10 Employment Laws You May Be Breaking

Photo: Berc

The U.S. Department of Labor administers and enforces more than 180 federal employment laws. State and local governments heap their own regulations on top. With all those rules, laws, mandates and reporting requirements to keep track of, it’s easy to violate an employee’s rights without even knowing it.

I asked Jonathan Yarbrough, a North Carolina-based partner with Constangy Brooks & Smith LLP— a nationwide firm that concentrates solely on employment law—for some of the inadvertent violations he’s seen. Here are his top picks.

1. Want to fire that employee who has been complaining about her job, your customers and you? Doing so may be deemed an unfair labor practice under the National Labor Relations Act (NLRA) even if the employee does not have a union.

2. An employee fails to complete a mandatory drug test because they have a shy bladder and simply could not urinate with someone nearby. Can you fire them? The Equal Employment Opportunity Commission has recently opined that someone with a shy bladder could have a disability under the Americans with Disabilities Act (ADA). As a result of numerous amendments to the Americans with Disabilities Act, more impairments are considered disabilities than ever before.

3. With the increased focus on the cost of wellness, you might be inclined to refuse to hire or even terminate those with bad health habits, but doing so may violate their rights. Some states, such as North Carolina, have statutes protecting the off duty use of lawful products. So, if your employee wants to smoke a pack of unfiltered Camels, pound some cupcakes, and drink a fifth of Jack on his or her own time, you have no right to stop them unless they show up intoxicated or otherwise violate company policies.

4. "Oooh that smell. Can't you smell that smell?" Lynryd Skynryd probably wasn’t referring to an ADA violation in those lyrics but whether you smell it or not, doesn’t matter. An employee’s complaint about a co-worker’s lavish application of musk oil may be deemed a chemical sensitivity and considered an ADA disability.

5. Can you fire an employee who said they could work all shifts when they applied for the job but now says they can’t work after sundown Friday? No. You must first determine if you can reasonably accommodate the employee under Title VII of the Civil Rights Act of 1964.

6. Does your time keeping system automatically deduct meal breaks? What if an employee doesn’t take one? Under the Fair Labor Standards Act, if an employee tells their supervisor they did not get the meal break because they were working, the time must be paid. In general, the practice of automatically deducting break time is an invitation to a lawsuit.

7. Is a non-exempt employee who answers email at night or on a weekend entitled to pay for that time? If it’s more than trivial time and the employer knew or should have known the employee was working—as evidenced, for example by an email—FLSA says they have to be paid. Fact is, an employer has to pay non-exempt employees for all time worked.

8. Employers need to be especially careful about disciplining or terminating an employee who has complained to government agencies (or even internally) about such things as wages and hours, unsafe working conditions, financial wrongdoings, harassment, or other problems. There are dozens of whistleblower laws that protect employees from being penalized for raising a red flag.

9. Asking an employee about family medical history can be a violation of Genetic Information Non-Discrimination Act (GINA). While there are certain exceptions for casual "water cooler" discussions, it’s best to let all your employees know they simply cannot ask co-workers or subordinates about their medical history, or for that matter, details about their marital status, sexual preference, or family.

10. Your employee has exhausted the Family and Medical Leave Act allowance and is not back after 12 weeks. Can you fire them? Not necessarily. Additional leave can be a reasonable accommodation under the ADA although it cannot be open-ended—one essential function of every job is attendance.

How to Avoid Breaking the Law

Short of hiring a full time compliance person, how can you protect yourself from what you don’t know? Yarbrough offers some advice.

1. Make sure you have legal counsel with experience in employment law on call—not real estate lawyers acting as employment lawyers.

2. If you can’t afford an experienced HR professional, at the very least designate someone in your organization to handle HR issues and help them keep up to date by attending seminars and participating in HR organizations such as the Society for Human Resources Management (SHRM) to gain a body of knowledge.

3. Don't reuse employment documents from the Internet but if you do, have counsel review what you’ve pilfered. Your free find may cost you a bundle in the long run.

4. Make sure you have a harassment policy and provide training for all employees. They should know what you expect from them and what they can expect from you. Be sure managers, supervisors, and your information technology staff know how to respond to harassment claims.

5. Document, Document, Document. Or, more to the point, document properly. Juries, judges, the employment security commission, and anyone in the legal food chain expects a paper trail. “He said, she said” infuriates a jury.

6. Hire a professional to audit your employment practices, policies, postings, etc.

7. Treat employees with respect and dignity, even when you have to discipline or terminate them.

In employment, as in most fields, ignorance is not a valid defense. Employee lawsuits cost employers billions. Much of that cost could be avoided with an ounce of prevention.

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