Federal labor laws can be a minefield if an association executive is unfamiliar with them. Knowing about Title VII of the Civil Rights Act of 1964 and seeking the advice of an attorney are the best ways to avoid litigation.
Title VII gives protection to groups based on age (40 or older), sex, pregnancy, race, color, national origin, genetic information, religion and disability and applies to organizations with 15 or more employees. Also, Title VII protects employees against discrimination, harassment and retaliation.
Discrimination refers to “disparate treatment” of a person in a protected class. For example, if a promotion is given to a younger employee who has less experience and qualifications than a person over 40, then the employer might be faced with a discrimination charge. Another potential discrimination claim can occur if you pay overtime for men but not women.
Retaliation refers to adverse action taken against an employee based on protected conduct. For example, if a pregnant woman who has the same qualifications as a man employed by the company is passed over for a promotion, then the company or organization could face an Equal Employment Opportunity Commission (EEOC) claim. In fact, a large number of EEOC charges stem from pregnancy discrimination. Also, if an employer fires an employee after he or she has taken family medical leave (FMLA), then that organization or business could face an EEOC charge. If you have 50 or less employees, you do not have to provide employees FMLA. However, if you have a smaller workforce but still put FMLA in an employee manual, then you have to abide by that FMLA policy.
Title VII also provides protection against harassment which includes sexual harassment and a hostile work environment (HWE). Some factors contributing to a hostile work environment include unwelcome conduct or speech, severe or pervasive speech or conduct, speech or conduct that unreasonably interferes with work performance, speech or conduct offensive to a person and speech or conduct that would be offensive to a reasonable person. The HWE applies to all protected classes and can be created by managers, supervisors, co-workers and even non-employees. The best defense against an HWE claim is that the employer prevented and corrected the alleged harassment. Also, associations should have an anti-harassment policy and conduct harassment and discrimination training regularly.
Most federal labor laws apply to businesses and associations with 15 or more employees. However, associations with fewer employees still should be concerned with labor issues because state labor laws apply to smaller employers. For example, in Indiana, the Civil Rights Act (which defines protected classes) applies to organizations that have six or more employees. Therefore, no matter your association’s size, you need to be aware of both federal and state labor laws. You should also have an updated employee handbook that has been reviewed by an attorney.
In addition to considering labor laws for your employees, you must also consider the laws pertaining to hiring volunteers and interns. In the business world, there is no such thing as free labor or volunteers. However, nonprofit organizations can hire volunteers and they are not considered employees.
Internships in the business world must meet a six factor test. To qualify as an internship it must:
- Be similar to training which would be given in an educational environment.
- Be for the benefit of the intern and not the company.
- Not displace regular employees.
- Not provide immediate advantage to the employer.
- Provides no job entitlement.
- Not pay any wages.
This six factor test presently only applies to the private sector, but the Department of Labor is considering issuing guidance to non-profit organizations to clarify how this six factor test applies to them.
And lastly, you need to be aware of social media and how it relates to employee recruitment and advertising. Two important reminders: 1) Employers should not “snoop” into private accounts of potential employees. 2) Employers should have social media policies.
Do you have any tips for association professionals navigating employment law?