DEAN SPARLIN ESQ.
Employment Law and Statistical Analysis
Focusing on Employment Law Needs of Employers: Affirmative Action
Employment Law from an Employer Perspective
An employer must be cognizant of state and federal laws that govern employee hiring, compensation, treatment and termination. If you are an employer facing legal issues in any aspect of employment, consult an employment law attorney at our firm for guidance.
Many legal matters arise in the hiring of new employees. Of course, one of the most important areas of concern is to ensure that all hiring decisions are made for legitimate, job-related reasons not involving illegal discrimination. Broadly, federal law forbids discrimination in employment based on race, color, national origin, gender, religion, age, disability, military service or veteran status, union affiliation or citizenship. Your state and local laws may add protection to other classifications, such as sexual orientation. To show compliance with anti-discrimination laws, the reasons for hiring or rejecting a job candidate should be well documented.
Employers must follow federal immigration laws when hiring new employees. Because an employer may only hire workers legally authorized to work in the U.S., the employer must complete an Employment Eligibility Verification (I-9) for each new hire. The I-9 requires the employer to certify that it has reviewed particular legal documents proving the new employee's legal work status. I-9s must remain on file with the employer for possible government review for a set period of time.
An additional method for employers is E-Verify, which allows electronic validation of new hires' legitimate work status through a joint program of the Department of Homeland Security (DHS) and the Social Security Administration (SSA). Originally optional for all employers except those with federal government contracts, E-Verify may now be either required or forbidden for certain employers, depending on applicable state law.
To determine appropriate tax withholding from wages a new hire must complete the Internal Revenue Service (IRS) Employee's Withholding Allowance Certificate, usually referred to as a W-4. W-4s are usually retained by the employer. The employer must also follow any requirements for withholding and reporting to the state tax agency.
Employers must also adhere to state laws that govern notifying a state labor or employment agency of a new hire or registering as a new employer. Federal law requires that each state maintain a State Directory of New Hires (SDNH) to which employers must send new employee identifying information. SDNH information is used for child-support enforcement and other purposes, including interstate child-support enforcement through a national directory.
The federal minimum-wage law is the Fair Labor Standards Act (FLSA), which was amended by the Fair Minimum Wage Act of 2007 to raise the minimum wage in three stages. Before the 2007 act, the minimum wage was $5.15 per hour, where it had been for about ten years. The Act raised the minimum wage to $5.85 per hour on July 24, 2007, with subsequent 70-cent raises scheduled on that same date both in 2008 and in 2009.
Some industries are permitted to pay a lower minimum wage and some employees are not covered by the FLSA, most notably executive, administrative and professional employees. In addition, employees who regularly receive tips, apprentices, some workers with disabilities and younger workers may receive lower wages under certain conditions.
State law can set a higher minimum wage; however, only a few states do so. If state law sets a lower minimum wage, the employer must pay the higher federal minimum wage to eligible employees. Usually the lower state minimum is appropriately paid to FLSA-exempt employees.
Two main federal statutes cover employee leave time. The Family and Medical Leave Act (FMLA) allows covered employees up to 12 weeks of unpaid leave to deal with certain family issues. The Uniformed Services Employment and Reemployment Act of 1994 (USERRA) governs the impact of leave for active military service on job security and employment benefits.
At-will employment is the standard throughout most of the United States and means that an employee can be fired any time for any reason as long as the reason is legal, or for no reason. At the same time, an employee can leave the job at any time for any reason.
If a valid employment contract includes a provision requiring that termination may only be for cause, the employer must have a legitimate ground for firing the employee. When terminating employees, employers may have additional legal obligations imposed by law or by collective-bargaining agreements.
In all aspects of employment an employer must be aware of existing law, both state and federal. Current or potential employers should consult an employment law attorney at our firm for additional information and guidance.
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