ARSA presents its’ Employment Law Compendium, taken from 2004-2007 issues of the hotline.

Find the answers to questions about:

• I-9 Form
• Employee Lawsuits
• Unemployment Claims
• Whistleblower Laws
• And more!

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All Article Summaries from the Employment Law Compendium, Dec. 2004-Nov. 2007

2004

December 2004
On Creating A Functional Family
You should not have to pass a bar exam to deal effectively with workplace laws, but you should be familiar enough with state and federal employment laws to recognize potential red flags and take action before the issue develops into a discrimination charge or a lawsuit. This article provides an overview of several important employment laws including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA).

2005

January 2005
Whistle While You Work: Whistleblower Laws Affecting Repair Stations
Whistleblowing is best described as a complaint voiced by an employee to the employer or to a government agency about a business practice or condition that may be in violation of law. Enactment of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), among other whistleblower laws, has raised the potential exposure for aviation related employers enormously. Here are the steps the Occupational Safety and Health Administration (OSHA) follow in investigating a whistleblower or retaliation complaint by an employee.

February 2005
Singing in the Rain: Be Proactive to Avoid Whistleblower Claims
Being a whistleblower means the person is in a protected class just like race, gender, age, or religion. Before taking an adverse employment action, such as a written warning, demotion or termination, against an employee, consider whether that employee is or may be a whistleblower. Your company should also establish a reasonable procedure and process for employees to report suspicions of wrongdoing or questionable activity.

May 2005
Don’t Trip on the Tarmac: The H2-B Visa
Operation Tarmac is an initiative of United States Immigration and Customs Enforcement (ICE) and other federal and state agencies to, among other things, investigate the immigration status of airline-industry workers in the United States. Operation Tarmac has affected many ARSA members. If you need to employ other than a U.S. citizen as a mechanic the visa that most likely applies is the H2-B visa. An H-2B visa provides work authorization in situations of temporary need where there is a demonstrated shortage of U.S. workers.

June 2005
Don’t Trip on the Tarmac: Form I-9
Under federal law, an employer must (1) not knowingly hire, or continue to employ, any person not authorized to work in the United States and (2) complete Form I-9 to verify the identity and employment eligibility of every new employee, whether the person is a U.S. citizen or foreign national, hired on or after Nov. 6, 1986.

July 2005
Don’t Trip On The Tarmac: Special I-9 Issues
This article continues the discussion of the I-9 Form and focuses on special problems presented when the employer encounters fake documents and other fraudulent information.

August 2005
Confederate Southern American is Not a Protected Class
Courts that have considered an employee’s right to display the confederate flag on personal items at work have universally concluded that employees have no such constitutional right and that private employers may ban the display of such items in the workplace. One court opined that allowing Confederate symbols in the workplace could expose an employer to a hostile work environment claim under Title VII of the Civil Rights Act of 1964.

September 2005
Don't Let "Change To Win" Defeat Your Company
A group of unions recently separated from the AFL-CIO and formed a coalition called “Change To Win.” This coalition, representing nearly a third of all union members in the country, is putting more money and effort into organizing.

October 2005
Don't Let "Change To Win" Defeat Your Company, Part 2
The “Change to Win” union coalition will likely mean an increase in unionization efforts by members of the coalition and other unions. The best method to avoid unionization is to maintain positive employee relationships and good human resources practices.

November 2005
Employers Can Place Limits On Employee Lawsuits
As an employer, you may be able to shorten the length of time in which you can be sued, and it’s as simple as amending your employment application. (Results may vary, depending on your jurisdiction.) A Court recently held that a six-month limitations period in an employment application barred a lawsuit by an employee who filed suit within the statutory limitations period but more than six months after her claims accrued.

December 2005
Avoiding Legal Liability: Ten Ideas for ARSA Members
Use these ten tips to reduce the likelihood of employment litigation, the cost of any litigation, and/or increase the chance of winning any litigation.

2006

January 2006
Share the Burden of War by Helping a Reservist
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) governs the relationship between military reservists and their employer. Here are the basic principles of USERRA spelled out for easy understanding.

February 2006
Conducting Investigations of Employees
Whether interviewing a complainant, aggressor, co-worker, manager, or any other employee whose identity surfaces during an investigation, you must be careful not to intimidate, persuade, influence, or manipulate the witness(es). Consider these guidelines when conducting an interview of an employee.

March 2006
Recent AIR-21 Decisions Expand Employee-Employer Relationship
In a recent claim under the Aviation Investment and Reform Act for the 21st Century (AIR-21) against Southwest, the Administrative Review Board concluded that there must be an employer-employee relationship between the air carrier, contractor or subcontractor employer who violates AIR-21 and the employee who is discharged or discriminated against. This means an employee under AIR-21 may include employees of contractors and temporary agencies.

April 2006
Navigating the Joint Employment Maze
The term "joint employment" describes a legal relationship between two employers in which both have actual or potential legal rights and duties with respect to the same employee or group of employees. In subcontracting and employee leasing situations, a worker may be an employee of two entities under many employment laws, including the Fair Labor Standards Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Employee Retirement Income Security Act (ERISA).

May 2006
Employment Law 101
Since the Civil Rights Act of 1991 allows for jury trials, punitive damages and other remedies, there has been an almost exponential increase in employment discrimination and wrongful discharge lawsuits. This four step process to use in hiring and managing workers will increase your company’s chance of prevailing against an employment discrimination charge.

June 2006
Supreme Court Defines Retaliation—And It's Adverse To Employers
On June 22, 2006, the U.S. Supreme Court handed down its opinion in Burlington Northern & Santa Fe Railway Co. v. White. The Court adopted a considerably more flexible, and thus more amorphous, retaliation standard requiring only that “a reasonable employee would have found the challenged action adverse.” This decision means retaliation as defined in Title VII of the Civil Rights Act of 1964 includes non-employment actions and we will likely see an increase in such claims against employers.

July 2006
The Social Security (Mis)Match Game
The Department of Homeland Security (DHS) recently published proposed regulations that would significantly change employer obligations in response to a letter from either the Social Security Administration (SSA) or DHS noticing a mismatch between an employees Social Security number and name. If notified of a mismatch, the employer must first check for clerical errors, if no such errors are discovered, the employer must instruct the employee to pursue the matter with the relevant agency.

August 2006
An Overview of Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act makes it unlawful for any employer to engage in employment discrimination against any individual based on that person’s race, color, religion, sex, or national origin. In general, the statute applies to employers with at least 15 employees and prohibits discrimination and harassment.

September 2006
The Americans with Disabilities Act of 1990: An Overview
The Americans with Disabilities Act (ADA) prohibits an employer, with 15 or more employees, from discriminating against a “qualified individual with a disability” who can perform “the essential functions” of a job “with or without reasonable accommodation.” Understanding the terminology used in the ADA is challenging. These definitions will help.

October 2006
An Overview Of The Family and Medical Leave Act of 1993
The Family and Medical Leave Act ("FMLA") provides eligible employees with guaranteed unpaid leave for qualified personal and family illnesses, as well as the birth or adoption of a child—and protects their jobs in the process. This article describes the threshold requirements for eligibility and important definitions under the statute.

November 2006
Employer Liability at Off-Site Celebrations
Misconduct at company hosted gatherings can expose your organization to liability for drunk driving and potentially sexual misconduct of party goers. Consider these guidelines when holding such functions to minimize the risk to your employees and your company.

December 2006
What The Democrat Controlled Congress May Do In This New Year
With Democrats in control of both houses of Congress there are several likely issues they will address important to employers. Minimum wage increase, immigration reform, a revision in the Family and Medical Leave Act (FMLA), and paid sick leave are some of these hot topics.

2007

January 2007
1-2-3-Stand Clear . . . ZZZZZZZT!
Although not required by current OSHA regulations, the agency encourages employers to consider placing Automated External Defibrillators (AEDs) in the workplace. Many states have AED laws that dictate physician oversight, training and registration. All existing state AED laws protect lay rescuers using AEDs from tort liability, provided that the aid is rendered in good faith, without gross negligence, and without objection from the victim.

February 2007
Exactly What Is “Retaliation?”
A valid retaliation claim consists of three elements: (1) legally protected activity, (2) adverse employment action, and (3) a “causal nexus” between the protected activity and the adverse action. To help avoid a claim of retaliation employers should educate and train supervisors, enforce policy consistently and inform employees of their rights.

March 2007
Can Employers Lawfully Prohibit Employees From Discussing Salaries?
Many employers have policies prohibiting their employees from discussing information related to their wages and terms and conditions of employment. Such policies can result in legal challenges and employers must make sure to write them in a manner that the employees cannot reasonably construe as a violation of their rights.

April 2007
You Snooze, You Lose!
Foreign student graduates are eligible to work in the U.S. for one year after graduation as part of their Optional Practical Training. However, for continued employment, employers need to file a timely application for an H-1B professional work visa.

May 2007
Congress Considering Workplace Bills
Two congressional bills may impact employers. The Genetic Information Non-Discrimination Act would prohibit employers and insurers from discriminating against individuals based on their genetic information and the Employment Non-Discrimination Act (“ENDA”) would prohibit discrimination based on sexual orientation or gender identity.

June 2007
Handling Unemployment Claims—Part 1
If you contest an unemployment compensation claim from a discharged employee there will be an appeals hearing. A disgruntled ex-employee may use this hearing to gather information for a claim of discrimination or other labor complaint.

July 2007
Handling Unemployment Claims—Part 2
A discharged employee may or may not give notice of intended civil or administrative action against an employer. Regardless, a wise employer should conduct a simple and inexpensive internal audit before deciding whether to contest an unemployment claim.

August 2007
Handling Unemployment Claims—Part 3
Although state laws vary, generally speaking, a former employee is disqualified from receiving unemployment benefits if terminated by the employer for misconduct connected with work or leaves his employment without good cause attributable to the employer. You should ask different questions depending upon the circumstance before deciding whether or not to contest an unemployment compensation claim.

September 2007
What Can I Do When An Employee Discloses A Problem With Drug Use Or Tests Positive For Drugs?
If an employee admits to drug or use tests positive for drugs is covered under the Department of Transportation (DOT) testing requirements the employer’s only options are dictated by federal law. However, if the employee is not covered under the DOT testing requirements an employer may consider these three options: automatic termination, progressive discipline, or place the employee on a leave of absence and require them to enter into a Last Chance Assistance Agreement.

October 2007
Who Cares About Employment Recordkeeping Requirements?
Appropriate recordkeeping may be tedious but it is essential for compliance with federal and state employment laws. Application and employment records are vital to respond to an Office of Federal Contract Compliance Programs (OFCCP) audit or a U.S. Department of Labor (DOL) allegation of a Fair Labor Standards Act (FLSA) violation.

November 2007
Employment Records That Should or Must Be Kept
To be in compliance with many federal laws, employers should keep personnel performance records for a minimum of one year (four years recommended) from the date of any personnel action. An employer should keep personnel records like applications, resumes, or employment inquiries for one year from the date a decision was made not to hire an applicant or the date the record is created (whichever is later).