Bankruptcy Act (1978)
10 July 2006
Bankruptcy Act (1978)
(as amended by the Bankruptcy Act Amendments of 1984),
11 U.S.C. §525
Coverage and Prohibition: Employees of the federal government and of private employers are protected from termination or discipline for filing bankruptcy, for failing to pay a debt that terminated in bankruptcy, for becoming insolvent before or during bankruptcy but before their debts are terminated, or for being associated with such a debtor or bankrupt.
Enforcement: The debtor may obtain enforcement of this provision through the courts by private suit.
Remedies: No remedies are specified in the statute.
Protection of Jurors’ Employment (1978)
10 July 2006
Protection of Jurors’ Employment (1978), 28 U.S.C. §§1363, 1875
Coverage and Prohibition: These statutes prohibit all employers from disciplining any permanent employee for the employee’s participation in jury service.
Enforcement: Upon application by an aggrieved employee, the court will appoint counsel to resolve the claim through a private suit.
Remedies: The employer may be enjoined from violating the statutes and may be ordered to reinstate an employee found to have been improperly discharged. Compensation for lost wages and benefits will be awarded, and the employer also shall be liable for a civil penalty of up to $1,000 for each violation. Reasonable attorney’s fees will be awarded to a prevailing plaintiff, or to the employer, if the court finds the employee’s suit was frivolous, vexatious, or brought in bad faith.
Consolidated Omnibus Budget Reconciliation Act (1985)
10 July 2006
Consolidated Omnibus Budget Reconciliation Act (1985),
29 U.S.C. §§1161-1168
Coverage and Prohibition: Passed as an amendment to the Employee Retirement Income Security Act (“ERISA”), the Internal Revenue Code (“IRC”), and the Public Health Service Act (“PHSA”), the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) requires employers with 20 or more employees that provide group health plans to offer continuation coverage to qualified beneficiaries who have lost health care coverage as a result of certain qualifying events. The term “group health plan” refers to any plan that provides medical care to the organization’s employees, former employees, or the families of employees or former employees (including dental plans, vision care plans, medical flexible spending accounts, and cafeteria plans that provide medical benefits). Qualified beneficiaries are individuals who, on the day before a qualifying event, are covered under a group health plan as a covered employee, spouse of a covered employee, or a dependent child of a covered employee (including children born to, or placed for adoption with, a covered employee during the period of COBRA continuation coverage).
Qualifying events that trigger a covered employer’s obligation to offer the continuation coverage under COBRA include: (1) the termination of employment (for reasons other than gross misconduct); (2) a reduction in hours so that the employee no longer qualifies for regular insurance coverage; (3) the covered employee’s death; (4) the divorce or legal separation of the covered employee from his spouse; (5) the covered employee’s enrollment in Medicare; (6) the cessation of coverage of a dependent child under the terms of the plan; or (7) the bankruptcy of the employer (this applies only to retirees). Once a qualifying event has occurred, the employer must notify the qualified beneficiaries of their right to continue health care coverage for between 18 and 36 months, depending on the type of qualifying event. Employers are not required to pay for the cost of the coverage; they only are required to offer the continuing coverage to the qualified beneficiaries.
Enforcement: Both the Department of Labor (“DOL”) and the Department of Treasury (“Treasury”) administer COBRA continuation coverage of private-sector health group health plans. The Department of Health and Human Services administers the law as it affects public-sector health plans. The DOL’s interpretive and regulatory responsibility is limited to the disclosure and notification requirements of COBRA while Treasury has issued COBRA regulations related to eligibility, coverage, and premiums. The DOL and Treasury, however, share jurisdiction for enforcement of these provisions.
Remedies: An employer that violates COBRA requirements may be subject to a nondeductible excise tax in the amount of $100 per day per violation during the “noncompliance period,” up to a maximum of $200 per day per family. The noncompliance period begins on the date the violation first occurs and continues until the violation is corrected. In addition to COBRA’s statutory penalties, ERISA gives plan participants and beneficiaries the right to sue for penalties of up to $110 per day against covered nongovernmental plan administrators who fail to give required COBRA notices. Further, ERISA makes plan fiduciaries personally liable for breach of their fiduciary duty which may include failure to follow COBRA rules.
Related Regulations:
Treasury: COBRA Continuation Coverage, 26 C.F.R. §54.4980B-1 to -10.
Department of Labor: COBRA Notices, 29 C.F.R. §§2590.606-1 to -4.
Immigration Reform and Control Act of 1986
10 July 2006
(as amended by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996),
8 U.S.C. §§1324a et seq.
Coverage and Prohibition: The Act as amended prohibits all employers (regardless of size) from hiring individuals who are not legally eligible to work in the Unites States. Accordingly, all employers, including state and local government employers, must verify that employees are either U.S. citizens or authorized to work in the United States. Verification requires that new hires produce specific documents proving their identity and employment eligibility and, further, that both employee and employer complete a government form, INS form I-9, indicating that the new hire is eligible for employment. Form I-9 must be retained for three years from the date of hire or until one year after termination, whichever is later.
In addition, the Act makes it unlawful for employers with four or more employees to discriminate by hiring, recruiting, referring, or discharging employees on the basis of national origin, citizenship, or intention to obtain citizenship.
Enforcement: The U.S. Citizenship and Immigration Services, formerly, the Immigration and Naturalization Service and now part of the Department of Homeland Security, may audit employer compliance, conduct investigations and hearings, and impose penalties against employers who knowingly hire unauthorized aliens or fail to comply in good faith with the verification procedures set forth in the Act.
Charges of discrimination may be filed with the Special Counsel for Immigration-Related Unfair Employment Practices who will investigate the charges received. If the Special Counsel determines that there is reasonable cause to believe the charge to be true, he may file a complaint before one of the administrative law judges for special appointment by the Attorney General under the Act. The judge will then conduct a hearing on the charge and issue a final order, which is subject to limited judicial review.
Remedies: Employers that fail to comply with the documentation requirements or that knowingly hire or continue to employ an unauthorized alien may be subject to substantial penalties of up to $11,000, depending on the nature and number of violations. In addition, employers that engage in a pattern or practice of violations are subject to criminal fines of up to $3,000 for each unauthorized alien, imprisonment for not more than six months for the entire pattern or practice, or both. Employers that discriminate in violation of the Act also may be assessed civil penalties of not less than $250 and not more than $10,000 for each individual discriminated against, and ordered to hire adversely affected individuals with back pay and to pay reasonable attorney fees.
Related Regulations:
Department of Homeland Security (Immigration and Naturalization): Control of Employment of Aliens, 8 C.F.R. Part 274a.
Drug-Free Workplace Act (1988)
10 July 2006
Drug-Free Workplace Act (1988), 41 U.S.C. §§701 et seq.
Coverage and Required Conduct: The Act requires all employers that are federal grant recipients, and those with federal contracts of $100,000 or more, to agree to provide a drug-free workplace. Covered employers must issue a statement prohibiting the illegal manufacture, distribution, dispensation, possession, or use of any controlled substance in the workplace and specify the consequences for violating the policy. In addition, the statement must require employees engaged in contract-related work to notify the employer of any criminal conviction for a drug violation occurring in the workplace within five days of the conviction. Employers that receive those notices must, within 30 days, either take appropriate disciplinary action against the employee, up to and including termination, or require the employee to participate satisfactorily in a rehabilitation program approved by a federal, state or local health, law enforcement or other appropriate agency. Covered employers also must notify the contracting government agency within ten days after receiving notice of such employee convictions. Moreover, employers must establish an awareness program informing employees about the dangers of drug abuse; the employer’s policy; any available assistance programs; and the Act’s sanction provisions for employees convicted of a drug violation occurring in the workplace. The Act does not, however, require drug testing.
Enforcement: The head of the contracting agency determines whether the contractor: (1) has violated the Act’s requirements; or (2) has so many employees with criminal convictions for drug statute violations occurring in the workplace as to indicate that the contractor has failed to make a good-faith effort to provide a drug-free workplace.
Remedies: The contracting officer may initiate proceedings to suspend payments, terminate the contract, or suspend or debar the contract for a period specified in the debarment decision, up to five years. The agency head may waive suspension of payments, termination, suspension, or debarment if he determines that such action could severely disrupt the operation of the agency to the detriment of the federal government or the general public.
Related Regulations:
Notice and Final Rules, Implementation of the Drug-Free Workplace Act, 55 Fed. Reg. 21,679; 21,706 (May 25, 1990); and 30,465 (July 6, 1990).
Department of Defense: Federal Acquisition Regulation; Drug-Free Work Force, 48 C.F.R. §§223.570-1 et seq., 252.223-7004.
Department of Transportation: Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 49 C.F.R. Part 40.
Department of Health and Human Services: Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed. Reg. 11970 (April 1, 1988).
Employee Polygraph Protection Act (1988)
10 July 2006
Employee Polygraph Protection Act (1988), 29 U.S.C. §§2001-2009
Coverage and Prohibition: All private employers engaged in or affecting commerce are prohibited from: (1) requiring or requesting any employee or prospective employee to submit to any kind of lie detector test (except in the limited circumstances described below); (2) using, accepting, referring to, or inquiring about the results of any lie detector test of any employee or prospective employee; (3) discharging, disciplining, refusing to hire or promote, otherwise discriminating against, or threatening to take such action against an employee or prospective employee who refuses to take a lie detector test or doing any of the same based on the results of a lie detector test; or (4) discriminating against individuals for asserting their own or another person’s rights under this Act. Federal, state, and local governments are not subject to the Act. Also, the Act grants limited exceptions for private employers providing certain security services and employers that manufacture, distribute, or dispense controlled drugs.
Finally, employers may ask (though not require) an employee to take a polygraph test (but not any other kind of lie detector test, such as a voice stress analysis) if: (1) the test is part of an ongoing investigation into theft, embezzlement, sabotage, or similar economic loss; (2) the employee had access to the property that has been lost; and (3) the employer reasonably suspects that the employee was involved in the incident. The Act provides many specific rules for conducting polygraph tests and the use of the results. Employees who take the test may not be discharged or discriminated against solely on the basis of the test results without additional supporting evidence.
Enforcement: The Act is administered by the Secretary of Labor. Employees also are permitted to enforce their rights directly by bringing suit in federal court. The Act does not expressly require employees to exhaust their administrative remedies first.
Remedies: The Secretary of Labor may assess civil penalties of up to $10,000 for violations. In addition, the Secretary may bring suit in federal court to enjoin the employer’s illegal conduct and obtain employment, reinstatement, back pay, and benefits for aggrieved employees and prospective employees. Individuals who sue directly are eligible for the same relief, plus their attorney’s fees.
Related Regulations:
Department of Labor: Application of the Employee Polygraph Protection Act of 1988, 29 C.F.R. Part 801.
Worker Adjustment and Retraining Notification Act (1988)
10 July 2006
,
29 U.S.C. §§2101-2109
Coverage and Prohibition: The Worker Adjustment and Retraining Notification Act (“WARN”) requires that employers with 100 or more employees nationwide must provide workers with 60 days advance notice of a plant closing causing an employment loss for 50 or more employees within any 30-day period. The employer also must provide 60 days notice of a mass layoff that will cause an employment loss, at a single cite, within any 30-day period, for one third of the work force and at least 50 employees or for 500 or more employees (regardless of whether this constitutes one third of the work force) at a single work site.
Employment loss is defined in the Act as an employment termination, layoff exceeding six months, or a reduction of hours of work of more than 50 percent during each month of any six month period. In determining whether a plant closing or mass layoff has occurred, employment losses for two or more groups, each of which is less than the minimum but which occur within any 90-day period and which in aggregate exceed the minimum shall be considered a plant closing or mass layoff unless the employer shows that the losses are results of separate and distinct actions and causes. The Act excludes from the number of affected employees retirees, persons discharged for cause, and those accepting transfers to another employment site. The Act reduces the notification period for employers trying to obtain capital or new business, and no notification is required for a plant closing or mass layoff resulting from a natural disaster. This Act is not meant to alter or affect existing employee rights to notice of layoff, but is meant to run concurrently with any other notification period required by state law or by a collective bargaining agreement. The notice required is to be directed to the representative of the affected employees, or if there is no representative, to each affected employee, to the state dislocated worker unit, and to the chief elected official of the unit of local government in which the closing or layoff occurs.
Enforcement: Any aggrieved employee, employee representative, or the local government of the affected community may bring an action in federal court for enforcement of the Act. Although it has no enforcement duties, the Department of Labor has issued regulations interpreting and guiding administration of the Act.
Remedies: Specified remedies are set forth in the Act and include back pay and benefits for each employee for the period of violation, up to 60 days. Prevailing plaintiffs also may recover reasonable attorney’s fees.
Related Regulations:
Department of Labor: Worker Adjustment and Retraining Notification, 20 C.F.R §§639.1-639.10.
Americans with Disabilities Act (1990)
10 July 2006
Americans with Disabilities Act (1990), 42 U.S.C. §§12101 et seq.
Coverage and Prohibition: Title I of the Americans with Disabilities Act (“ADA”) prohibits employment discrimination against qualified disabled individuals and requires covered employers to provide reasonable accommodation to those individuals unless that accommodation would impose an “undue hardship.” The ADA defines a “qualified individual with a disability” as an individual with a disability who can, with or without reasonable accommodation, perform the essential functions of the job that the individual holds or desires. A “disability” is defined as: (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of having that type of impairment; or (3) being regarded as having that type of impairment. Employers may screen out disabled individuals who cannot perform the essential functions of the job, even with accommodation, and those who pose a direct threat to their own health or safety, or the health or safety of others.
The Act places a number of limitations on the conduct of medical examinations and inquiries. Employers may not make preemployment medical inquiries, but may ask about the ability of the applicant to perform job-related functions. Medical examinations may be used only after a conditional offer of employment has been extended. An offer of employment may be conditioned on the results of the examination only if: (1) all entering employees in the same job category are subjected to the examination regardless of whether or not they have a disability; and (2) the information obtained is treated as a confidential medical record and kept in a medical file separate from other personnel information. As for current employees, the ADA permits medical inquiries and medical examinations if they are both job-related and consistent with business necessity. Testing current employees or applicants to determine the “illegal use of drugs” is not considered a medical examination for purposes of the Act.
The Act also prohibits discrimination against all disabled individuals by private entities that provide public accommodations and services that affect interstate commerce, including the failure to provide auxiliary aids and services and the failure to remove architectural barriers.
Enforcement: The employment provisions of the Act are administered by the Equal Employment Opportunity Commission (“EEOC”). Title I of the ADA incorporated the enforcement procedures and remedies of Title VII of the Civil Rights Act of 1964. Under Title VII, an individual must first file a charge of discrimination with either the EEOC or a state or local fair employment practices agency before bringing suit in court. The Department of Justice oversees public accommodation claims.
Remedies: An employee who brings a successful complaint under Title VII is entitled to injunctive relief, back pay, and attorneys’ fees, including expert fees. In addition, as provided by the Civil Rights Act of 1991, an individual proving intentional disability discrimination may recover compensatory and punitive damages subject to the maximum award limitations provided under the Civil Rights Act of 1991. Those damages may not be recovered in a case alleging failure to provide a particular accommodation if the employer demonstrates good faith efforts to identify and make, in consultation with the disabled person, a reasonable accommodation that would provide such individual with an equally effective opportunity. In a case alleging intentional discrimination and seeking compensatory or punitive damages, either party may demand a jury trial.
Related Regulations:
EEOC: Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. Part 1630.
EEOC: Technical Assistance Manual (1990).
EEOC: Enforcement Guidance on Preemployment Inquiries Under the ADA (October 1, 1995).
EEOC: Enforcement Guidance: Workers’ Compensation and the ADA (September, 1996).
EEOC: Enforcement Guidance on the ADA and Psychiatric Disabilities (March, 25, 1997).
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000).
EEOC: Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (October, 17 2002).
Older Workers Benefit Protection Act (1990)
10 July 2006
Older Workers Benefit Protection Act (1990), 29 U.S.C. §§621 et seq.
Coverage and Prohibition: The Older Workers Benefit Protection Act (the “Act”) amends the Age Discrimination in Employment Act (“ADEA”) (see above) in several important areas. As its main focus, the Act reversed the United States Supreme Court’s ruling in Public Employees Retirement System of Ohio v. Betts, 492 U.S.158 (1989). In Betts, the Supreme Court held that employee benefit plans that are not intended to avoid the ADEA in other aspects of employment may offer older employees lower benefits than those offered to younger employees.
The Act restored and codified the EEOC’s pre-Betts “equal benefit or equal cost” principle, which allows an employer to “observe the terms of a bona fide benefit plan,” as long as the employer provides older workers the same or better benefits as younger workers. If the benefits offered to younger workers are better than the benefits offered to older workers, the employer must prove: (1) that the cost of providing those benefits to older workers would exceed the cost of providing the benefits to younger workers; and (2) that the benefits offered to older workers cost the employer at least as much as the benefits offered to younger workers.
The Act permits an employer to deduct from severance payments and long-term disability benefits the value of certain other employer-provided benefits. The Act also establishes offsets that are permitted against several benefits in connection with an early retirement incentive program.
Additionally, the Act imposes specific minimum conditions that must be met for an effective release of potential age discrimination claims under the ADEA. Employers must show the following in order for a release to be considered “knowing and voluntary:” (1) the waiver must be written in plain English; (2) the waiver must specifically refer to rights or claims arising under the ADEA; (3) the employee must receive something of value in addition to anything of value to which the employee is already entitled; (4) the waiver cannot bar the employee’s right to pursue claims that may arise after the waiver is signed; (5) the employee must be given at least 21 days to consider whether to sign the agreement, or at least 45 days if the waiver is offered in connection with an exit incentive; (6) the employee has at least seven days following the signing of the waiver in which to revoke it; and (7) the employer must advise the employee in writing to consult an attorney. Slightly different rules apply to waivers signed in connection with group layoffs, lawsuits, or pending Equal Employment Opportunity Commission (“EEOC”) charges.
Enforcement and Remedies: The enforcement procedures and available remedies are the same as provided for the ADEA (see above).
Related Regulations:
EEOC: ADEA Interpretations and Substantive Regulations, 29 C.F.R. Part 1625.
EEOC: ADEA Procedures, 29 C.F.R. Part 1626.
EEOC: ADEA Recordkeeping and Posting Requirements, 29 C.F.R. Part 1627
Civil Rights Act of 1991
10 July 2006
Civil Rights Act of 1991, 29 U.S.C. §§621 et seq.,
42 U.S.C. §§1981, 1989, 2000e et seq., and 12101 et seq.
Coverage and Prohibition: The Civil Rights Act of 1991 was originally described by its sponsors as legislation to overrule certain Supreme Court decisions dealing primarily with the scope of Section 1981 of the Civil Rights Act of 1866 (see above) and with various legal issues arising in litigation under Title VII of the Civil Rights Act of 1964 (“Title VII”) (see above). The final version went well beyond this purpose and also made a number of significant changes in the enforcement structure of these and several other federal antidiscrimination statutes. The Act amended Section 1981 so that it applies to all types of employment decisions or practices claimed to be racially biased, including discharges, discipline, unequal benefits, or claims of racial harassment, as well as refusals to hire or promote.
The Act amends the coverage of Title VII to make it unlawful, in connection with the selection of applicants for employment or promotion, to adjust the scores of, use different cutoff scores for, or alter the results of, employment related tests based on the race, color, religion, sex, or national origin of the test taker. This bars the practice of treating the test scores of minority applicants differently (i.e., “race norming”) in order to increase the pool of minority candidates. The Act also amends both Title VII and the Americans with Disabilities Act (see above) to cover U.S. citizens employed overseas by U.S. controlled companies unless that coverage would violate the law of the foreign country. The Act does not affect court-ordered remedies, affirmative action, or conciliation agreements that comply with the law.
Enforcement: The Act made a number of significant changes in legal principles governing the enforcement of federal antidiscrimination laws, particularly Title VII. Changes were made to ease the plaintiff’s burden of proof in two types of Title VII discrimination cases where the Supreme Court had imposed a more difficult burden.
First, the Act provides that in “disparate impact” cases unlawful discrimination is established if the employee shows (usually statistically) that a facially neutral practice (such as a test), or analytically inseparable group of practices, causes an unintended, adverse, disparate impact on a protected group. This discrimination will be found unless the employer proves that: (1) there is no causal connection between the practice and the statistical result; or (2) the practice is job-related and consistent with business necessity. Second, the Act provides that in “mixed motive” cases an employer violates Title VII by using an impermissible factor, such as race or sex, to make an employment decision. A violation will be found even if the employer proves that it would have made the same decision without considering the impermissible factor.
Finally, one of the Act’s most significant changes was the creation of the right to demand a jury trial in cases involving requests for damages.
Remedies: Prior to the Act, complainants could not seek monetary damages as a remedy. The Act permits monetary damages for intentional (not disparate treatment) discrimination against the disabled (under the Americans with Disabilities Act and the Rehabilitation Act of 1973). Additionally, Title VII plaintiffs whose claims are not covered by Section 1981 (generally, those claiming sex or religious discrimination) also may recover damages.
Employees proving intentional discrimination of the types described above may recover compensatory (e.g., pain, suffering, loss of enjoyment) and punitive damages in addition to the traditional remedies of back pay with interest, reinstatement, and other injunctive relief. Punitive damages are permissible when the employer is shown to have acted with malice or with reckless indifference to the rights of the employee.
The total amounts of compensatory and punitive damages awarded for each complainant are capped and may not exceed the following limitations:
Employer’s
Number of Employees Maximum Dollar Recovery
15 - 100 $50,000
101 - 200 $100,000
201 - 500 $200,000
Over 500 $300,000
These limitations do not apply to suits alleging race discrimination brought under Section 1981, or under both Section 1981 and Title VII. If an employee seeks compensatory or punitive damages, either party may demand a jury trial.
The Act also amended Title VII and the Civil Rights Attorney’s Fees Awards Act (42 U.S.C. §1988) to provide that reasonable expert witness fees may be included in the attorneys fees awarded to successful complainants under Title VII, Section 1981, or the new remedial provision dealing with intentional discrimination described above.
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