Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:
- National origin
An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:
- Are you married? Are you planning to get married?
- Do you have children? Are you planning to have children?
- Where were you born?
- What's your sexual orientation?
- Have you ever been arrested?
An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:
- Have you ever been convicted of a crime?
- Can you prove that you are eligible to work in the US?
- Can you do this job with, or without, reasonable accommodations?
A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.
In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.
While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.
At a minimum, an employee handbook should include:
- A statement regarding the at-will employment relationship
- An equal employment opportunity statement
- A policy regarding sexual and other types of harassment in the workplace
- Internet access, e-mail, and voice mail policies
- The Family Medical Leave Act
The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and alicensed attorney should be contacted to review individual circumstances.
Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.
Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.The following disability benefits are provided:
- Permanent partial disability (PPD) benefits are paid at a rate of 66 2/3 of your wage with a maximum payment of $313.48 per week for a maximum of 400 weeks
- Temporary total disability (TTD) benefits are paid at a rate of 66 2/3 of your wage with a maximum payment of $439 per week for the duration of your disability or until you are released to pre-injury job or similar job
- Permanent total disability (PTD) benefits are paid at a rate of 66 2/3 of your wage with a maximum payment of $439 per week for the duration of your disability
An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:
- Direct sexual conduct - an employer makes sexual advances or statements
- "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
- Hostile work environment - an employer maintains an overly sexual work environment
Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.
Discrimination and Wrongful Termination
Employers are not allowed to terminate or discriminate against employees for the following reasons:
- National origin
It's illegal for an employer to consider these characteristics with regard to:
- Job assignments
And it's illegal for an employer to terminate an employee:
- For refusing to break a law
- In retaliation for filing a discrimination or safety claim
- For taking leave under the Family and Medical Leave Act
- Without following its own stated procedure or policy
- For reasons not contained in the employment contract, if one exists
Family and Medical Leave
The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:
- Have worked for the same employer for the previous 12 months
- Have worked at least 1,250 hours in the previous 12 months
- Are employed by a "covered" employer, which is:
- All federal, state, and local governments and agencies
- Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce
An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.
Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.
Many state unemployment insurance benefits provide temporary income to help workers who are unemployed because they have been laid off or had their hours reduced because of a lack of work, discharged for reasons other than misconduct or left work with good cause attributable to their employment. Your employer pays all costs of unemployment insurance.
To be able to file a claim for unemployment insurance benefits, you must be able to work, be available for work and be looking for full-time work. Once your initial claim is filed, you may qualify for unemployment benefits in many states by meeting either the monetary eligibility requirements or the non-monetary eligibility requirements. Monetary eligibility is based on the amount of money you earned during the base period of your claim. The base period is the first four of the last five completed calendar quarters at the time you file your initial claim for benefits.
Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.
To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:
- Voluntary or involuntary termination of employment for reasons other than gross misconduct
- Reduction in numbers of hours worked
For dependent children
- Loss of coverage by the employee because of one of the qualifying events listed above
- Covered employee becomes eligible for Medicare
- Divorce or legal separation of the covered employee
- Death of the covered employee
- Loss of coverage because of any of the qualifying events listed for spouses
- Loss of status as a dependent child under the plan rules