An Overview of Four Key Employment Laws

Four Key Employment Laws

As business persons, most, if not all, of us have likely been confronted with employment-related issues at one time or another.  As a result, we are often called upon to quickly and effectively deal with employment issues in order to either minimize exposure or to protect an employee’s rights.  While employment attorneys and law firms which specialize in employment law are still the best resources for dealing with complicated employment related issues and claims, the following summary will provide the lay person with an overview of four employment laws which affect most employers:  The Americans With Disabilities Act of 1990 (the “ADA”); The Family and Medical Leave Act of 1993 (the “FMLA”); The Fair Labor Standards Act of 1938 (the “FLSA”); and The Pregnancy Discrimination Act (the “PDA”).

When an employee indicates that he or she has a disability, has experienced a work-related injury or suffers from an illness, and the employee requests leave from his or her employment, an employer is faced with an important consideration:  is the employee’s disability, injury or illness one which may be covered by the ADA, the FMLA the PDA, workers compensation laws or other laws or regulations?  In addition, employers should always be aware of the guidelines of the FLSA which govern rates of pay for hourly employees, overtime pay and other considerations.

1.       The Americans With Disabilities Act

The ADA, 42 U.S.C. § 12101 et seq., applies to private employers which have fifteen or more employees in twenty or more calendar weeks during the current or preceding calendar year, as well as all state and local governments.  The ADA prohibits discrimination against a “qualified individual with a “disability” (including applicants for employment) based upon a “disability.”  The ADA defines a “disability” as: 1) a physical or mental impairment which substantially limits one or more of an individual’s “major life activities”; 2) a record of such an impairment; or 3) being regarded as having such an impairment.[1]  “Major life activities” include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, speaking, learning and working.[2]  To be “substantially limited” in a major life activity, a physical or mental impairment must cause the individual to be significantly restricted from performing a major life activity that the average person can perform.[3]

The ADA prohibits discrimination against a qualified individual with a disability who can perform the essential functions of his or her job with or without “reasonable accommodation.”  Thus, the first consideration is whether the subject individual is a “qualified individual with a disability,” as defined under the ADA.  In this regard, the ADA defines a “qualified individual with a disability” as an individual with a disability who satisfies the educational requirements of a job, has the requisite level of experience for the job, and who can perform the essential functions of the job with or without reasonable accommodation.[4]  Moreover, the “essential functions” of a job are defined as those functions which the individual who holds the job must be able to perform with or without reasonable accommodation; however, a function is essential if removing the function itself would fundamentally change the job.[5]  Many of today’s ADA actions arise out of disagreements as to what reasonable accommodation(s) is/are available for disabled employees and which accommodations employers are required to make.  A full discussion of reasonable accommodation considerations is beyond the scope of this article.  However, generally, a “reasonable accommodation” can consist of any change or modification which enables an employee with a disability to take advantage of equal employment opportunities at every stage of the employment process.[6]

An employer’s duty to provide a reasonable accommodation to an employee is triggered by a qualified employee’s request for such an accommodation.  However, in determining whether an employee is a “qualified individual with a disability,” employers are permitted to require medical examinations of employees in limited situations such as: 1) to determine whether the employee can perform the essential functions of his or her job; 2) as part of the reasonable accommodation process; and 3) if the examination is job-related and consistent with business necessity.[7]  Employers should be careful in their use of medical examinations to evaluate whether an employee is a qualified individual with a disability under the ADA in order to avoid infringing upon an employee’s rights and therefore potentially exposing the employer to liability.

2.       The Family and Medical Leave Act

The FMLA, 42 U.S.C. § 12101 et seq., applies to employers engaged in interstate commerce or in any industry or activity affecting commerce, which employ fifty or more employees for each working day during each of twenty or more calendar work weeks in the current or preceding calendar year.[8]  The FMLA provides employees with a right to take unpaid leave or earned paid leave for a period of up to twelve weeks in any twelve month period due to:  (1) the employee being unable to perform his or her job because of a serious health condition; (2) the birth of a child or the placement of a child for adoption or foster care; or (3) the care of an employee’s family member (defined as a child, spouse or parent) with a serious health condition.[9]  Under the FMLA, leave time may be taken on an intermittent basis during a twelve week period or it may be taken all at one time. [10] 

Under the FMLA, an employer generally has a right to thirty days advance notice from an employee who seeks to take FMLA leave, if providing thirty days notice is practicable.[11]  The employer may also require an employee to have a physician or other healthcare provider certify that the leave to be taken is being taken for a serious health condition.  Likewise, the employer may require the employee to obtain a fitness-for-duty certificate from his or her physician or healthcare provider before being approved to return to work. [12]  An employee on FMLA leave is entitled to health benefits during the period of leave in the same manner and to the same extent as he or she would be entitled to those benefits if not on leave.[13]  Finally, upon returning from FMLA leave, an employee has the right to return to the same or equivalent position with equivalent pay, benefits and working conditions.[14]  State law is also permitted to provide more comprehensive employee coverage under the FMLA, so, in considering FMLA issues, it is important to check state statutes which may also govern FMLA leave time.

3.       The Fair Labor Standards Act

Adopted in 1938, the FLSA, 29 U.S.C. 201 et seq., sets the minimum wage rate, overtime pay, and regulates equal pay, record-keeping requirements and child labor standards.  The FLSA requires that each employee, not specifically exempted, who is engaged in commerce, or in the production of goods for commerce, or who is employed in an enterprise engaged in commerce, or in the production of goods for commerce, as well as all government employees, receives a specified minimum wage.[15]

With the exception of child labor restrictions, the FLSA does not limit the number of hours worked; however, it does require employers to pay an employee overtime pay (at a rate of one and one-half times the employee’s regular rate of pay) for all hours worked in excess of forty hours per work week.  In this regard, the FLSA dictates the manner in which an employer must provide paid and unpaid leave time for employees depending upon whether the employees are defined as being “exempt” or “non-exempt” under the FLSA.  A full discussion of the “exempt” versus “non-exempt” analysis under the FLSA is beyond the scope of this article.  However, generally, the FLSA defines “exempt” employees as those who are employed in “Executive,” “Administrative,” “Professional” or “Outside Salesperson” capacities.  Each of these exemptions to the FLSA involves extensive analysis under the FMLA, the applicable regulations from the Code of Federal Regulations which interpret the FMLA, and case law. 

The FLSA is a complex act which is subject to a great deal of interpretation and many regulations. Accordingly, there are several considerations which come into play when dealing with the requirements of the FLSA, particularly when collective bargaining agreements are also involved.  For specific questions or issues related to the FLSA, contact your employment attorney. 

4.        The Pregnancy Discrimination Act

The PDA, 42 U.S.C. § 2000e(k), applies to employers with fifteen or more employees.  The PDA provides protection for pregnant women which are similar to the protections afforded other employees who are on leave for other temporary medical conditions.  It is important to note that the PDA does not mandate leave, nor does it require employers to grant maternity leave to pregnant employees.  Rather, it entitles pregnant employees to the same leave time and benefits granted to other employees with temporary medical disabilities in order to ensure that pregnant employees are treated the same as other employees with respect to leave time.  However, in California Savings and Loan vs. Guerra, 479 U.S. 272 (1987), the U.S. Supreme Court held that a state could mandate a greater leave flexibility benefit to pregnant employees despite the fact that such a benefit was not granted to other temporarily disabled employees. [16] 

Interestingly, the FMLA regulations state that an employee’s incapacity due to pregnancy, as well as prenatal care visits, are considered “serious health conditions” under the FMLA, thereby entitling the affected employee to request leave time under the FMLA.  The PDA is subject to, and does not override, state law which governs leave time for individuals.

Conclusion

The ADA, FMLA, FLSA and PDA are four employment laws which affect most, if not all, employers.  Therefore, it is important that business owners are familiar with these laws and their basic requirements.  This article is intended only to provide a summary or overview of the ADA, FMLA, FLSA and PDA.  You should contact your employment attorney for additional questions or issues related to these and other employment laws.

Michael T. Landen, Esq. is an associate attorney at the Miami-based law firm Kluger, Peretz, Kaplan and Berlin, P.L.  Mr. Landen’s practice is in the areas of complex commercial litigation and employment law.

[1]  29 C.F.R. § 1630.2(g)

[2]  29 C.F.R. § 1630.2(i)

[3]  29 C.F.R. § 1630.2(j)

[4]  29 C.F.R. § 1630.2(m)

[5]  Smith v. Midland Brake, Inc., 138 F. 3d 1304 (10th Cir. 1998) (finding that the former employee failed to state a prima facie case of disability discrimination where the employee, by his own admission, was unable to perform the functions of his job.  The Tenth Circuit found that the employer was not required to reassign the employee to a different position as an accommodation under the ADA)

[6]  29 C.F.R. § 1630.2(o)

[7]  29 C.F.R. §§  1630.10, 1630.14(a) and (c)

[8]  29 C.F.R. § 825.104(a)

[9]  29 C.F.R. § 825.100(a)

[10]  Id.

[11]  29 C.F.R. § 825.104(d)

[12]  Id.

[13]  29 C.F.R. § 825.104(b)

[14]  29 C.F.R. § 825.104(c)

[15]  29 C.F.R. § 785.1; see also, Maryland v. Wirtz, 392 U.S. 183 (1968) (wherein the U.S. Supreme Court held that the application of federal minimum wage and overtime laws to state and local governments was constitutional). 

[16]  California Savings and Loan vs. Guerra, 479 U.S. 272 (1987)