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the Equal Pay Act of
1963 (EPA), which protects men and women who perform
substantially equal work in the same establishment from
sex-based wage discrimination;
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the Age Discrimination
in Employment Act of 1967 (ADEA), which protects
individuals who are 40 years of age or older;
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Title I and Title V of
the Americans with Disabilities Act of 1990, as amended
(ADA), which prohibit employment discrimination against
qualified individuals with disabilities in the private
sector, and in state and local governments;
-
Sections 501 and 505
of the Rehabilitation Act of 1973, which prohibit
discrimination against qualified individuals with
disabilities who work in the federal government;
-
Title II of the
Genetic Information Nondiscrimination Act of 2008
(GINA), which prohibits employment discrimination based
on genetic information about an applicant, employee, or
former employee; and
-
the Civil Rights Act
of 1991, which, among other things, provides monetary
damages in cases of intentional employment
discrimination.
The U.S. Equal Employment
Opportunity Commission (EEOC) enforces all of these laws.
EEOC also provides oversight and coordination of all federal
equal employment opportunity regulations, practices, and
policies. In addition, numerous state laws exist which also
regulate the hiring process.
Discrimination
-
hiring and firing;
-
compensation,
assignment, or classification of employees;
-
transfer, promotion,
layoff, or recall;
-
job advertisements;
-
recruitment;
-
testing;
-
use of company
facilities;
-
training and
apprenticeship programs;
-
fringe benefits;
-
pay, retirement plans,
and disability leave; or
-
other terms and
conditions of employment.
Discriminatory practices
under these laws also include:
-
harassment on the
basis of race, color, religion, sex, national origin,
disability, genetic information, or age;
-
retaliation against an
individual for filing a charge of discrimination,
participating in an investigation, or opposing
discriminatory practices;
-
employment decisions
based on stereotypes or assumptions about the abilities,
traits, or performance of individuals of a certain sex,
race, age, religion, or ethnic group, or individuals
with disabilities, or based on myths or assumptions
about an individual's genetic information; and
-
denying employment
opportunities to a person because of marriage to, or
association with, an individual of a particular race,
religion, national origin, or an individual with a
disability. Title VII also prohibits discrimination
because of participation in schools or places of worship
associated with a particular racial, ethnic, or
religious group.
Employers are required to
post notices to all employees advising them of their rights
under the laws EEOC enforces and their right to be free from
retaliation. Such notices must be accessible, as needed, to
persons with visual or other disabilities that affect
reading.
Note: Many states and
municipalities also have enacted protections against
discrimination and harassment based on sexual orientation,
status as a parent, marital status and political affiliation
Employment Agreements
A written employment
contract is a document that you and your employee sign that
sets forth the terms of your relationship. You don't have to
enter into a written contract with every employee you hire
-- in fact, written employment contracts are generally the
exception, rather than the rule. In some situations,
however, it makes good sense to ask an employee to sign a
contract. When it does, we can help you negotiate and draft
an employment agreement which will clearly spell out the
employee and employer obligations and the rights and
remedies of each party. We can advise you on how to protect
the companies interests while assuring the employee of his
value and the companies commitments to him.
Advantages Of Using
Contracts
Employment contracts can
be very beneficial if you want control over the employee's
ability to leave your business. For example, if finding or
training a replacement will be very costly or time-consuming
for your company, you might want a written contract. It can
lock the employee into a specific term (for example, two
years), or it can require the employee to give you enough
notice to find and train a suitable replacement (for
example, 90 days' notice). While you can't force someone to
keep working for you, an employee is likely to comply with
the agreement's terms if there's a penalty for not doing so.
Employment contracts might
also make sense if the employee will be learning
confidential and sensitive information about your business.
You can insert confidentiality clauses that prevent the
employee from disclosing the information or using it for
personal gain. Similarly, a contract can protect you by
preventing an employee from competing against you after
leaving your company
It is inevitable in every companies life that employees must
be terminated. The decision to terminate an individual’s
employment carries with it the risk of a possible legal
challenge. Depending upon an employer’s policies or whether
an employee has an employment contract, an employee may, for
example, have a breach of contract or “wrongful discharge”
claim. At Lustig & Associates has been guiding employers and
employees through this process for over 30 years. Learn the
right questions to ask before you terminate an employee's
employment.
SEPARATION AGREEMENTS /
WAIVERS AND RELEASES
For many employers, an
employee termination triggers an almost knee jerk reaction:
offer the employee severance pay and a separation agreement
with a release of claims to avoid a potential employee
lawsuit. Other employers offer severance but do not seek a
release. Although there are advantages to the use of
separation agreements to prevent prospective legal
headaches, such agreements may not be appropriate in all
instances.
Whether to offer a terminated employee a severance package
in return for a release of claims depends on a number of
employer specific factors, such as employer policy, practice
and employee relations philosophy. Generally, providing
severance in exchange for a release can be a worthwhile
investment, as the amount of severance generally is
insignificant when compared to the cost of defending an
employee claim.
Severance agreements are
particularly useful when the termination is a difficult one
or the separated employee is viewed as the type of person
likely to assert a claim. Severance agreements are also
effective tools to prevent litigation in the context of
layoffs, where there are risks of multiple claims. |
