Employment Law Essentials (not finished)

Governing Agencies for Labor Law

US Department of Labor (DOL)

US Equal Employment Opportunity Commission (OEEOC)

Occupational Safety and Health Administration (OSHA)

US Citizenship Immigration Service (USCIS)

Internal Revenue Service (IRS)

Office for Civil Rights (USDHHS)

What is OEEOC responsible for?

Discrimination (age, equal pay, disability, national origin, race, color, religious)

Sexual harassment

What is OSHA responsible for?

Workplace safety laws enforcement

What is USCIS responsible for?

I9 and authorization to work in US

What is IRS responsible for?

Taxation as it relates to independent contractor vs employees

Withholding

Remote workers

What is USDHHS responsible for?

HIPAA Privacy and Security

Gender Affirming Care and Privacy

Online tracking technologies

Civil rights as related to unlawful discrimination in health and human services

Conscience and religious freedom

Employment laws treat _____ and _____ differently

employees, independent contractors

Under common law rules, the relationship between worker and employer must be examined and the _____ the worker is able to exert must be assessed

degree of independence and control

Three factors are analyzed to determine whether and individual is an employee or independent contractor:

Degree of behavioral control

Degree of financial control

Relationship between the parties

Courts have determine that employees are those who are:

Paid salary or wages

Under some form of supervision

Independent contractors

Receive a sum of money for the performance of discrete services or completion of projects

May decide (without direct supervision) how work is performed

If an independent contractor is treated as an employee, then all protections afforded other employees will be available to that individual

Employer is then obligated to withhold and contribute to appropriate federal, state, and local taxes

Certain federal protections (e.g., number of work hours) will also apply to the individual

Hiring/Selection practices are significantly affected by the following federal laws:

Title VII of the Civil Rights Act

Age Discrimination in Employment Act (ADEA)

American with Disabilities Act Amendments Act (ADAAA)

Fair Labors Standards Act (FLSA)

Family and Medical Leave Act (FMLA)

Civil Rights Act of 1964 Title VII - Equal Employment Opportunity

Age Discrimination in Employment Act of 1967

Americans with Disabilities Act (ADA) of 1990

Equal Pay Act of 1963

Immigration Reform and Control Act of 1986

During the interview process, curiosity about an applicant’s personal life can lead to _____

lawsuits (child care, pregnancy)

When interviewing, it is generally best to avoid any questions that relate to:

Gender (sex), Age, Religion, National origin, Disabilities, Marital status, Sexual orientation, Ethnicity, Parental status/intended parental status

Most pharmacist managers use _____ to review the backgrounds of employment finalists before extending an offer of employment

due diligence

Due diligence may include:

Reference checks with current or former employers

Educational degree verifications

Criminal records checks

Drug tests

_____ can reveal potential employees’ shortcomings including dishonesty and performance issues, which can prevent future problems

Preemployment screenings

Screenings must comply with state and federal laws related to fair credit reporting and privacy, as background checks are covered by the _____

Fair Credit Reporting Act (FCRA)

Fair Credit Reporting Act (FCRA)

Federal consumer protection statute that regulates the screening process

The FCRA is a perfect vehicle for _____ — a successful claim can recover statutory damages between $100 and $1000 per violation, attorney’s fees, punitive damages and costs as well as actual damages

class action litigation

One of the fundamental requirements of the FCRA is to have _____ from a job applicant or employee prior to conducting an employment background check. The authorization and disclosure must stand alone, and should not be combined with other forms or hidden within the job application

written authorization and disclosure

Adverse action notification

Two-step process that must be followed strictly by the book, and many employers get tripped up by skipping one or even both steps

Step 1: Pre-adverse action notice

This is sent to the applicant prior to making a not to hire decision based on the background check. You have to provide the applicant with a notice, send them a copy of the report, and attach a Summary of Rights under the FCRA

Step 2: Adverse action notice

This is sent after the final decision has been made and must contain information on how to dispute the background check

Criminal background checks may be conducted as follows:

A manager may check public records

An outside company or investigator may conduct an intensive records interview

Organizations may require prospective employees to submit to fingerprinting to use federal and state databases to match criminal records

Criminal backgrounds of prospective employees

Managers must decide whether the nature, timing, and seriousness of an offense is job-related and would preclude individual from employment

Should consider whether hiring someone with a criminal record would adversely affect the workplace, patient safety, or how employee performs assigned duties

Healthcare providers are often subjected to check through the:

National Practitioner Data Bank (NPDP)

Healthcare Integrity and Protection Data Bank

Drug Enforcement Administration (DEA)

These organizations maintain information related to whether the applicant holds and appropriate health care license or the applicant has been convicted of a crime or has pending civil judgements against him/her

The Americans With Disabilities Act Amendments (ADAA) places limitations on medical screenings

Must be job related

Must be required of all employees

Only permitted after an employer makes a “real” employment offer and conducts all other forms of preemployment screening

Some employers search the internet for information about job candidates

May return unreliable information

May violate equal opportunity mandates

Should be used with caution

To constitute a valid employment contract, agreement must occur between the offeror (employer) and offeree (potential employee)

To achieve this, one party makes an offer, and the other party accepts

If the other party makes a counter-offer, then no contract exists until the parties agree on all terms of the contract

When both parties agree on employment terms, the final agreement should be put in writing

Employment agreements may be made for an established time period or for “at will” employments

Most employment contracts are at will: may be terminated by either party at any time for any reason that does not violate public policy

Type of employment contract determined by

Terms of the agreement

Policy manual governing the employment relationship

State law

Public policy considerations

For contracts that extend beyond one year, many states’ statutes of fraud require the agreement to be _____

in writing

Agreements often contain noncompete clauses or restrictive covenants

Used to prevent an employee from opening a competing practice nearby for a specified period of time

Courts do not look favorably on such clauses and require them to be reasonable in duration and geographic location

May not unnecessarily impede departing employee’s ability to earn a living

An employer must provide adequate consideration (compensation) to the employee

Many organizations are substituting liquidated damages provisions for noncompete clauses

Fair Labor Standards Act (FLSA) — “The Overtime Law”

• Establishes minimal wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments

• Unless specifically exempted, employees covered by the Act must receive overtime pay for hours in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. There is no limit in the Act on the number of hours employees aged 16 and older may work in any workweek. The Act does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such

• Regular pay cannot be less than minimum wage

• Overtime pay may not be waived in agreement

• Final rule in effect July 1, 2024

Unlawful Harassment

• Includes harassment on the basis of race, religion, color, creed, age, national origin/ancestry, sex, marital status, veteran status, physical/mental disability, sexual orientation, pregnancy, or any other basis made unlawful by law, regulation, or ordinance

• Unlawful harassment, such as sexual harassment, is a form of employment discrimination

Two kinds of sexual harassment

• Quid pro quo harassment — “something for something”

• Hostile environment harassment

  • A plantiff does have to prove psychological injury to prove hostile environment harassment

  • Depends on the totality of the circumstances