2. Know your style: what
laws apply to your
business and impact your
employment decisions

3. What it Does: prohibits employment discrimination based on race,
color, religion, sex and national origin.
An Employer under Title VII is:
● a person engaged in an industry affecting commerce
● fifteen (15) or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year,
and any agent of such a person
● does not include US government, Indian tribe, a bona fide
private membership club (other than a labor organization) which is
exempt from taxation under the Internal Revenue Code of 1954
Title VII

4. What it Does: prohibits sex-based wage discrimination between
men and women in the same establishment who are performing under
similar working conditions.
An Employer under EPA is:
engaged in commerce or in the production of goods for commerce
(FLSA)
Does not prohibit unequal pay based on a bona fide: (i) a
seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential based
on any other factor other than sex.
EPA –The Equal Pay Act of 1963

5. What it Does: pprohibits employment discrimination against persons 40 years of
age or older.
An Employer under ADEA is:
● twenty (20) or more employees engaged in an industry affecting commerce
for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year.
Does Not Prohibit Consideration of Age when: age is a bona fide occupational
qualification reasonably necessary to the normal operation of the particular
business, or where the differentiation is based on reasonable factors other than
age, or where such practices involve an employee in a workplace in a foreign
country, and compliance with such subsections would cause such employer, or
a corporation controlled by such employer, to violate the laws of the country in
which such workplace is located.
ADEA

6. What it Does: protects benefits and provides safeguards in pension and
severance for persons 40 years of age or older.
An Employer under OWBPA is:
● an employer under ADEA
Employee Severance Packages:
No waiver is valid unless:
● knowing and voluntary.
● refers specifically to ADEA and OWBPA
● the individual does not waive rights or claims that may arise after the
date of execution
● is in exchange for additional consideration
● advises individual in writing to consult with an attorney prior to executing
the agreement
● permits 21 days within which to consider the agreement; or if occurs in
connection with an RIF, 45 days
● provides that for 7 days revocation period
Older Workers Benefits
Protection Act

7. PDA—Pregnancy Discrimination Act
What it Does: prohibits discrimination because of a pregnancy-related
condition, or because of the prejudices of co-workers, clients, or
customers
An Employer under PDA is:
● an employer under Title VII (PDA amends Title VII)
Requires Equal Treatment in Employment: (no need to give more, but
must be treated same)
Insurance: Any health insurance provided by an employer must cover
expenses for pregnancy-related conditions on the same basis as
costs for other medical conditions. An employer need not provide
health insurance for expenses arising from abortion, except where
the life of the mother is endangered.

8. ADA—Americans With Disabilities Act
What it Does: prohibits employment discrimination against qualified
individuals with disabilities.
An Employer under ADA is:
● engaged in an industry affecting commerce
● 15 or more employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year, and any agent
of such person
● does not include a bona fide private membership club (other than a
labor organization) that is exempt from taxation under the Internal
Revenue Code of 1986 and US Gov

9. Disability
The term ``disability'' means, with respect to an individual-
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
ADA—Americans With Disabilities
Act

10. Qualified individual with a disability: means an individual with a
disability who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual
holds or desires. For the purposes of this subchapter, consideration shall be
given to the employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered
evidence of the essential functions of the job

11. Reasonable accommodation. –
The term ``reasonable accommodation'' may include-
(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities.

12. Undue hardship. -
In general. - The term ``undue hardship'' means an action requiring significant difficulty
or expense, when considered in light of:
(i) the nature and cost of the accommodation needed
(ii) the overall financial resources of the facility or facilities involved in the provision of
the reasonable accommodation; the number of persons employed at such facility;
the effect on expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business
of a covered entity with respect to the number of its employees; the number, type,
and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity; the geographic
separateness, administrative, or fiscal relationship of the facility or facilities in
question to the coveredentity.

13. FMLA – Family Medical Leave Act
What it Does: Permits employees who have worked for the employer for 12
months and for 1,250 hours within the previous twelve months to take up
to 12 total workweeks of unpaid leave during any 12 month period for the
following:
birth of a child and placement of a child with employee for
adoption/foster care;
to care for an other that is a spouse, son, daughter or parent of
employee with a serious health condition; or
a serious health condition that makes an employee unable to perform
the functions of his or her position
An Employer under FMLA is:
● employs 50 or more employees during previous 12 months
Requires an Employer to:
● return employee to same or equivalent position and pay and benefits post-
leave

14. What it Does: Governs minimum wages, pay standards, overtime
An Employer under FLSA is:
● has workers engaged in interstate commerce
● a covered enterprise is the related activities performed through unified
operation or common control 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 and incudes hospital, nursing home, rehabs and similar
entities; schools of all types (whether operated for profit or not for profit); or a
public agency
● even if not covered enterprise if engaged in interstate commerce or in
the production of goods for interstate commerce, or in any closely-related process or
occupation directly essential to such production. So consider as covered any client
who touches or effects interstate commerce
● domestic service workers such as day workers, housekeepers, chauffeurs,
cooks, or full-time babysitters are covered if: (1) their cash wages from one employer
in calendar year 2007 are at least $1,500 (this calendar year threshold is adjusted by
the Social Security Administration each year); or (2) they work a total of more than 8
hours a week for one or more employers.
FAIR LABOR STANDARDS
ACT

15. COBRA
The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives workers
and their families who lose their health benefits the right to choose to continue
group health benefits provided by their group health plan for limited periods of
time under certain circumstances such as voluntary or involuntary job loss,
reduction in the hours worked, transition between jobs, death, divorce, and
other life events. Qualified individuals may be required to pay the entire
premium for coverage up to 102 percent of the cost to the plan.
COBRA generally requires that group health plans sponsored by employers
with 20 or more employees in the prior year offer employees and their families
the opportunity for a temporary extension of health coverage (called
continuation coverage) in certain instances where coverage under the plan
would otherwise end.
COBRA outlines how employees and family members may elect continuation
coverage. It also requires employers and plans to provide notice.

16. HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) provides
rights and protections for participants and beneficiaries in group health
plans. HIPAA includes protections for coverage under group health plans
that limit exclusions for preexisting conditions; prohibit discrimination
against employees and dependents based on their health status; and allow
a special opportunity to enroll in a new plan to individuals in certain
circumstances. HIPAA may also give you a right to purchase individual
coverage if you have no group health plan coverage available, and have
exhausted COBRA or other continuation coverage.
HIPAA AUTHORIZATIONS

17. SOX – Sarbanes Oxley Act of 2002
What it Does: Enacted after the Enron and WorldCom scandal. It: created
the Public Accounting Oversight Board to regulate accounting firms; has
strict procedures for officers and auditors certifying corporate SEC
documents; contains whistleblower provisions; and document retention
provisions
Employer under SOX: Applies to publicly traded companies, accounting
firms and maybe private companies (see detailed paper which has been
e mailed to all of you)‑

18. Time to clean your closet:
what to buy & what to
discard—record making &
record keeping

19. WhAT you need to keep:
records you will already
have
http://www.dol.gov/elaws/FirstStepRRN.htm

20. Eeoc rEQUIREMENTS
When a Charge Has Been Filed
When an EEOC charge has been filed against your company, you should retain
personnel or employment records relating to the issues under investigation as a
result of the charge, including those related to the charging party or other
persons alleged to be aggrieved and to all other employees holding or seeking
positions similar to that held or sought by the affected individual(s).
Once a charge is filed, these records must be kept until the final disposition of
the charge or any lawsuit based on the charge. When a charge is not resolved
after investigation, and the charging party has received a notice of right to sue,
"final disposition" means the date of expiration of the 90-day statutory period
within which the aggrieved person may bring suit or, where suit is brought by the
charging party or the EEOC, the date on which the litigation is terminated,
including any appeals.

21. Eeoc rEQUIREMENTS
 All Personnel and Employment Records made or used (including, but not
limited to, requests for reasonable accommodation, application forms
submitted by applicants, and records dealing with hiring, promotion,
demotion, transfer, lay-off or termination, rates of pay, compensation, tenure,
selection for training or apprenticeship, or other terms of employment) must
be preserved for the following periods:
Private employers must retain such records for one year from the date of
making the record or the personnel action involved, whichever occurs
later, but in the case of involuntary termination of an employee, they must
retain the terminated employee’s personnel or employment records for
one year from the date of termination.
Educational Institutions and State and Local Governments must retain
such records for two years from the date of the making of the record or the
personnel action involved, whichever occurs later, but in the case of
involuntary termination of an employee, they must retain the terminated
employee’s personnel or employment records for two years from the date
of termination.

22. Fair Labor Standards Act
(FLSA):
 What Records Are Required: The Act requires no particular form for the records, but does
require that the records include certain identifying information about the employee and
data about the hours worked and the wages earned. The law requires this information to
be accurate. The following is a listing of the basic records that an employer must
maintain:
 Employee's full name and social security number.
 Address, including zip code.
 Birth date, if younger than 19.
 Sex and occupation. Time and day of week when employee's workweek begins.
 Hours worked each day.
 Total hours worked each workweek.
 Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week",
"piecework")
 Regular hourly pay rate.
 Total daily or weekly straight-time earnings.
 Total overtime earnings for the workweek.
 All additions to or deductions from the employee's wages.
 Total wages paid each pay period.
 Date of payment and the pay period covered by the payment.

23. Fair Labor Standards
Act (FLSA):
 How Long: Keep payroll records for three years from date of
making of record; records related to terminated employees
for three years after termination date.
 Equal Pay Act:
 payroll records for three years
 employers must keep for at least two years all records
(including wage rates, job evaluations, seniority and merit
systems, and collective bargaining agreements) that explain
the basis for paying different wages to employees of
opposite sexes in the same establishment.
 These requirements apply to all employers covered by
Federal anti-discrimination laws, regardless of whether a
charge has been filed against the employer.

24. Sarbanes-oxley
What does the Act do?
Adds new criminal penalties for obstruction
of justice by destroying or altering records
Requires corporate executives to certify
the accuracy of reported financial
information
Requires registration with Board of public
accounting firms

25. Sarbanes-oxley
Who Is Affected?
Any publicly-traded company
Any public accounting firm that
provides auditing services for publicly-
traded companies
 Independent contractor to public accounting
firm
Any company or agency is subject to
the obstruction of justice sections
Any individual ...

26. Sarbanes-oxley
Corporate Responsibility §301?
Audit Committee Responsibilities -
Complaints audit committee shall establish
procedures for
 (A) the receipt, retention, and treatment of
complaints received by the issuer regarding
accounting, internal accounting controls, or
auditing matters; and
 (B) the confidential, anonymous submission by
employees of the issuer of concerns regarding
questionable accounting or auditing matters.

27. Sarbanes-oxley
Corporate Responsibility §302?
Certification of annual or quarterly report
required by
 principal executive officer or officers and
the principal financial officer or officers, or
persons performing similar functions
Certifies to 6 specific points outlined in
§302.

28. Sarbanes-oxley
Corporate Responsibility §403?
Disclosures of Officers, directors and
principal stockholders
 Electronic filing requirement with the SEC
 Must also be posted on the corporate
website no later than end of business day
following the filing.
 “Rule 16a-3(k) requires each form to remain
accessible on the issuer's website for at
least a 12-month period.”

29. Sarbanes-oxley
Corporate Responsibility §404?
Annual reports must contain:
 an internal control report, which shall
 state the responsibility of management for
establishing and maintaining an adequate
internal control structure and procedures for
financial reporting; and
 contain an assessment, as of the end of the
most recent fiscal year of the issuer, of the
effectiveness of the internal control structure
and procedures of the issuer for financial
reporting.

30. Sarbanes-oxley
Sec. 1519 – Destruction, Alteration or
Falsification of RecordsAnnual reports
must contain:
 Whoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false entry in
any record, document or tangible object with the
intent to impede, obstruct or influence the
investigation or proper administration of any matter
within the jurisdiction of any department or agency of
the US or any case filed under Title 11, or in relation to
or contemplation of any such matter or case, shall be
fined under this title, imprisoned not more than 20
years, or both.

31. Sarbanes-oxley
SEC Final Rule: 33-3180 Retention of
Records Relevant to Audits and
Reviews:
http://www.sec.gov/rules/final/33-8180.htm
7 years
Documents that do not fall within the Rule:
superseded drafts of memoranda, financial statements or
regulatory filings, notes on superseded drafts of memoranda, financial
statements or regulatory filings that reflect incomplete or preliminary
thinking, previous copies of workpapers that have been corrected for
typographical errors due to training of new employees, dupclicates of
documents or VOICE MAIL MESSAGES

32. When you Need to make
records: documenting
employee performance
Why?
Consistency
To Support your decisions
To lend credibility to your decisions
Expectations
Litigation

33. When you Need to make
records: investigations
 Why to Investigate: Reasons
 Required by Law
Title VII
Sarbanes-Oxley (Whistleblower)
Safety (OSHA, Workers Compensation)
 Collective Bargaining:
to prove “just cause”
 Audits
 Employee Morale

34. When to Investigate
 Immediately give
attention to
complaint
 Immediately assess
severity of
complaint and
decide what if any
interim measures
must be taken
 Reasonably
thereafter begin
investigation

35. When to Investigate? Not Until
You Do This:
1.Choose an
investigator
2. Gather Your
Evidence
3. Review legal issues
4. Pick a location

36. Who to Interview?
 Complaining
Employee (Obviously)
 Accused
 Employee Witnesses
(if necessary)
 Outside witnesses

37. How To Conduct Investigation-
Complainant Interview—DO:
 Close your door
 Be courteous but not sympathetic
 Identify the company policies involved and
make clear that company is committed to
policy
 State that company will not retaliate or tolerate
retaliatory behavior
 Take Notes
 Have employee write in own words the
complaint – Give blank paper then and there
—or note employee refused

38. How To Conduct Investigation-
Complainant Interview—DO:
 Ask questions about incident
(who, what, where, when, why how?)
Did employee tell anyone else?
Who witnessed it?
Was anyone else an alleged victim?
 Ask employee “what do you want?
What are your expectations?”
 Ask employee: Is there anything else
we should know?
 Tell employee not to discuss with
coworkers during investigation
 Tell employee to report new
information immediately

39. How To Conduct Investigation-
Complainant Interview—DO NOT:
 Promise investigation will remain
confidential
 Refuse to allow union employee to have
representation
 Return employee to unsafe situation
 Readily take resignation, but rather
explain procedures and consider
reassignment
 Don’t pass judgment
 Make promises regarding specific time
frame

40. How To Conduct Investigation-
Accused Interview—DO:
 Be objective, not judgmental
 Close door, but do not lock it (false imprisonment)
 Inform Accused of policies, stand by policies
 State to Accused Allegations
 Give Accused time to rebut
 Ask Questions (who, what,. . .)
 Take Notes
 Inform Accused of legal consequences if suit
filed
 Reiterate Retaliation policy

41. How To Conduct Investigation-
Accused Interview—DO NOT:
 Get drawn into a power struggle
 Accuse the Accused of any criminal
conduct
 Make any assurances other than that
policies will be followed
 Allow Accused to Act immediately on any
pre-planned actions with regard to
complainant’s employment
 Pass judgment

42. How To Conduct Investigation-
Witness Interview—DO:
 Assure Witness of no-retaliation policy
 Start out vague
 Use names, not Accused or Complainant
 If need be, ask about specific instances of
conduct
 Take Notes
 Explain need to be discreet
 Invite more information if it becomes
available

43. How to Decide the
Investigation?
 Follow up with interviewees if need clarification
 Consider all facts and circumstances
 Follow policies and procedures
 Keep record of investigation
 Be fair and objective and look to past
precedents in company with similar fact
situations
 Seek to bring closure to the issue

44. What to do After the
Investigation
 Meet with the accused and discuss
the findings and action
 Meet with the complainant and
discuss the findings and action
 Prepare necessary paperwork and
maintain investigatory file

45. HOT TREND ALERT:
FLSA
 INDEPENDENT
CONTRACTOR V.
EMPLOYEE
 Social Media
 Recent Decisions

46. IV. Getting The Right Information From Your Client To
Render Advice
A. Identify the issue (termination/sexual arassment/discrimination/general
complaint)
B. Identify the players
C. Identify the issues (statements v. interviews)
D. Identify what state/federal agencies you may be dealing with
E. Identify the defenses
F. Determine your course of action