How to Stay in Compliance with Employment Laws

Employment is a highly regulated relationship, and employers must familiarize themselves with a wide variety of laws affecting hiring, payroll, time off, equal employment opportunity, benefits and termination, to name a few affected areas. Charles H. Fleischer, an attorney with Oppenheimer, Fleischer & Quiggle PC in Bethesda, Md., provides an overview of these requirements in The SHRM Essential Guide to Employment Law: A Handbook for HR Professionals, Businesses and Organizations (SHRM, 2018).

The 498-page book covers mandates applying to a wide range of 439 different job-related issues, including:

--Employee privacy.

--Alternatives to overtime.

--Teleworking.

--Work visas.

--Strikes.

Employee Privacy

Invasions of privacy do not usually arise in the employment context. After all, the workplace and the equipment in it belong to the employer. When an employee is at the workplace, using the employer's equipment, he or she is supposed to be acting for the employer's exclusive benefit. Normally, there is no expectation that his or her activities are personal or private. 

But there are exceptions. For example, under the federal Electronic Communications Privacy Act (ECPA), it is illegal to intentionally intercept a wire, oral or electronic communication. The ECPA prohibition does not apply when one of the parties to the conversation has consented to an intercept. Many states have enacted laws similar to the ECPA. However, unlike the ECPA, which is a one-party consent statute, some states have two-party consent statutes.

Alternatives to Overtime

There is an exception to the rule that compensatory time in workweek two does not satisfy the employer's obligation for overtime in workweek one—the so-called time-off plan, the author notes. Suppose an employer pays its employees every other week. If a nonexempt salaried employee works overtime in workweek one, the employer can give the employee time off in workweek two at the rate of 1.5 hours for each hour of overtime worked in the first workweek, the handbook states. By paying the employee the regular salary for both workweeks, the employer fully satisfies its overtime obligation. But a time-off plan for salaried employees works only if the employer's pay period is longer than one workweek and if overtime occurs in the first workweek.

Teleworking

Fleischer recommends that employers trying teleworking for the first time:
--Choose no more than half of those eligible as participants. That way, a control group is retained to compare such things as productivity, turnover and job satisfaction.

--Require nonexempt employees to maintain an accurate log of hours worked for Fair Labor Standards Act purposes. An employee who was nonexempt before he or she began teleworking continues to be nonexempt while telecommuting.

Work Visas

The handbook notes that immigration laws authorize several categories of temporary work visas, including:
--B-1, for foreigners in the United States on business for the benefit of, and on the payroll of, their foreign employers.

--H-1B, for foreign professionals.

--H-2B, for foreign skilled and unskilled workers.

--L, for intracompany transferees.

--O, for foreign nationals with extraordinary ability in the sciences, the arts, education, business or athletics.

--TN, for professionals who are citizens of Canada or Mexico.

Strikes

An employer cannot hire foreign workers on H-1B visas as replacements for economic strikers because the employer must certify in its H-1B application that there is no strike in progress involving the job to be filled. A TN visa also may be denied if the secretary of labor certifies that issuance of the visa may adversely affect settlement of a labor dispute, the handbook also states.

The handbook provides readers with a broad understanding of employer-employee legal relations, identifies where most of the liability dangers lurk and alerts readers to situations in which professional advice may be needed.

Allen Smith, J.D., is manager of workplace law content at SHRM.