Employment Law Overview
By Michael D. Cross, Jr., J.D.
General Rule: Employment relationships are “at will” relationships. Either the employer or the employee can terminate the employment relationship at any time and for any reason, unless an employment contract provides otherwise. This general rule does not apply to employees of federal or state governments or agencies.
General Federal & State Statutes Affecting Employment
Fair Labor Standards Act (1938): Restricts child labor, the number of hours an employee may work, and imposes a mandatory minimum wage. The FLSA does not apply to executives, administrative employees, professional employees, and outside salespersons.
Equal Pay Act (1963): Prohibits gender-based discrimination in the wages paid for similar work for males and females employed at the same establishment.
Occupational Safety and Health Act (1970): Attempts to insure safe and healthful working conditions for practically every employee in the country. Imposes specific standards that employers must meet plus a general duty to keep workplaces safe. Enforced by the Occupational Safety and Health Administration (OSHA), the National Institute for Occupational Safety and Health, and the Occupational Safety and Health Review Commission. These agencies pass additional rules, investigate violations, and hold hearings.
State Workers’ Compensation Laws: These laws, which vary from state to state, establish administrative procedures for compensating workers injured on the job. Workers’ compensation statutes generally provide that if the employee accepts workers’ compensation benefits, the employee forfeits his/her right to sue the employer for negligence. The statutes also bar the employer from suing the employee for negligence. In Georgia, if your business will have three or more employees and/or three or more officers of the corporation (or members of the LLC) who will receive a salary or will be active in the business as employees, even if they are not receiving a salary, then they generally must be covered by worker’s compensation insurance. This coverage is provided by conventional insurance companies, and you should make arrangements with the corporation’s insurance agent for this coverage.
COBRA (1985): Prohibits elimination of a worker’s medical, optical, or dental insurance coverage upon the termination of the worker’s employment (for whatever reason). Generally only applies to employers with 20 or more workers who provide a benefit plan. COBRA requires that terminated employees have 60 days in which to elect to continue with the employer’s group insurance plan. The worker generally may continue to keep the policy for up to 18 months; however, the worker must pay the premiums.
Family and Medical Leave Act (1993): FMLA requires employers with 50 employees or more to provide employees with up to 12 weeks of family or medical leave during any 12-month period. During the employee’s leave, the employer must continue the worker’s health-care coverage and guarantee employment in the same or comparable position when the employee returns. The employer is not required to pay salary during this time. The employer also may avoid these requirements for certain key employees. FMLA defines “key employees” as those whose pay falls within the top 10% of the business’ work force.
Employment Discrimination Laws
With all employment discrimination laws discussed below, the plaintiff must first file a claim with the local branch of the Equal Employment Opportunity Commission within 180 days, unless a state has its own equivalent to the EEOC, in which the place of filing may differ, and the time for filing may extend to 270 days. If the plaintiff fails to file an action with the EEOC within 180 days, s/he loses all rights to file a lawsuit against the employer for discrimination. The EEOC generally takes some time to conduct a preliminary investigation of each claim. It may determine that it should file a lawsuit or take action against the employer on behalf of the employee. It may also determine that it does not wish to do so, in which case it will issue a “right to sue” letter to the plaintiff, at which time the plaintiff may file a lawsuit in federal court for discrimination.
Title VII of the Civil Rights Act of 1964: Title VII prohibits job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion and gender. Title VII generally only applies to employers with 15 or more employees. Title VII prohibits both intentional and unintentional discrimination. Title VII also protects employees from sexual harassment in the workplace.
42 U.S.C. § 1981: Section 1981 prohibits discrimination on the basis of race, color, and national origin in the formation of employment relationships (i.e., in the hiring process) and applies to all employers.
Age Discrimination in Employment Act of 1967: The ADEA prohibits employment discrimination on the basis of age against individuals 40 years of age or older and also prohibits mandatory retirement for non-managerial workers. The ADEA only applies to employers with 20 or more employees and does not appear to apply to government employers.
Americans with Disabilities Act of 1990: The ADA prohibits discriminatory employment practices on the basis of disability and only applies to employers with 15 or more employees. To prevail, a plaintiff employee must show s/he has a disability, is otherwise qualified for the employment in question, and was excluded from employment solely because of the disability. The ADA defines “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such impairment, or (3) being regarded as having such an impairment. This determination is made by the EEOC and/or the courts on a case-by-case basis. Disabilities include alcoholism, cancer, heart disease, muscular dystrophy, cerebral palsy, paraplegia, blindness, AIDS/HIV, and morbid obesity. Employers are required to make “reasonable accommodation”, but are not required to take any act that would cause “undue hardship”, which may include “undue financial hardship.” The ADA does not appear to apply to government employers.
Please note the laws cited above do not include all laws that may bear upon employment-related decisions. Other federal, state, and local laws may impact your situation. Please note also that the above descriptions are used to illustrate the various laws that impact employment decisions. The descriptions, however, do not contemplate every case decision or every statutory provision that may impact your situation. In addition, laws change. Prior to making an employment decision, consult with an employment lawyer or qualified human resources consultant regarding your situation.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.