Frequently Asked Questions About Employment Law
Q: What laws must employers follow when hiring new employees?
A: A prospective employer must avoid any illegal discrimination based on race, national origin, gender, pregnancy, age, disability or religion during the hiring process. Employers should also be sure to protect the privacy rights of applicants by protecting confidential or private information provided by the applicant and by disclosing to the applicant any background or credit checks that the employer wishes to perform. Employers are required to follow all applicable documentation rules regarding immigration and take care not to discriminate against applicants over 40 because of their age.
Q: Can employers monitor their employees' Internet usage or read their emails?
A: The Supreme Court has found that employees have very limited rights to privacy in their employers' computer systems. Employers may monitor Web sites visited by their employees and may block their employees from visiting certain Web sites. Employers can also limit employees' Internet usage to business-related Web sites. If the employer has a company policy that its computer systems are to be used only for work-related activities, it may reprimand or punish an employee who used its equipment for personal purposes. Emails are considered to be company property if they are sent using the company email system, and many employers monitor or archive all incoming and outgoing emails sent through their systems.
Q: Can employers listen in on their employees' phone conversations at work or to their voice mail messages in the company voice mail system?
A: Under the Electronic Communications Privacy Act (ECPA), an employer may monitor its employees' business-related telephone usage at work. Under the ECPA, an employer typically may not monitor an employee's personal phone calls, even those made from telephones on work premises. An employer may monitor a personal call only if an employee knows the particular call is being monitored and consents to it. The ECPA also provides that an employer may not intercept an employee's voice mail, but it may be able to access voice mail messages that are in "electronic storage."
Q: What laws regulate the wages and hours in my workplace?
A: The Fair Labor Standards Act (FLSA) is the main federal law governing minimum wage, overtime pay and child labor. It applies to most employers, including the federal government, state and local governments and most private employers. The FLSA does not regulate matters like sick time, vacations, severance pay or breaks.
Q: How can I tell if I am an independent contractor?
A: Independent contractors usually work with a business or individual on a project-by-project basis pursuant to a written contract. Businesses do not deduct federal or state taxes, social security taxes or unemployment compensation taxes from their payments to independent contractors. If you are an independent contractor, companies are not your employers; they are your clients. As clients, they are not entitled to direct your work process. They have the right, however, to set out specifications for performance, or approval may be provided for in the independent contractor agreement. Independent contractors have the right to decide where and how the project should be completed.
Q: Is it ever acceptable for an employer to consider someone's disability during the hiring process?
A: An employer may describe the qualifications necessary to perform the position but may not ask whether the prospective employee has a disability that may affect his or her ability to perform the job. If the prospective employee indicates that he or she has a disability that may require accommodation, the employer may ask what types of accommodations would allow the prospective employee to perform the essential functions of the job.
Q: How do workers go about attempting to gain union representation?
A: Qualified workers may petition the National Labor Relations Board (NLRB) to conduct a secret ballot election in the workplace to determine if union representation is desired. If the election conducted by the NLRB indicates the workers have a desire to be represented by a qualified labor representative in collective bargaining with their employer, union representatives may conduct a meeting to discuss organizing. An employer cannot interfere with any part of the union organization process.
Q: What is the difference between "at-will" employment and employment based on a contract?
A: At-will employment means that the employee can be let go at any time as long as the reason is not based on illegal discrimination or other illegal grounds. The at-will employee can also quit at any time. An employment relationship that is contractually based, however, is governed by the terms of the contract and the applicable laws. The contract may dictate the employee can only be fired for cause.
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