What Job Applicants Need to Know About Employment Law

Mary M. Williams

September 21, 2009

First things first….

•Thanks for coming-

I applaud you for participating!

•Questions at the end

Employment Law for Applicants

Tonight’s Topics

• Job Interviews

• Getting PAID! (Wage & Hour)

• Discrimination/Harassment

• Common Misconceptions

Job Interviews

What’s legal?•Job-Related Questions

• Education• Experience• Training• Skills• References• Hobbies/Interests

Job Interviews

What’s Illegal?•Questions that are not job related, such as:

• Age• Race• Disabilities• Pregnancy• Marital Status• Religion

Job Interviews

Sample Legal Questions• What is your greatest strength?• What is your greatest accomplishment?• Have you ever been fired?• What days can you work?• What did you make at your last job?• Why did you leave your last job?• Will you need time off?• When can you work?• Can you lift 30 pounds?*

Job Interviews

Sample Illegal Questions• Are you on any medication?• Have you ever filed for workers’ comp?• Are you on any medications?• Are you married?• How many children do you have?• Do you go to church?*• Where were you born?• How old are you?• What are your childcare arrangements?

Job Interviews

What if you are asked an improper question?• Do not be surprised or angry• Might be a mistake• Politely state:

• The question seems personal • You would prefer to keep your responses job-

related

• Re-affirm you can do the job

Employment Discrimination

•Title VII of the Civil Rights Act of 1964•Pregnancy Discrimination Act•Age Discrimination in Employment Act (ADEA)•Americans with Disabilities Act (ADA)

Discrimination Law Prohibits

(1) Treating employees differently based on race, sex, age, religion, national origin, etc. (example: we don’t hire women)

(2) Having a policy or practice that has impacts certain employees differently due to their race, sex, age, religion, etc. (example: help wanted ad for college grads only)

(3) Harassment based on race, sex, age, religion, disability, etc. (example: nooses, explicit pictures at work)

Employment Discrimination

•Are all employers covered?

• 15 employees for Title VII, ADA, and Pregnancy Discrimination Act

• 20 employees for ADEA

•EEOC enforces (www.eeoc.gov)

Title VII

• Prohibits discrimination based on:

race, color, religion, sex national origin

Pregnancy Discrimination Act

•Prohibits discrimination based on pregnancy

Age Discrimination in Employment Act of 1967

•Prohibits discrimination in employment based on age•40 and older are protected class•Employer must have 20 or more employees

Americans with Disabilities Act

• Prohibits discrimination against any “qualified individual with a disability”• Includes physical and mental impairments• Complicated statute:

Alcoholism – might be a disability Current drug use – not covered by ADA

“Qualified Individual”

•Who is covered?•An individual with a disability•Who can perform the essential functions of her job•With or without reasonable accommodation•Examples:

• Police • Pilots• Clerical workers

Employer Must Provide “Reasonable Accommodation”

• Make facilities accessible and usable

• Modify work schedules• Modify or purchase equipment• Adjust or modify tests and policies• Provide readers or interpreters• NOTE: Depends on circumstances

Unlawful Harassment

Is a form of discrimination based on:

• Race, color, religion, sex or national origin (Title VII)

• Age (40 or older) (ADEA)• Disability (ADA)

Is not just someone who annoys you at work

Unlawful Harassment

• May be by a supervisor

• May be by a co-worker

• May be by a customer or another person present at work

What To Do About Discrimination and Harassment:

• Look for a policy or posting• If there is a policy, follow it • If no policy, report it to your supervisor• If your supervisor is the harasser, report it up

the chain of command• Make a written report, with details and examples• If your complaint is not being addressed, go to

the EEOC• If you are fired after reporting? Get a lawyer

Getting PAID!

What Rules Apply?:•Fair Labor Standards Act (FLSA)•NC Wage and Hour Act•States outside NC may have different rules

Getting PAID!

Who Enforces? :•U.S Department of Labor (DOL)

• www.dol.gov

•North Carolina Dep’t of Labor (NC DOL)

• www.nclabor.com

Getting PAID!

What’s Legal?:•Minimum Wage ($7.25/hr)•Overtime if over 40 hrs in a workweek•Accurate timekeeping

Getting PAID!

What’s Illegal?:•Paying less than minimum wage (exception for tips - $2.13/hr)•Withholding wages•Failing to notify employees of wages•Not paying final paycheck

Getting PAID!

What’s Illegal?:•“Comp time” in lieu of overtime (exception: public employers)•No overtime for salaried employees •Using unpaid “volunteers”

Common Misunderstandings

• My boss said, “you have a job so long as you do your job.” Can I be fired anyway? (Yes)

• My employer thinks I stole something, but I didn’t. Can I be fired anyway? (Yes)

• Does my employer have to give me 2 weeks notice before terminating employment? (No)

• Do I have to give two weeks notice if I want to quit? (No – but look at vacation policies first)

• Can my employer require me to work overtime? (Yes)• Can my employer require weekend or holiday work? (Yes)• I need maternity leave or medical leave – my employer has to

provide that, right? (If under 50 ees, no. If over 50 ees, then if you have been there one year and 1250+ hrs, you may qualify for up to 12 weeks of FMLA leave, but the leave is unpaid.)

Common Misunderstandings

• Is my employer required to give me meal or rest breaks? (No, unless under 16 yrs old)

• Can my employer require me to sign a confidentiality or noncompete agreement? (Yes)

• Can I say whatever I want about my employer? (No) • Is my employer required to offer paid vacation or paid sick

leave? (No)• If I am injured at work, can my employer terminate my

employment? (Maybe)• If I quit my job, can I get unemployment? (Not usually, but it

depends on the facts)

The End

• Questions?• Good luck!!!

Mary M. Williams