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Can My Boss Do That?

The federal Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972 guarantee all workers the right to be free from discrimination because of race, color, national origin, sex, and religious beliefs. The rights cover hiring firing, training, promotion and equal pay.

Each year, the Federal Government receives roughly 100,000 complaints of employment discrimination. Charges of racial discrimination are filed most often (35%), followed by sexual discrimination (30%), discrimination based on national origin (10%) and religion (3%).

Sexual harassment includes practices ranging from direct requests for sexual favors to conditions that create a hostile environment for persons of either gender, including same sex harassment.

An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.

Employees With Disabilities

The Americans with Disabilities Act prohibits discrimination on the basis of disability in all employment practices. An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means significant difficulty or expense when considered in relation to factors such as a business’ size, financial resources, and the nature and structure of its operation.

Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Equal Pay Act

The Equal Pay Act (EPA) prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

  • Employers may not reduce wages of either sex to equalize pay between men and women.
  • A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
  • A violation may also occur where a labor union causes the employer to violate the law.

Minors

Employers must obtain and keep work permits for all minors under 18 years of age.

14 or 15-year-olds may not work during school hours and no more than 3 hours on a school day. They may work between 7 a.m. and 7 p.m. on non-school days. They may not work more than a total of 18 hours per week during the school year. During the summer months, a minor may work up to eight hours per day between 7 a.m. and 9 p.m., but not more than 40 hours per week.

16-18-year-olds who are enrolled in high school, may not work before 5 a.m. or after 10 p.m. on a night preceding a school day (Sunday through Thursday). If the teen has completed high school or is no longer in school there are no hour restrictions.

Pregnancy and Maternity Leave

An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

Filing a Charge

If you believe you have been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job because of your race, color, sex, religion, national origin, age, or disability, or believe that you have been discriminated against because of opposing a prohibited practice or participating in an equal employment opportunity matter, you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). All laws enforced by EEOC, (Title VII of the Civil Rights Act (Title VII), Americans with Disabilities Act (ADA), and Age Discrimination in Employment Act (ADEA), except the Equal Pay Act (EPA), require filing a charge with EEOC before a private lawsuit may be filed in court.

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party’s rights. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.

These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.

To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

Wages, Pay And Benefits

When are pay raises required?

Pay raises are generally a matter of agreement between an employer and employee (or the employee’s representative). Pay raises to amounts above the Federal minimum wage are not required by the FLSA.

Is extra pay required for weekend or night work?

Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.

How are vacation pay, sick pay, holiday pay computed and when are they due?

The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise). These benefits are matters of agreement between an employer and an employee (or the employee’s representative).

How is severance calculated and when is it due?

The FLSA requires payment of at least the minimum wage for all hours worked in a workweek and time and one-half an employee’s regular rate for time worked over 40 hours in a workweek. There is no requirement in the FLSA for severance pay. Severance pay is a matter of agreement between an employer and an employee (or the employee’s representative).

The Employee Benefits Security Administration (EBSA) may be able to assist an employee who did not receive severance pay required in his or her employment contract.

Overtime And Work Hours

When is overtime due?

For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and fire fighters employed by public agencies and to employees of hospitals and nursing homes.

Some states have also enacted overtime laws. Where an employee is subject to both the state and Federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

When can an employee’s scheduled hours of work be changed?

The FLSA has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee’s work hours without giving prior notice or obtaining the employee’s consent (unless otherwise subject to a prior agreement between the employer and employee or the employee’s representative).

Is extra pay required for weekend or night work?

Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.

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