Through partnerships, advocacy, networking and the relationships with the federal establishment and the private sector, LULAC has been able to increase job opportunities for Hispanics in the workplace.
LULAC is aware, however, that in many instances access to equal employment opportunity is thwarted, delayed or denied because of discriminatory policies and practices in both the public and private sectors.
In some cases, the discriminatory barriers may be unintentional or based on so-called neutral policies or practices; however, the effect can be discriminatory.
LULAC recognizes that removal of such practices and barriers requires more forceful action-oriented strategies and involvement on the part of its members, councils, state structures and the national office.
LULAC members at the local level must assume leadership roles in challenging not only discriminatory practices but also systemic and pronounced under representation of Hispanics.
The LULAC Civil Rights Task Force in its report outlined a number of recommendations that the LULAC National Board adopted in 1996 including:
It is LULAC's position that:
a) affirmative action be preserved, with
modifications, as a national policy.
LULAC continues to monitor the performance of the Equal Employment Opportunity Commission (EEOC) with regards to identifying, eliminating and rectifying unlawful employment discrimination against Hispanics by:
1) Ensuring that EEOC's Outreach Programs are
educating. The foregoing information on employment issues, recognizing
discrimination, complaint procedures, affirmative action, etc., is
provided to assure that members develop the additional expertise for new
Any suspected pattern of class discrimination based on national origin involving local and state governments can also be brought to the attention of the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice.
In an effort to ensure that employers provide a work environment free of national origin and sexual discrimination and/or harassment, the LULAC Civil Rights Task Force recommended the following actions, which were adopted by the national board in 1996:
a) LULAC, at all levels of the organization, be vigilant and take necessary steps, especially when Hispanics complain, to monitor and make sure employers have in place policies and procedures that do not discriminate or have the effect of discriminating against individuals on the basis of race, ethnicity, gender, disability, religious preferences, age, etc. These policies should include but not be limited to the following examples of alleged employment discrimination;
1. verbal or physical expressions of racial harassment
that often result in oppression and hate behavior (i.e., ethnic slurs,
taunting, ridiculing, etc.);
SPECIFIC EMPLOYMENT RELATED RESOURCES
The foregoing information on employment issues recognizing discrimination, complaint procedures, affirmative action, etc. is provided to assure that LULAC members develop the additional expertise for new leadership roles.
The following pages in this section of the manual will tell you about federal, city and state agencies that deal exclusively in employment by virtue of the laws that each enforces. This will include a brief description of federal, state and local employment statutes which prohibit discrimination in the workplace or cover other employment related areas.
Federal agencies that enforce laws that prohibit discrimination in the workplace include:
• U.S. Equal Employment Opportunity Commission (EEOC).
Other Federal Agencies that enforce employment related
INTRODUCTION TO EMPLOYMENT DISCRIMINATION
The two (2) theories for proving employment discrimination under Title VII are known as disparate treatment and disparate impact.
In a disparate treatment case, an employer treats a person of one race, sex, religion or national origin differently from a person of another race, another sex, another religion or another national origin. Other examples are: a person who has filed a charge, been a witness in a EEOC charge or otherwise opposed an unlawful action adversely compared with one who has not and they are similarly situated. Generally, an employer's use of neutral or objective factors in the employment decision-making process should assure fairness.
However, when an employer's practices "are fair in form, but discriminatory in operation", they may be attacked under the disparate impact theory. Adverse impact or disparate impact involves any requirement that harms one class at a greater rate than another and has no demonstrated business value (is not reasonably necessary to the safe and efficient operation of the business). Examples include: owning a car, a typing test, passing an interview, height requirement, previous income, etc. Generally, an employer's use of neutral or objective factors in the employment decision-making process should assure fairness.
The following are examples of some terms and conditions of employment which are covered under federal laws prohibiting discrimination in the workplace:
The following types of employers are covered under federal laws prohibiting discrimination in employment: Private Employers; Public and Private Employment Agencies; Unions; Apprenticeship Committees; Local, County and State Government Agencies; Public and Private Elementary and Secondary Schools; Public and Private Universities and Colleges.
1. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The U.S. Equal Employment Opportunity Commission (EEOC) was established by Title VII of the Civil Rights Act of 1964 and began operating on July 2, 1965. EEOC carries out its work at its main office in Washington, D.C. and in fifty (50) offices throughout the United States.
The mission of the EEOC is to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws that it administers and through outreach education and technical assistance.
EEOC administers the below listed federal civil rights statutes which prohibit employment discrimination:
• Title VII of the Civil Rights Act of 1964, as
amended, which prohibits discrimination against a person because of
their race, color, sex, national origin or religion;
Each of the above statutes cover both the applicant or an employee and have retaliation provisions which in effect make it a violation of the law for an employer to retaliate against an individual for filing a charge of employment discrimination, retaliate against a person who participated in a EEOC investigation (example: witness) or any person who opposes employment practices made unlawful under the statute.
THE ROLE OF EEOC AND FAIR EMPLOYMENT PRACTICE AGENCIES
Section 706 of Title VII sets forth the requirement that EEOC defer charges to local and state Fair Employment Practices Agencies (FEPA’s) and accord substantial weight to their findings and orders.
Section 14 (b) of the Age Discrimination in Employment Act (ADEA)provides that proceedings should be commenced with the state FEPA as a prerequisite to private suits under the Act. There is no Equal Pay Act (EPA) provision for deferral or referral of complaints.
Section 1601.13 ( a), (b), and (e) of EEOC' s regulations sets forth the filing procedures and timeliness considerations pursuant to a Title VII deferral relationship. Charges received by FEP A’s and EEOC are a common workload which is divided pursuant to contracts and work sharing agreements to provide for prompt resolution of charges and avoid duplication of effort by EEOC and the FEPA’s.
EEOC regulations provide the authority for EEOC to enter into Title VII, ADEA and Americans with Disabilities (ADA) work sharing agreements with FEPA's.
EEOC awards annual contracts to FEPA’s that are designated as 706 agencies and under funding principles approved by EEOC, meet certain standards of capability, performance, and compatibility with EEOC's charge investigation systems and methods.
A work sharing agreement is required as a condition of a charge resolution contract in that it generally provides for dual filing of charges and identifies certain categories of charges for which EEOC or the FEPA has initial investigation authority.
A charge of employment discrimination under Title VII, ADEA or ADA must be filed with EEOC within 180 days from the date of the alleged act of discrimination. The 180 day time period may be increased up to 300 days if the charge is also covered by local referendum or state anti-discrimination laws.
This means that if you live in a city that has a local referendum or your state has laws that prohibit discrimination in employment, you have up to 300 days in which to file your charge with EEOC.
However, if you file with your local or state agency it must be done within 180 days. If more than 180 days have passed, you then must file with EEOC within the 300 day period. Local and State FEPA’s are generally known as Human Rights Commissions, Human Relations Commissions, etc.
If you live in a city or state that has no ordinance or state laws prohibiting discrimination in employment, you must file your charge with the EEOC office that covers your area of residency within 180 days from the date of the alleged act of discrimination.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, as amended. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
• the victim as well as the harasser may be a woman or
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use and follow any employer complaint mechanism or grievance system available.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
PREGNANCY DISCRIMINATION ACT
The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job. An employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of co-workers, clients or customers.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay. If an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to submit such statements. Employers must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave. An employer may not have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth. If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby's birth.
Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as costs for other medical conditions. Pregnancy related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis.
The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions. No additional, increased or larger deductible can be imposed. If a health insurance plan excludes benefit payments for pre-existing conditions when the insured's coverage becomes effective, benefits can be denied for medical costs arising from an existing pregnancy.
NATIONAL ORIGIN DISCRIMINATION
Under Title VII of the Civil Rights act of 1964 it is unlawful to discriminate against any applicant or employee because of the individual's national origin. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group.
A rule requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule.
An employer must show a legitimate nondiscriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. The Commission's investigation will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.
Harassment on the basis of national origin is a violation of Title VII. An ethnic slur or other verbal or physical conduct because of an individual's nationality constitutes harassment if they create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities.
Employers have a responsibility to maintain a workplace free of national origin harassment. Employers may be responsible for any on-the-job harassment by their agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer.
Under certain circumstances, an employer may be responsible for the acts of non-employees who harass their employees at work.
Number of employees
• Title VII of the Civil Rights Act of 1964 and Title
I of the Americans with Disabilities Act of 1990 requires that in order
to file a charge of employment discrimination under these statutes the
covered employer have 15 or more employees.
• Individuals have a 2 year statute of limitation in
which to file a charge of employment discrimination under the Equal Pay
Act of 1963.
If there is no local or state Fair Employment Practice agency in your state, you have 180 days to file your charge with EEOC;
All of the statutes enforced by EEOC , except the Equal Pay Act of 1963, require that a charge must first be filed with EEOC before individuals are able to file a private lawsuit in court against their employer.
Any person who believes that his or her job rights have been violated has the right to file a charge of discrimination with EEOC. Also, another person, group, or agency may file a charge on behalf of someone else. A person can file a charge by visiting an EEOC office, mail a letter that describes what was done to you to include dates and why you believe discrimination occurred or you can phone and describe what has happened and why you believe that action(s) constitute discrimination.
The following are examples of questions that you will most likely be asked during your EEOC interview. It is recommended that you review each question so that you are prepared to answer each to the best of your ability. If you plan to mail EEOC a letter describing what happened to you, it is recommended that your letter should contain your response to each of the below listed question. The questions are as follows:
1. Your complete home mailing address (number, street
name, apartment number, zip code, area code and telephone number);
• Performance Evaluations
When a charge is filed, EEOC informs the employer within ten days. Charges are given the most prompt attention when the facts seem to show that it is likely that discrimination has occurred. Other charges will receive follow-up investigation, as resources allow, if more information is needed. Charges may also be closed at any time if EEOC believes that more investigation will not show that employment laws have been broken.
Charges may be chosen for EEOC's Mediation Program if both the Charging Party and the employer are interested in this option. Mediation is an alternative to an investigation and may quickly resolve a charge. Participation in the mediation program is confidential and voluntary. Charge processing will resume if mediation is not successful.
EEOC may settle a charge at any time during the investigation, if both the charging party and the employer agree. If there is no early settlement, processing will continue. After an appropriate investigation, EEOC may decide that discriminatory occurred or may close the charge because the evidence does not show discrimination. If the charge is closed, EEOC will give the charging party a "Notice of Right To Sue ".
If conciliation is not successful, EEOC may file a lawsuit against the employer. If the charging party is not satisfied with EEOC's efforts, the charging party has the right to file his or her own lawsuit against the employer within 90 days of receiving the "Notice of Right To Sue".
The remedies available for job discrimination may include hiring, reinstatement, reasonable accommodation, promotion, back pay, front pay or other actions that will make an individual “whole” (condition the person would have been in if discrimination had not occurred). Remedies also may include payment of attorney’s fees, expert witness fees and court costs.
Under most EEOC enforced laws, damages for intentional discrimination may be available for actual monetary losses, for future monetary losses, and for mental suffering and inconvenience. Punitive damages also may be sought if an employer knowingly and purposely broke the law.
EEOC PHONE NUMBERS
For assistance or more information on the EEOC field
office nearest you, call:
For free publications, contact EEOC' s Publication
Distribution Center at:
Information about the laws enforced by EEOC also can be found on the Internet at: www.eeoc.gov
2. U.S. DEPARTMENT OF JUSTICE, OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION RELATED UNFAIR EMPLOYMENT PRACTICES
Since the enactment of the Immigration Control and Reform Act of 1986 ( IRCA ), the U.S.Equal Employment Opportunity Commission has been working with the U.S. Department of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices to ensure that employer efforts comply with IRCA do not result in discrimination on the basis of national origin.
IRCA makes it unlawful for an employer to hire individuals who are not legally authorized to work in the United States. The Act also requires employers to verify the employment authorization of all individuals hired after November 6, 1986, and imposes sanctions for violation of its provisions.
IRCA also includes a nondiscrimination provision which prohibits national origin discrimination by smaller employers not covered by Title VII (requires that employer have 15 or more employees) and discrimination on the basis of citizenship status by all employers with four (4) or more employees. The nondiscrimination provisions were included in the Act because Congress recognized that enforcement of the sanctions provisions might result in employment discrimination.
For example: in order to avoid sanctions, some employers might simply refuse to hire individuals who look or sound “foreign” or have a “foreignsounding name” or employers may require employment authorization documents only from such individuals. In 1990, the General Accounting Office reported that the implementation of IRCA had indeed resulted in a widespread pattern of national origin discrimination.
Because the Immigration and Naturalization Service (INS) instituted several new initiatives to strengthen enforcement of lRCA and other immigration laws, the U.S. Department of Justice, Office of Special Counsel and the U.S. Equal Employment Opportunity Commission entered into a Memorandum of Understanding (MOU). This MOU established some very clear obligations for the EEOC with the Office of Special Counsel. Specifically, it identifies charges which raise immigration related employment discrimination issues, both for the enforcement of Title VII and charges that should be referred to the Office of Special Counsel under our MOU are appropriately referred.
The MOU is intended to prevent overlap in the filing of charges of discrimination under IRCA and Title VII and to promote efficiency in the enforcement of the two statutes.
Under the MOU, the EEOC and the Office of Special Counsel are respective agents for the receipt of charges and the satisfaction of the 180 day time limit set for filing of charges. This arrangement ensures that individuals do not lose their right to file charges of discrimination because they went to the wrong agency initially.
Charges may be filed by the person affected or a person authorized in writing to file on his or her behalf or by an officer of the INS. Charges must be in writing, under oath or affirmation and must contain the relevant charge related information.
Once a charge is filed, the Office of Special Counsel will notify the employer by certified mail within ten (10) days and will commence an investigation to determine whether there is reasonable cause to believe the charge is true and whether or not a complaint should be filed with an Administrative Law Judge.
If the Office of Special Counsel does not file a complaint with an Administrative Law Judge within 120 days, the private party (other than an INS officer) may then file a complaint with an Administrative Law Judge. Hearings are before specially trained Administrative Law Judges sitting throughout the country. Appeals are taken directly from the Administrative Law Judge to the United States Circuit Court of Appeals.
If the evidence shows that an employer has engaged in an unfair immigration related employment practice, the Administrative Law Judge shall require the employer to cease and also will terminate if the final Comptroller General's report indicates that no significant discrimination has resulted against citizens or nationals because of the implementation of the Act.
The 1990 amendment to IRCA requires the EEOC to work with the Office of Special Counsel and other agencies to educate employers, employees and the general public about the nondiscrimination provisions of IRCA.
If you have any questions related to IRCA, you can visit their web site at: www.usdoj.gov/crt/osc
You can write to:
U.S. Department of Justice-Civil Rights Division,
If you believe you've been discriminated against at your job, call right away at: 1-800-255-7688 or 1-800-237-2515 (TDD)
For questions about Title VII call EEOC at: 1-800-669-4000 or 202-275-7518 (TDD )
3. U.S. DEPARTMENT OF LABOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
The mission of the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP ) is to ensure that employers doing business with the Federal Government abide by laws and regulations requiring equal employment opportunity and affirmative action.
OFCCP has a national network of six (6) Regional Offices, each with District and Area Offices in major metropolitan centers. OFCCP administers and enforces the following equal employment opportunity laws pertaining to Federal Government contractors:
• Executive Order 11246, as amended, prohibits
discrimination in employment on the basis of race, color, gender,
religion or national origin and require Federal Government contractors
to take affirmative action to ensure that equal opportunity is provided
in all aspects of employment;
OFCCP also shares enforcement authority under Title I of the Americans with Disabilities Act of 1990 and the Immigration Reform Control Act of 1986.
OFCCP requires a contractor, as a condition of having a federal contract, to engage in a self- analysis for the purpose of discovering any barriers to equal employment opportunity. No other government agency conducts comparable systemic reviews of employers' employment practices to eliminate discrimination.
OFCCP also investigates complaints of discrimination. Under Executive Order 11246, all contractors and subcontractors with a federal contract of $ 50,000.00 or more and 50 or more employees are required to develop a written affirmative action program that is designed to ensure equal employment opportunity and set forth specific and action-oriented programs to which a contractor commits to apply every good faith effort.
OFCCP monitors compliance with these equal employment opportunity and affirmative action requirements primarily through compliance reviews, during which a OFCCP Compliance Officer examines the Federal Government contractor’s affirmative action program and investigates virtually all aspects of employment. OFCCP also investigates complaints filed by applicants or employees against Federal Government contractors alleging discrimination on the basis of race, color, sex, religion, national origin, disability or veteran's status.
Individuals who are protected by the contract compliance programs may file a complaint if they believe they have been discriminated against by federal contractors or subcontractors. A complaint may also be filed by organizations or other individuals on behalf of the person or persons affected.
If a complaint filed under Executive Order 11246, as amended, involves discrimination against only one person (applicant or employee), OFCCP will normally refer it to the Equal Employment Opportunity Commission (EEOC). Such referrals are made under a Memorandum of Understanding between the two federal agencies.
Complaints that involve groups of people or indicate patterns of discrimination are generally investigated by the OFCCP to include individual or group complaints filed under the disability and veterans laws.
Complaints of discrimination under Executive Order 11246, must be filed within 180 days from the date of the alleged discrimination unless the time for filing is extended for good cause shown.
Complaints which allege violations of Section 503 of the Rehabilitation Act of 1973, as amended, must be filed within 300 days unless the time for filing is extended for good cause shown. Extensions require approval by the OFCCP Deputy Assistant Secretary.
For assistance or more information on the nearest OFCCP office call:
1-866-4-USA-DOL or 1- 877- 889 -5627 (TTY)
The web site for the Office of Federal Contract Compliance Programs is: www.dol.gov/esa
4. FEDERAL AGENCY EMPLOYEE DISCRIMINATION COMPLAINT PROCESSING
The objective of 29 CFR (Code of Federal Regulations) Part 1614 is to promote greater administrative fairness in the investigation and consideration of federal employee EEO complaints by creating a process that is quicker and more efficient.
STATUTES COVERED BY 1614 REGULATIONS
• Title VII of the Civil Rights Act of 1964 makes it
illegal to discriminate against a federal employee or applicant based on
race, color, religion, sex or national origin.
A person who files a complaint or charge, participates in an investigation or charge, or opposes an employment practice made illegal by any of the above statutes is protected from retaliation.
FILING A COMPLAINT WITH YOUR FEDERAL AGENCY EEO
The first step for an employee or applicant who feels he or she has been discriminated against by a federal agency is to contact an equal employment opportunity counselor at the agency where the alleged discrimination took place within 45 days of the discriminatory action.
Ordinarily, counseling must be completed within 30 days. The aggrieved individual may then file a complaint of with that agency. The agency must acknowledge or reject the compliant and if it does not dismiss it, the agency must, within 180 days, conduct a complete and fair investigation.
If the complaint is one that does not contain issues that are appealable to the Merit System Protection Board (MSPB), at the conclusion of the investigation, the complainant (person who file complaint) may request either a hearing by an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) or an immediate final decision by the employing federal agency.
The AJ must process the request for a hearing, issue findings of fact and conclusions of law and order an appropriate remedy within 180 days.
After the final decision of the agency, the complainant may appeal to the Equal Employment Opportunity Commission (EEOC) within 30 days or may file in U.S. District Court within 90 days. Either party may request reconsideration by EEOC. The complainant may seek judicial review.
FILING AN APPEAL FOR A HEARING WITH THE EEOC
If a federal agency dismisses all or part of a complaint, a dissatisfied complainant may file an expedited appeal, within 30 days of notice of the dismissal, with the EEOC. The EEOC may determine that the dismissal was proper, reverse the dismissal, and remand the matter back to the federal agency for completion of the investigation.
A complainant may also appeal a final federal agency decision to the EEOC within 30 days of notice of the decision. The EEOC will examine the record and issue decisions.
If the complaint is on a matter that is appealable to the Merit Systems Protection Board (e.g., a mixed case such as a termination of a career employee), the complainant may appeal the final federal agency decision to the MSPB within 20 days of receipt or go to U.S. District Court within 30 days. The complainant may petition the EEOC for review of the MSPB decision concerning the claim of discrimination.
5. DEPARTMENT OF LABOR WAGE & HOUR DIVISION
The Wage & Hour Division of the Department of Labor enforces the below listed labor laws related to wage payment as follows:
• Fair Labor Standards Act (FLSA), which sets basic
minimum wage and overtime pay standards. Workers who are covered by the
FLSA are entitled to a minimum wage of not less than $ 5.15 an hour.
Overtime pay at a rate of not less than one and one-half times their
regular rate of pay is required after 40 hours of work in a workweek.
Certain exemptions apply to specific types of businesses or specific
types of work;
FAIR LABOR STANDARDS ACT
The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record keeping and child labor standards affecting full time and part time workers in the private sector and in Federal, State and Local governments.
Covered non-exempt workers are entitled to a minimum wage of not less than $ 5.15 an hour. Overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a work week. Wages required by FLSA are due on the regular payday for the pay period covered.
Deductions made from wages for such items as cash or merchandise shortages, employer required uniforms, and tools of the trade, are not legal to the extent that they reduce the wages of employees below the minimum rate required by FLSA or reduce the amount of overtime pay due under FLSA. The FLSA contains some exemptions from these basic standards.
Some apply to specific types of businesses; others apply to specific kinds of work. While FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which FLSA does not regulate.
For example, FLSA does not require:
The FLSA does not provide wage payment or collection procedures for an employee's usual or promised wages or commission in excess of those required by the FLSA . However, some states do have laws (check with your State Employment Agency) under which such claims (sometimes including fringe benefits) may be filed.
Also, FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old. All of these matters are for agreement between the employer and the employee or their authorized representatives.
WHO IS COVERED
All employees of certain enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person, are covered by FLSA.
A covered enterprise is the related activities performed through unified operation or common contract by any person or persons for a common business purpose and;
• whose annual gross volume of sales made or business
done is not less than $ 500,000.00 (exclusive of excise taxes at the
retail level that are separately stated); or
RECORD KEEPING REQUIREMENTS
FLSA requires employers to keep records on wages, hours and other items, as specified in Department of Labor record keeping regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used.
Wage & Hour’s enforcement of FLSA is carried out by investigators stationed across the U.S. Wage & Hour’s authorized representatives, they conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine compliance with the law.
Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.
It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.
Willful violations may be prosecuted criminally and the violator fined up to $ 10,000.00. A second conviction may result in imprisonment. Listed below are methods which FLSA provides for recovering unpaid minimum and/or overtime pay:
• Wage & Hour may supervise payment of back wages.
An employee may not bring suit if he or she has been paid back wages under the supervision of Wage & Hour or if the Secretary of Labor has already filed suit to recover the wages. A 2 year statute of limitation applies to the recovery of back pay, except in the case of willful violations, in which case a 3 year statute applies.
EMPLOYERS COVERED BY THE FAMILY AND MEDICAL LEAVE ACT
An employer covered by FMLA is any person engaged in commerce or in an industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Employer's covered by FMLA also include any person acting, directly or indirectly, in the interest of a covered employer to any employees of the employer, any successor in interest of a covered employer, and any public agency. Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers.
EMPLOYEES COVERED BY THE FAMILY AND MEDICAL LEAVE ACT
An eligible employee is an employee of a covered employer who has been employed by the employer for at least 12 months, and has been employed for at least 1,250 hours of service during the 12 month period immediately preceding the commencement of the leave, and is employed at a work site where 50 or more employees are employed by the employer within 75 miles of that work site.
The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g. worker’s compensation, group health plan benefits, etc.), the week counts as a week of employment
MAXIMUM LEAVE TIME UNDER THE FAMILY AND MEDICAL LEAVE ACT
An eligible employee's FMLA leave entitlement is limited to a total of 12 work weeks of leave during any 12-month period for anyone, or more, of the following reasons:
1) birth of the employee's son or daughter, and to
care for the newborn child;
An employer is permitted to choose anyone of the following methods for determining the "12 month period" in which the 12 weeks of leave entitlement occurs:
1) the calendar year;
Under method 1 and 2 above, an employee could, therefore take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under method 3, an employee could be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12 month period would begin the first time FMLA leave is taken after completion of any previous 12 month period.
As regards the rolling 12 month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 week which has not been used during the immediate preceding 12 months.
Eligible employees seeking to use FMLA leave may be required to provide:
• 30 -day advance notice of the need to take FMLA
leave when the need is foreseeable;
FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any rights provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.
An eligible employee who is denied FMLA leave can initiate an action (complaint) not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. The Secretary shall receive, investigates and attempts to resolve complaints of violation.
If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance. Further, an employee is not required to file a complaint with the Wage & Hour Division prior to bringing such action.
Employers are not required by federal law to give
former employees their final paycheck immediately. Some states, however,
may require immediate payment. If the regular payday for the last pay
period an employee worked has passed and the employee has not been paid,
contact the Department of Labor (DOL) Office of Wage & Hour Division or
Your local Telephone Directory will list the address and phone number of the State Employment Agency and of the Wage & Hour Division (if the Department of Labor has such an office in your city).
If there is no DOL agency in your city, you can contact the national office of DOL at:
1-866- 4-USA-DOL or TTY: 1-877-889-5627
Mailing address for the national office:
6. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY & HEALTH (OSHA)
The mission of the Occupational Safety & Health Administration (OSHA) is to save lives, prevent injuries and protect the health of America's workers. To accomplish this, federal and state governments must work in partnership with the more than 100 million working men and women and their six and a half million employers who are covered by the Occupational Safety & Health Administration Act of 1970.
OSHA and its state partners have approximately 2,100 inspectors, plus complaint discrimination investigators, engineers, physicians, educators, standards writers, and other technical and support personnel spread over more than 200 offices throughout the country. This staff establishes protective standards, enforces those standards and reaches out to employers and employees through technical assistance and consultation programs.
The Occupational Safety & Health Act requires employers to provide a safe and healthful workplace free of recognized hazards and to follow OSHA standards. Employers' responsibilities also include providing training, medical examinations and record keeping.
OSHA issues standards or rules to protect workers against many hazards on the job. These standards limit the amount of hazardous chemicals workers can be exposed to, require the use of certain safety practices and equipment, and requires employers to monitor hazards and maintain records of workplace injuries and illnesses.
Employers can be cited and fined if they do not comply with OSHA standards. It is also possible for an employer to be cited under OSHA's General Duty Clause, which requires employers to keep their workplaces free of serious recognized hazards. This clause is generally cited when no OSHA standard applies to the hazard.
OSHA requires workers to comply with all safety and health standards that only apply to their actions on the job. Employees should:
• Read the OSHA poster; Follow the employer's safety
and health rules and wear or use all required gear and equipment;
If you believe working conditions are unsafe or unhealthful, it is recommended that you bring the conditions to your employer's attention, if possible. Your employer may want to contact OSHA or your state consultation service in order to gather information about how to improve working conditions.
You may file a complaint with OSHA, if you believe there may be a violation of an OSHA standard or a serious safety or health hazard at work. You may request that your name not be reveled to your employer. You can file a complaint on: www.osha.gov, in writing or by telephone with the nearest OSHA Area Office. You may also call our office and speak with an OSHA compliance officer about a hazard, violation, or the process for filing a complaint.
The OSHA Act and other laws protect workers who complain to their employers, union, OSHA or other government agencies about unsafe or unhealthful conditions in the workplace or environmental problems.
You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you have exercised any right afforded to you under the OSHA Act. Help is available from OSHA for Whistleblowers. But complaints about discrimination must be filed as soon as possible within 30 days of the alleged reprisal for most complaints.
Employees who refuse to comply with occupational safety and health standards or valid safety rules implemented by the employer in furtherance of the Act are not exercising any rights afforded by the Act.
Disciplinary measures taken by employers solely in response to employee refusal to comply with appropriate safety rules and regulations, will not ordinarily be regarded as discriminatory action prohibited by section 11 (c). This situation should be distinguished from refusals to work.
There is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be volatile of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the work place pursuant to section 8 (f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health.
Under such circumstances, therefore, an employer would not ordinarily be in violation of the Act by taking action to discipline an employee for refusing to perform normal job duties because of alleged safety or health hazards.
However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from hazardous conditions at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination.
The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels.
In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.
If there is an emergency or the hazard is immediately life-threatening, call your local OSHA Regional Office or 1-800-321-OSHA.
Mailing address for the national office is:
Web site address is: www.osha.gov OSHA publishes a variety of publications on a range of subjects. The agency also offers free software advisors to help employers comply with OSHA standards. Refer to OSHA Publications for a complete listing of agency printed materials or to order publications online.
7. NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board (NLRB) is an independent Federal agency created in 1935 to enforce the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector.
The statute guarantees the right of employees to organize and to bargain collectively with their employers or to refrain from all such activity. Generally applying to all employees involved in interstate commerce other than airlines, railroads, agriculture and government- the Act implements the national labor policy of assuring free choice and encouraging collective bargaining as a means of maintaining industrial peace.
In its statutory assignment, the NLRB has two (2) principal functions:
1) to determine, through secret ballot elections, the
free democratic choice by employees whether they wish to be represented
by a union in dealing with their employers and if so , by which union
NLRB has two (2) major, separate components. The Board itself has Five (5) Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5 year terms, with Senate consent, the term of one member expiring each year.
The General Counsel, appointed by the President to a 4-year term with Senate consent, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.
Each Regional office of the NLRB is headed by a Regional Director who is responsible for making the initial determination in cases arising within the geographical area served by the region.
When an unfair labor practice (ULP) charge is filed, the appropriate field office conducts an investigation to determine whether there is reasonable cause to believe the Act has been violated. If the Regional Director determines that the charge lacks merit, it will dismiss the charge unless the charging party decides to withdraw the charge. A dismissal by a NLRB Regional Director may be appealed to the General Counsel's office in Washington, D.C.
If the Regional Director finds reasonable cause to believe a violation of the law has been committed, the region seeks a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB Administrative Law Judge. The Judge issues a written decision that may be appealed to the five- Member Board in Washington for a final agency determination.
The Board's decision is subject to review in a U.S. Court of Appeals. Depending upon the nature of the case, the General Counsel's goal is to complete the investigation and, where further proceedings are warranted, issue complaints if settlement is not reached within 7 to 15 weeks from the filing of the charge. Of the total ULP charges filed each year (about 30,000 ), approximately one-third are found to have merit of which 90% are settled.
Section 10 (j) of the Act empowers the NLRB to petition a federal district court for an injunction to temporarily prevent ULPs by employers or unions and to restore the status quo, pending the full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of ULPs, would frustrate the Act's remedial objectives. Under NLRB procedures, after deciding to issue an ULP complaint, the General Counsel may request authorization from the Board to seek injunctive relief.
The Board votes on the General Counsel's request and, if a majority votes to authorize injunctive proceedings, the General Counsel, through his Regional staff, files the case with an appropriate federal District Court.
In addition, Section 10 (I) of the Act requires the Board to seek a temporary federal court injunction against certain forms of union misconduct, primarily involving "secondary boycotts "and" recognized picketing". Finally, under Section 10(e), the Board may ask a federal court of appeals to enjoin conduct that the Board has found to be unlawful.
Some things to expect when a petition is filed with NLRB :
• the parties will receive a copy of the petition;
Mailing address for NLRB is:
National Labor Relations Board
Web site address is: www.nlrb.gov/facts
The Director of Information can be reached at:
If NLRB has an office in your city, the telephone directory (see Federal Government blue pages) for a local office telephone listing.
8. EMPLOYMENT AT-WILL STATE LAWS
Are you one of the 60 million workers subject to Employment - At - Will? Imagine that you are injured in a work related accident and you need a few days to recover. You file for Worker’s Compensation Benefits and figure that when your back in shape you can return to work. The next thing you know you’re fired! What do you do? You hire a lawyer, believing that in America an employer should not be able to fire you for exercising your legal right to file a workers compensation claim. As the court issues its decision, you are in disbelief. The Court rules that you have no legal standing and cannot sue for the employer’s retaliatory firing.
If you think you are exempt from the whims of your company or boss, think again. Most Americans do not realize that unless you work for the government or belong to a union, under the laws of nearly all the states you are considered an “at-will-employee” and it is perfectly legal for your employer to fire you for no reason at all!!
According to the American Civil Liberties Union, two million “at-will-employees” are fired every year. Of those two million workers, an estimated 200,000 are fired for no reason. How can that be? Hard working, on time, conscientious employees fired for no reason?
Of course there are exceptions. You may not be fired because of your race, color, sex, national origin, religion, age, disability or for trying to organize a union in your workplace. In addition, some states provide moderate protections such as wrongful termination due to whistle-blowing. However, the only way to truly protect yourself is to join a union and work under a legally recognized contract.
State laws are in a constant state of flux. Before relying on the text of any state Right to Work statute, you should check the most current edition of your state laws.
The National Institute for Labor Relations Research can provide you with a copy of the most recent edition of your state laws.
Mailing address for the Institute is:
Web site is: http://www.nilrr.org/
The Institute currently shows the following states as Right-to-Work (at-will): Alabama, Arizona, Arkansas, Florida, Georgia, Guam, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
9. STATE EMPLOYEE JOB RELATED INJURY COMPENSATION PROGRAMS
The information which follows is brief but yet covers the topic of work related injuries and as an example follows the State of Texas Worker’s Compensation Program. It is significant to note that all private employees work related injury benefit programs are administered by a state agency. Further, is the matter that each state has its own rules and regulations governing such things as eligibility requirements, coverage period, maximum monetary benefits, etc..
Your local state employment agency can direct you to the location site address and phone number to include the name of your state agency that handles claims related to on the job injuries in your respect state of residence. Worker’s Compensation is a state regulated insurance program that pays medical bills and replaces part of lost wages if an employee has a compensable work related injury, disease or illness and their employer has worker’s compensation insurance or is certified to self-insure.
Example: The Texas Worker’s Compensation Commission (TWCC) is a state agency that monitors and regulates the delivery of benefits to injured employees and eligible family members of employees whose death results from a compensable injury. The Commission also helps resolve disagreements about claims and provides workplace health and safety training and education services. TWCC provides the below listed four (4) types of benefits :
• Medical Benefits: Employer’s insurance company pays
for reasonable and necessary medical care to treat a work related injury
directly to the doctor or health professional who provides treatment and
are available for the remainder of the employee’s life without any
specific time limit;
Employee responsibilities and rights under the State of Texas Worker’s Compensation Program are as follows:
• You have the responsibility to tell or write your
employer or any supervisor within 30 days of the date you were injured
and /or of the date you first knew your illness might be work related
Note: most companies have policies that give employees less than 30 days
to report an injury or illness. It is recommended that you review your
employer’s policy concerning the time period and give notice as per
policy even though the State of Texas program gives an employee 30 days.
It is further recommended that employees provide written vs. oral notice
of injury or illness to appropriate company officials.
Please refer to blue pages of your local telephone book under state agencies for the address and phone number of the agency in your state that administers your state’s work related employee injury program. The toll free number for the state of Texas Worker’s Compensation Benefit Program is: 1-800-252-7031
Visit the web site at: www.twcc.state.tx.us