Age Discrimination in Employment Act (1967)
10 July 2006
Age Discrimination in Employment Act (1967), 29 U.S.C. §§621-634
Coverage and Prohibition: Employers that are engaged in an industry affecting commerce and who have 20 or more employees are prohibited from discriminating against individuals on the basis of age in hiring or discharge decisions or with respect to compensation, terms, conditions, or privileges of employment. The Act protects employees who are at least 40 years old. Under amendments to the Act, there is no upper limit to the protected age range. Employees of federal, state, and local governments also are protected.
Enforcement: The Act is administered by the Equal Employment Opportunity Commission (“EEOC”). Aggrieved employees are required to file a charge with the agency, and the agency must be given time to attempt conciliation before a complainant may bring a private suit. Private suits under the Act are tried to a jury except in the case of federal employees.
Remedies: Monetary damages for back pay and other benefits withheld are the standard remedies, but liquidated damages equal to the amount of back pay awarded can be assessed if the employer’s violation is willful. Remedies of reinstatement, retroactive seniority, and appropriate equitable relief (e.g., an injunction) also are available. Attorney’s fees may be awarded to successful plaintiffs. (For an important amendment to the ADEA, see Older Workers Benefit Protection Act, below.)
Related Regulations:
EEOC: Age Discrimination in Employment Act, Interpretive Rules, 29 C.F.R. Part 1625.
EEOC: Age Discrimination in Employment Act, Procedural Rules, 29 C.F.R. Part 1626.
EEOC: Records to be Made or Kept Relating to Age, 29 C.F.R. Part 1627.
Department of Labor, Interpretive Bulletin on Employee Benefit Plans, 29 C.F.R. §1625.10.
Omnibus Crime Control and Safe Streets Act of 1968
10 July 2006
Omnibus Crime Control and Safe Streets Act of 1968
Title III- The Wiretap Act
(as amended by the Electronic Communications Privacy Act of 1986), 18 U.S.C. §§2510 to 2701 et seq.
Coverage and Prohibition: This law generally prohibits the intentional interception or accessing of any wire, oral, or electronic communication during actual transmission. However, employers may monitor such communications with the employee’s prior consent or under the “business extension” exception. The business extension exception allows employers, in the ordinary course of business, to intercept communications using equipment approved by the Act so long as the employer can show a normal business-related reason for doing so. The Electronic Communications Privacy Act amended the Wiretap Act’s definition of electronic communication specifically to include e-mail, digitized transmissions, and video teleconferences and to permit the person or entity that provides an electronic communication service to access the communication while it is in electronic storage and without obtaining consent.
Enforcement: The Act is enforced by the Department of Justice. The U.S. Attorney General may bring suit in federal court for an injunction against any person violating or about to violate the Act. Persons whose communications are intercepted, disclosed, or intentionally used in violation of the Act may bring a civil action
Remedies: In an action brought by the Attorney General, violators may be fined under federal law, imprisoned for not more than five years, or both. In addition, mandatory civil penalties of not less than $500 will be assessed against repeat offenders or persons who violate an injunction. Private complainants may recover an appropriate injunction, compensatory damages of not less than $100 a day for each day of violation up to $10,000, and punitive damages.
Consumer Credit Protection Act (1968)
10 July 2006
Consumer Credit Protection Act (1968), 15 U.S.C. §§1671 et seq.
Coverage and Prohibition: All employees are protected by this Act, which limits the amount of an employee’s wages that can be withheld to satisfy a wage garnishment. The amount withheld cannot exceed either: (1) 25% of the employee’s weekly disposable earnings; or (2) the amount by which the employee’s weekly disposable earnings exceed 30 times the current minimum wage set by the Department of Labor. Note that each state has its own statutes on garnishments, and the federal standard is designed only to set the maximum that can be withheld under state law. The federal act does not limit court-ordered wage deductions for the support of any person or wage deductions for state and federal tax debts. The Act also prohibits an employer from discharging an employee whose wages are garnished for one indebtedness.
Enforcement: The Act is enforced by the Wage and Hour Division of the Department of Labor.
Remedies: An employer that discharges an employee in violation of the federal Act may be subject to fines and criminal penalties.
Fair Credit Reporting Act (1970)
10 July 2006
Fair Credit Reporting Act (1970)
(as amended by the Consumer Credit Reporting Reform Act of 1996 and the
Fair and Accurate Credit Transactions Act of 2003)
15 U.S.C. §§1681 et seq.
Coverage and Prohibition: The Fair Credit Reporting Act (“FCRA”) was initially passed as part of banking legislation to protect the privacy of consumer credit report information and to guarantee that the information provided by credit bureaus is accurate. The FCRA allows employers to use “consumer reporting agencies” to obtain “consumer reports,” i.e., to perform credit or other background checks (including criminal, reference, or driving record checks) on applicants or employees and to make employment decisions based on that information only if they comply with comprehensive notice, consent, and disclosure obligations both prior to performing the checks and after the results are reported. The statute defines “consumer reporting agency” as any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties. A “consumer report” is defined broadly to include any written, oral, or other communication of any information by a consumer reporting agency regarding a consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used as a factor to establish the consumer’s eligibility for employment.
Amendments to the FCRA under the Fair and Accurate Credit Transactions Act (“FACTA”) prohibit employers from receiving medical information from consumer reporting agencies unless the information is relevant to the employment and the applicant or employee has given prior written consent. In addition, under FACTA, the Federal Trade Commission (“FTC”) issued rules governing the disposal of sensitive consumer report information by persons, like employers, who, for a business purpose, maintain or possess consumer report information.
Enforcement: The FTC enforces and administers the FCRA and FACTA except to the extent that enforcement responsibility is specifically committed to another agency under the FCRA. A violation of any requirement or prohibition imposed under the FCRA is treated as an unfair and deceptive act or practice under the FTC Act for which the FTC may sue in federal court on behalf of injured parties. However, criminal penalties for violations are handled by the Department of Justice. Persons affected by an employer’s violations of the FCRA also may sue in federal court.
Remedies: In an action by the FTC, violators are subject to various monetary and injunctive penalties including, for those who knowingly violate the FCRA, up to $2,500 per violation. In addition, the court may grant any other appropriate relief other than punitive damages. Persons affected by an employer’s negligent noncompliance with the FCRA may recover actual damages, court costs, and attorney fees. Additional penalties, including criminal penalties and potential jail time, are available in cases of willful noncompliance or if the report was obtained under false pretenses or knowingly without a permissible purpose.
Related Regulations:
FTC: Disposal of Consumer Report Information and Records, 16 C.F.R. Part 682.
FTC: Model Forms and Disclosure under the Fair Credit Reporting Act, 16 C.F.R. Part 698.
Occupational Safety and Health Act (1970)
10 July 2006
Occupational Safety and Health Act (1970), 29 U.S.C. §§651-678
Coverage and Prohibition: Since the Act applies to employers in any business affecting commerce, it covers most private employers. Employers that are excluded, generally, are subject to safety and health requirements established by other agencies. Employers are required to maintain a workplace that is free from recognized hazards likely to cause death or serious injury and to comply with the workplace safety and health standards promulgated by the Occupational Safety and Health Administration (“OSHA”). Employers are prohibited from discharging or in any other way discriminating against employees who exercise their rights under the Act. This precludes an employer from discharging an employee who, acting under a reasonable apprehension, refuses in good faith to expose himself to a hazardous workplace condition.
Enforcement: The Act is enforced by OSHA compliance officers, who may inspect an employer’s premises to identify violations. Employees who have been subjected to discrimination may file a complaint with the Secretary of Labor within 30 days of the alleged violation. The Secretary may bring a suit to redress employer discrimination. It has been held that there is no private right of action for employees who are injured as a result of conditions which violate OSHA standards, leaving those employees to the remedies permitted under state workers’ compensation laws.
Remedies: Even if identified violations of safety standards are immediately rectified, the employer may be subject to civil penalties of up to $7,000 for individual violations and up to $70,000 for repeated and willful violations. For employer discrimination violations, reinstatement and back pay remedies are available.
Related Regulations:
Department of Labor (“DOL”): Inspection, Citations and Proposed Penalties, 29 C.F.R. Part 1900.
DOL: Recording and Reporting Occupational Injuries and Illnesses, 29 C.F.R. Part 1904.
DOL: Occupational Safety and Health Standards, 29 C.F.R. Part 1910.
DOL: Safety and Health Regulations for Construction, 29 C.F.R. Part 1926.
DOL: Occupational Safety and Health Standards for Agriculture, 29 C.F.R. Part 1928.
DOL: Discrimination Against Employees Exercising Rights Under the Occupational Safety and Health Act of 1970, 29 C.F.R. Part 1977.
DOL: Identification, Classification, and Regulation of Potential Occupational Carcinogens, 29 C.F.R. Part 1990.
Federal Election Campaign Act (1971)
10 July 2006
Federal Election Campaign Act (1971), 2 U.S.C. §§431-455
Coverage and Prohibition: The Act limits the means that a corporate employer may use to solicit contributions from employees for the employer’s political fund. The Act also makes it unlawful for any corporation to make a contribution or expenditure in connection with any election in which citizens vote for presidential and vice-presidential electors or a Senator or Representative in Congress. Contributions and expenditures are prohibited in connection with any primary election or political convention or caucus held to select candidates for any such office. Corporations are permitted by the Act to establish a separate segregated fund that may be utilized for political purposes. Note that, while this Act applies to election for federal office, many states have similar statutes limiting the contributions of corporations in state and local elections.
Enforcement: The Act is enforced by the Federal Election Commission (”FEC”), which receives and monitors reports from campaign committees and may investigate cases of improper contributions and expenditures. The Commission is empowered to initiate civil actions or to refer apparent violations to the Attorney General for prosecution. There is no private right of action by individual employees or shareholders for damages related to a corporation’s contributions or expenditures.
Remedies: A person who knowingly and willfully violates the Act through contributions or expenditures aggregating $2,000 or more, but less than $25,000, in any calendar year may be subject to a fine, imprisonment for not more than a year, or both. Violations involving more than $25,000 may result in a prison term of up to 5 years, fines, or both.
Related Regulations:
FEC: Corporate and Labor Organization Activity, 11 C.F.R. Part 114.
State and Local Fiscal Assistance Act
10 July 2006
State and Local Fiscal Assistance Act
(Revenue Sharing Act) of 1972, 31 U.S.C. §§6711-6720
Coverage and Prohibition: State and local governmental bodies receiving federal revenue-sharing funds are prohibited from discriminating on the basis of race, color, national origin, age, disabled status, religion, or sex.
Enforcement: The Act is administered by the Secretary of the Treasury, but the Attorney General may bring a civil suit to remedy violations. Private citizens may sue under the Act if they have exhausted available administrative remedies.
Remedies: Federal funds may be cut off, or the governmental unit may be required to give back pay to make any victim of discrimination whole.
Rehabilitation Act of 1973
10 July 2006
Rehabilitation Act of 1973, 29 U.S.C. §§701-795n
Coverage and Prohibition: The mandate of the Act is divided in two parts. The first part, commonly referred to as section 503, covers private employers that are government contractors. The second part, section 504, applies to programs and activities that receive federal financial assistance. For employers holding government contracts and subcontracts in excess of $10,000, section 503 of the Act prohibits discrimination against disabled individuals. If the employer’s contract is $50,000 or greater and the employer has 50 or more employees, the employer is required to develop a written affirmative action program for the employment of the disabled. Section 504, on the other hand, only prohibits discrimination against the disabled and does not require an affirmative action plan. Both sections require that the covered employer make a reasonable accommodation for the worker’s handicap. Note that the Americans with Disabilities Act and a great many state fair employment practice laws also prohibit discrimination against the disabled.
Enforcement: The Office of Federal Contract Compliance Programs (“OFCCP”) of the Department of Labor administers section 503, and the requirements of section 504 are enforced by the federal agency granting the financial assistance. In both cases, enforcement actions may be initiated by the filing of an individual complaint with the appropriate agency or by periodic compliance reviews. There is no private right of action under section 503. An aggrieved individual, however, may sue under section 504.
Remedies: Agencies enforcing either section may withhold progress payments from noncomplying employers. Alternatively, the employer’s contract may be terminated, or the employer may be debarred from competing for future contracts. The OFCCP also may sue to recover back pay for victims of discrimination prohibited by the Act. In addition, under the Civil Rights Act of 1991 (see below), complaints of intentional discrimination under Section 501 of the Rehabilitation Act may include claims for compensatory or punitive damages subject to the award limitations set forth in the Civil Rights Act. If such damages are sought, either party may demand a jury trial.
Related Regulations:
OFCCP: Obligations of Contractors and Subcontractors, 41 C.F.R. Part 60-1.
OFCCP: Affirmative Action Programs, 41 C.F.R. Part 60-2.
OFCCP: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors for Individuals with Disabilities, 41 C.F.R. Part 60-741.
Department of Health and Human Services: Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Federal Financial Assistance, 45 C.F.R. Part 84.
Department of Transportation: Nondiscrimination on the Basis of Disability in Programs and Activities Receiving Federal Financial Assistance, 49 C.F.R. Part 27.
Employee Retirement Income Security Act (1974)
10 July 2006
Employee Retirement Income Security Act (1974),
29 U.S.C. §§1001-1461
Coverage and Prohibition: The Employee Retirement Income Security Income Act (“ERISA”) sets standards and requirements for the substantive provisions and administration of employee benefit plans and employee welfare plans, including, for example, pension and profit-sharing plans. ERISA requires disclosure of benefits information to employees and regulates reporting, recordkeeping, participation, funding, and vesting. ERISA does not apply to plans maintained solely to comply with workers’ compensation, unemployment compensation, or disability insurance laws; plans maintained outside the United States for nonresident aliens; and excess benefit plans.
Enforcement: ERISA is enforced by the Department of Labor. The Pension Benefit Guaranty Corporation guarantees minimum levels of pension benefits to payees and controls the termination of plans. Participating employees, beneficiaries, and alternate payees also may sue for violations of ERISA.
Remedies: ERISA sets out specific penalties for noncompliance with its requirements. Private litigants can recover damages caused by the violation and, if successful, reasonable attorney’s fees. In addition, plan administrators can be personally liable for failure to provide requested plan information and be fined up to $110 a day.
Related Regulations:
Department of Labor, Employee Benefits Security Administration: ERISA Rules and Regulations, 29 C.F.R. Parts 2509 – 2590.
Vietnam Era Veterans’ Readjustment Assistance Act (1974)
10 July 2006
Vietnam Era Veterans’ Readjustment Assistance Act (1974)
(as amended by the Veterans’ Compensation, Education, and Employment Amendments of 1982, the Veterans’ Employment Opportunities Act of 1998, and the Jobs for Veterans Act of 2002)
38 U.S.C. §§4211, 4212
Coverage and Prohibition: Employers that have federal contracts of $100,000 or more must include in the contract a provision requiring them to take affirmative action to employ and promote qualified disabled veterans; veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized; veterans who, while serving on active duty, participated in a U.S. military operation for which a service medal was awarded; and recently separated veterans. Covered contractors also must list most employment openings with an appropriate local employment service office of the federal/state employment service system. In addition, each covered contractor must report annually to the Secretary of Labor certain data concerning the number of employees and covered veterans in its workforce. Regulations implementing the Act require that employers with contracts of $50,000 or more and who have 50 or more employees have written affirmative action plans.
Enforcement: The Act is administered by the Office of Federal Contract Compliance Programs (“OFCCP”).
Remedies: The contracting agency is permitted to withhold progress payments of noncomplying contractors. Further, the contract may be terminated or suspended and the OFCCP may declare the employer ineligible to compete for future contracts. The OFCCP also may seek judicial enforcement of the contract clause requiring affirmative action.
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Related Regulations:
OFCCP: Obligations of Contractors and Subcontractors, 41 C.F.R. Part §60-1.
OFCCP: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors for Veterans, 41 C.F.R. Part 60-250.
OFCCP: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors for Individuals with Disabilities, 41 C.F.R. Part 60-741.
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