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Finding Talent and Labor Laws
               March 7, 2012

       Presented by Grace H. Lee, Esq.




1
Hiring New Employees
       Anti-Discrimination Laws: Federal and state laws
        prohibit hiring procedures which discriminate on the basis
        of protected characteristics
       Applies to discrimination in:
        hiring, promotion, discharge, pay, fringe benefits, job
        training, classification, referral, and other aspects of
        employment, on the basis of various protected
        characteristics.




2
Protected Categories

    Federal:                     D.C. Adds:
       Sex                         Sexual Orientation
       Race                        Marital Status
       Age                         Matriculation
       Religion                    Family Responsibilities

       National Origin             Familial Status
                                    Gender Identity
       Color
                                    Personal Appearance
       Disability
                                    Political Affiliation
       Veterans Status
                                    Genetic Information
       Pregnancy                   Other Categories


3
Hiring New Employees
       Hiring process
         – Consistency is key (application, interview, background
           check, etc).
       Pre-Employment Inquiries
         – Interviewing Do‟s and Don'ts (illegal questions)
         – Testing (ensure consistency)
       ADAAA
         – Respond to request for reasonable accommodation
       Background Checks (Credit & Criminal)
         – Can be done (and, in some cases, it is mandatory)
         – Must comply with the Fair Credit Reporting Act (FCRA)
           and applicable state laws
         – Must notify the applicant
         – Offense must be job related to be used as basis of
           employment decision
4
Hiring: The At-Will Doctrine
       The “at-will” employment relationship means you may terminate for any
        reason or no reason at any time, with or without notice.
       Caveat: You cannot terminate an at-will employee for an illegal reason
        (i.e. discrimination, retaliation) or in a manner contrary to an agreement.
       Offer letter v. employment agreement
         –   Offer Letter
               • Important if you have weak or non-existent employment policies or employee
                   manual.
               • Can be used to clarify issues raised during the recruitment process and set
                   expectations from both parties.
               • Typically not for a term and should contain affirmation of at-will status.
         –   Employment Contract
               • Typically at odds with the at-will concept, and it should be drafted as such.
               • Used as a recruitment and retention tool.
               • Used to protect highly sensitive and proprietary information through the use of
                   restrictive covenants.
               • Normally recommended only for executives, professionals or confidential (i.e.,
                   IT) positions.
       Ensure consistency with employee handbook


5
Hiring: Immigration Compliance
       Form I-9
        – Verify that employees are legally authorized to work in the U.S.
            • Does not apply to volunteers
            • Does not apply to independent contractors
        – Refrain from discrimination against individuals based on
          national origin, race, or citizenship
        – Must complete Form I-9 within three business days of the first
          day of work for pay
        – Begin I-9 process after you offer the job and the employee
          accepts
        – Social security number is voluntary
        – Do not ask request specific documents – let the employee pick
          from list of options on the form
        – Maintain for three years after the date of hire, OR one year after
          the date of termination, whichever is later
        – Keep I-9 separate from other personnel file documents


6
Wage & Hour and Leave Issues

       The Law:
         – The Family & Medical Leave Act of 1993 (FMLA)
         – The Fair Labor Standards Act
       Exempt/Non-Exempt Status
       Independent Contractors
       Alternative Work Arrangements (e.g. flextime)
         – Consistency is key. Employees must have equal access to
           work arrangements, to avoid discrimination claims
             • Create policies (e.g. Telecommuting Policy and Agreement)




7
Family and Medical Leave Act

       Federal law and District of Columbia
       Updated regulations for Federal FMLA and DC FMLA
       Federal FMLA provides up to 12 weeks of family and medical leave
        per 12 month period
       Federal FMLA provides up to 26 weeks of military family leave in a
        12 month period
       DC FMLA provides up to 16 weeks of family leave AND 16 weeks of
        medical leave in a 24-month period
       Federal and D.C. FMLA run concurrently, if applicable
       Should comply with the law that provides employee with greater
        benefit




8
FMLA Coverage

       Federal
         – Must be employed by an employer with 50 or more
           employees in a 75 mile radius of the place the employee
           works
         – Employee must have worked at least 1,250 hours during
           the previous 12 months prior to the request for leave
       DC
         – Employer must have at least 20 employees
         – Employee must have worked at least 1,000 hours in the
           12-month period immediately preceding the request for
           leave
         – Employment must be without a break in service




9
FMLA Leave Benefits
        Job Security
          – Must hold position
          – Employee entitled to return to same or equivalent job
          – May fill position temporarily until employee returns
          – Can eliminate job if would have done so even if
             employee not out on leave
        Unpaid leave
        Benefits
          – Employer must continue to receive benefits during the
             leave
          – Health insurance must continue as if the employee was
             still working
        No loss of benefit or seniority accrued prior to the start of the
         employee‟s leave




10
Federal and DC FMLA
                   Reasons for Leave
        Birth of a child or to care for a newborn child;
        Placement of a child with the employee for adoption or
         foster care, or placement of a child with the employee
         for whom the employee permanently assumes and
         discharges parental responsibility;
        Employee is needed to care for a “family member” with
         a serious health condition;
        Employee‟s own „serious health condition‟ that makes
         the employee unable to perform the functions of the
         job



11
Military Leave Entitlement
        Under Federal Military FMLA an eligible employee may take
         leave for the following reasons:
           – To address certain qualifying exigencies arising out of
             the fact that the spouse, or a son, daughter or parent of
             the employee is on „covered active duty‟ (or has been
             notified of an impending call or order to covered active
             duty) in the Armed Forces
               • Up to 12 workweeks of leave in a 12-month period
                  (rolling back)
           – To address military caregiver leave to care for a son,
             daughter, parent, or next of kin who is an injured or ill
             servicemember or veteran
               • Up to 26 workweeks of leave in a 12-month period
                  (rolling forward)




12
DC Accrued Sick and Safe Leave Act

         ASSLA provides paid sick leave for absences due to the employee‟s
          or family member's medical condition, domestic violence or sexual
          abuse
         Up to seven days of paid leave per year
         Reasons for leave
           – Absence resulting from physical or mental illness, injury, or
             medical condition of the employee
           – Absence resulting from obtaining professional medical diagnosis
             or care, preventative medical care (must make reasonable
             efforts to schedule leave so it does not unduly disrupt school‟s
             operations)
           – Absence for purpose for caring for a child, parents, spouse,
             domestic partner, or any other family member who has any of
             the conditions or needs for diagnosis or care described above
           – Absence if the employee or employee‟s family member is a
             victim of stalking, domestic violence, or sexual abuse




13
Wage and Hour
        Federal law - Fair Labor Standards Act (FLSA)
        DC same as Federal for exempt v. nonexempt
        Two Classifications
          – Overtime eligible (non-exempt)
             • Entitled to overtime pay (one and half times the
               regular rate of pay) for hours worked over forty
               in a workweek
             • Paid hourly
             • Salaried employees can be overtime eligible
          – Non-Overtime eligible (exempt)
             • Paid the same amount regardless of number of
               hours worked
             • Must meet certain requirements to be exempt
               from overtime pay


14
Employee or Independent Contractor

        Legal Tests (no more 20-factor test)
         –   Integral part of business
         –   Permanency of relationship
         –   Who supplies facilities and equipment
         –   Opportunities for profit and loss
         –   Provides this work for other employers
         –   Managed by company employees or
             independent
        Independent Contractor Agreement




15
Employment Separation

        Separation and Release Agreements (Severance)
         – Necessary in some circumstances
            • Troublesome termination
            • Protected category (i.e. race, disability)
            • High salary
            • High profile
        Confer with counsel to ensure that the agreements
         properly protect the company and are legally
         enforceable.



16
Employment Separation

        Separation and Release Agreements
         – Typical provisions:
            • Date of termination - mutual parting, with non-
              disparagement
            • Severance with specific terms (withhold taxes)
            • General Release (for all entities), with promise not to
              sue
                  – OWBPA language, consult a lawyer, 21 days to
                    consider, 7 days to revoke ADEA release
             • Survival of Restrictive Covenants




17
Employment Separation


        Exit Interviews
        Post-Employment Benefits Entitlement
        The Return of Property & Confidential Information
          – Company Confidentiality Policy




18
Questions?




19

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Doing Business in DC | Finding Talent and Labor Laws in DC | Recent Developments in Labor and Employment Laws

  • 1. Finding Talent and Labor Laws March 7, 2012 Presented by Grace H. Lee, Esq. 1
  • 2. Hiring New Employees  Anti-Discrimination Laws: Federal and state laws prohibit hiring procedures which discriminate on the basis of protected characteristics  Applies to discrimination in: hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of various protected characteristics. 2
  • 3. Protected Categories Federal: D.C. Adds:  Sex  Sexual Orientation  Race  Marital Status  Age  Matriculation  Religion  Family Responsibilities  National Origin  Familial Status  Gender Identity  Color  Personal Appearance  Disability  Political Affiliation  Veterans Status  Genetic Information  Pregnancy  Other Categories 3
  • 4. Hiring New Employees  Hiring process – Consistency is key (application, interview, background check, etc).  Pre-Employment Inquiries – Interviewing Do‟s and Don'ts (illegal questions) – Testing (ensure consistency)  ADAAA – Respond to request for reasonable accommodation  Background Checks (Credit & Criminal) – Can be done (and, in some cases, it is mandatory) – Must comply with the Fair Credit Reporting Act (FCRA) and applicable state laws – Must notify the applicant – Offense must be job related to be used as basis of employment decision 4
  • 5. Hiring: The At-Will Doctrine  The “at-will” employment relationship means you may terminate for any reason or no reason at any time, with or without notice.  Caveat: You cannot terminate an at-will employee for an illegal reason (i.e. discrimination, retaliation) or in a manner contrary to an agreement.  Offer letter v. employment agreement – Offer Letter • Important if you have weak or non-existent employment policies or employee manual. • Can be used to clarify issues raised during the recruitment process and set expectations from both parties. • Typically not for a term and should contain affirmation of at-will status. – Employment Contract • Typically at odds with the at-will concept, and it should be drafted as such. • Used as a recruitment and retention tool. • Used to protect highly sensitive and proprietary information through the use of restrictive covenants. • Normally recommended only for executives, professionals or confidential (i.e., IT) positions.  Ensure consistency with employee handbook 5
  • 6. Hiring: Immigration Compliance  Form I-9 – Verify that employees are legally authorized to work in the U.S. • Does not apply to volunteers • Does not apply to independent contractors – Refrain from discrimination against individuals based on national origin, race, or citizenship – Must complete Form I-9 within three business days of the first day of work for pay – Begin I-9 process after you offer the job and the employee accepts – Social security number is voluntary – Do not ask request specific documents – let the employee pick from list of options on the form – Maintain for three years after the date of hire, OR one year after the date of termination, whichever is later – Keep I-9 separate from other personnel file documents 6
  • 7. Wage & Hour and Leave Issues  The Law: – The Family & Medical Leave Act of 1993 (FMLA) – The Fair Labor Standards Act  Exempt/Non-Exempt Status  Independent Contractors  Alternative Work Arrangements (e.g. flextime) – Consistency is key. Employees must have equal access to work arrangements, to avoid discrimination claims • Create policies (e.g. Telecommuting Policy and Agreement) 7
  • 8. Family and Medical Leave Act  Federal law and District of Columbia  Updated regulations for Federal FMLA and DC FMLA  Federal FMLA provides up to 12 weeks of family and medical leave per 12 month period  Federal FMLA provides up to 26 weeks of military family leave in a 12 month period  DC FMLA provides up to 16 weeks of family leave AND 16 weeks of medical leave in a 24-month period  Federal and D.C. FMLA run concurrently, if applicable  Should comply with the law that provides employee with greater benefit 8
  • 9. FMLA Coverage  Federal – Must be employed by an employer with 50 or more employees in a 75 mile radius of the place the employee works – Employee must have worked at least 1,250 hours during the previous 12 months prior to the request for leave  DC – Employer must have at least 20 employees – Employee must have worked at least 1,000 hours in the 12-month period immediately preceding the request for leave – Employment must be without a break in service 9
  • 10. FMLA Leave Benefits  Job Security – Must hold position – Employee entitled to return to same or equivalent job – May fill position temporarily until employee returns – Can eliminate job if would have done so even if employee not out on leave  Unpaid leave  Benefits – Employer must continue to receive benefits during the leave – Health insurance must continue as if the employee was still working  No loss of benefit or seniority accrued prior to the start of the employee‟s leave 10
  • 11. Federal and DC FMLA Reasons for Leave  Birth of a child or to care for a newborn child;  Placement of a child with the employee for adoption or foster care, or placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility;  Employee is needed to care for a “family member” with a serious health condition;  Employee‟s own „serious health condition‟ that makes the employee unable to perform the functions of the job 11
  • 12. Military Leave Entitlement  Under Federal Military FMLA an eligible employee may take leave for the following reasons: – To address certain qualifying exigencies arising out of the fact that the spouse, or a son, daughter or parent of the employee is on „covered active duty‟ (or has been notified of an impending call or order to covered active duty) in the Armed Forces • Up to 12 workweeks of leave in a 12-month period (rolling back) – To address military caregiver leave to care for a son, daughter, parent, or next of kin who is an injured or ill servicemember or veteran • Up to 26 workweeks of leave in a 12-month period (rolling forward) 12
  • 13. DC Accrued Sick and Safe Leave Act  ASSLA provides paid sick leave for absences due to the employee‟s or family member's medical condition, domestic violence or sexual abuse  Up to seven days of paid leave per year  Reasons for leave – Absence resulting from physical or mental illness, injury, or medical condition of the employee – Absence resulting from obtaining professional medical diagnosis or care, preventative medical care (must make reasonable efforts to schedule leave so it does not unduly disrupt school‟s operations) – Absence for purpose for caring for a child, parents, spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care described above – Absence if the employee or employee‟s family member is a victim of stalking, domestic violence, or sexual abuse 13
  • 14. Wage and Hour  Federal law - Fair Labor Standards Act (FLSA)  DC same as Federal for exempt v. nonexempt  Two Classifications – Overtime eligible (non-exempt) • Entitled to overtime pay (one and half times the regular rate of pay) for hours worked over forty in a workweek • Paid hourly • Salaried employees can be overtime eligible – Non-Overtime eligible (exempt) • Paid the same amount regardless of number of hours worked • Must meet certain requirements to be exempt from overtime pay 14
  • 15. Employee or Independent Contractor  Legal Tests (no more 20-factor test) – Integral part of business – Permanency of relationship – Who supplies facilities and equipment – Opportunities for profit and loss – Provides this work for other employers – Managed by company employees or independent  Independent Contractor Agreement 15
  • 16. Employment Separation  Separation and Release Agreements (Severance) – Necessary in some circumstances • Troublesome termination • Protected category (i.e. race, disability) • High salary • High profile  Confer with counsel to ensure that the agreements properly protect the company and are legally enforceable. 16
  • 17. Employment Separation  Separation and Release Agreements – Typical provisions: • Date of termination - mutual parting, with non- disparagement • Severance with specific terms (withhold taxes) • General Release (for all entities), with promise not to sue – OWBPA language, consult a lawyer, 21 days to consider, 7 days to revoke ADEA release • Survival of Restrictive Covenants 17
  • 18. Employment Separation  Exit Interviews  Post-Employment Benefits Entitlement  The Return of Property & Confidential Information – Company Confidentiality Policy 18