their own anti-discrimination laws that include additional protected classes that may be based on other factors, such as public assistance or marital status.

“Michigan protects people based on their height and weight,” Phillips said. “New York City does now too.”

Employers may face discrimination claims triggered by the job application process, interviews, hiring, promotions, terminations and other material changes in employment conditions.

Discipline, termination

Employers need to be aware of the National Labor Relations Board and the rulings and advisory opinions that it issues as well, Phillips cautioned.

“The Obama Administration, unsurprisingly, was pretty good in terms of being favorable to employees,” Phillips said.

The Trump Administration then was favorable to employers and changed everything that the Obama Administration did, she continued.

“Then as soon as Trump left office, the Biden administration was doing the same thing,” Phillips said.

For example, Phillips noted that the National Labor Relations Board ruled that Home Depot was not allowed to tell its employees what kinds of messages they could wear on their aprons. Social media usage may be protected too, she added.

“You cannot discipline your employees if they were to post on Facebook about how much they hate their job and how you’re a cruel and horrible person,” she said. “Those are the kinds of things that the National Labor Relations Board is looking into.”

When disciplinary actions are necessary, Phillips advised, employers need to document what happened.

“It doesn’t have to be fancy,” Phillips said, adding that specific forms are not necessary. “You just need to write it down. You need to communicate it.”

For example, when a front desk employee is rude to visitors, employers should document that behavior as well as any instructions to the employee to correct it. Warnings that result from any poor behavior that persists also should be documented.

“If the person does it for a third and final time, then you terminate them,” Phillips said. “That documentation can be very simple, but I think it’s key because it shows your reasons for your action.”

Phillips noted that employment in every state except Montana is at will, meaning employers can terminate any employee at any time for any reason, or for no reason at all, as long as those reasons do not violate antidiscrimination or antiretaliatory laws.

Still, she said, employers should be prepared to defend any termination decisions they make.

“Isn’t it just the right thing to do?” Phillips said. “You don’t have to give somebody a reason. But you always need to be ready to do that.”