By: Steve Collins
How many employment laws apply to your business? Let’s count the ways, remembering this list is not exhaustive:
1.Title VII (42 U.S.C. 2000e) applies to employers with 15 or more employees. It prohibits discrimination on the basis of race, color, religion, sex or national origin and pregnancy and retaliation against an employee who pursues rights under it.
2. Federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 622) applies to employers having 20 or more employees. It prohibits discrimination on the basis of age against employees 40 or older.
3. The Federal Equal Pay Act (29 U.S.C. § 206) applies to an employer with 2 or more employees and prohibits sex discrimination with respect to wages.
4. The Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) covers employers with 15 or more employees. The Tennessee Handicapped Discrimination statute (Tenn. Code Ann. § 8-50-103) covers all employees regardless of the number of employees. Both statutes prohibit “disability discrimination.”
5. The Tennessee Human Rights Act (THRA) (Tenn. Code Ann. § 4-21-101) applies to employers having 8 or more employees. It prohibits discrimination on the basis of race, creed, color, religion, sex, age or national origin.
6. The Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601) applies to employers having 50 or more employees during 20 or more calendar work weeks in either the current or the preceding calendar year. It provides for unpaid leave. To be eligible, the employee must have been employed at least 12 months, worked 1,050 hours during the preceding 12 months, and worked at an employment site where 50 or more employees were employed by the employer within 75 miles of that site. The eligible employee receives up to 12 weeks of FMLA unpaid leave during any 12 month period. Leave can be taken for numerous situations, including the birth of a child, the placement of a child due to adoption or foster care, caring for a spouse, child or parent who has a “serious health condition” or due to the employee’s own “serious health condition.”
7. The Tennessee Maternity Leave Act, (Tenn. Code Ann. § 4-21-408) provides up to 4 months unpaid maternity leave. The law applies to employers having at least 100 full-time employees on a permanent basis at the job site where the pregnant employee works.
8. The Fair Labor Standards Act (FLSA) (29 U.S.C. § 201) is the federal wage and hour law and covers overtime. It applies to all employers regardless of the number of employees. It requires compliance with federal minimum wage requirements and requires payment of time and a half for non-exempt employees who work over 40 hours in a week. Remember “a rose by any other name would smell as sweet.” A common mistake is to conclude if an individual is paid on a “salary basis” no overtime is due. The matter is not so simple. Exploration of FLSA is beyond the scope of this article.
9. The Federal Employee Polygraph Protection Act (29 U.S.C. 2001-2009) and Tennessee’s Polygraph Act (Tenn. Code Ann. § 62-27-101) apply regardless of the number of employees.
10. The Federal COBRA Act applies to employers having 20 or more employees, but the Tennessee Act, (Tenn. Code Ann. § 56-7-2312) applies to all group medical policies issued in Tennessee regardless of the employers’ number of employees.
11. The Federal Immigration Reform and Control Act applies to all employers. The law imposes employment verification and employee identification requirements. Employees must fill out Form I-9 when they begin work. The employer must check documents establishing an employee’s identity and eligibility to work. The I-9 Form, completed, must be retained for 3 years or one year after employment ends, whichever is later. The employee must provide documentation to establish identity and employment eligibility. A Social Security card, other than when stamped “Not Valid for Employment Purposes,” will establish eligibility. Any state issued driver’s license or state-issued ID card containing a photograph will establish identity. On January 1, 2017, the Tennessee Lawful Employment Act became effective. Its requirements are outlined at https://www.tn.gov/workforce/employers/staffing-redirect/hiring-regulations/employment-verification.html
12. The Federal Uniform Services Employment and Reemployment Rights (35 U.S.C. 4301) applies regardless as to the number of employees. It provides reemployment rights and anti-discrimination protection for individuals in military service who are honorably discharged.
13. Both the Federal Occupational Safety and Health Act (OSHA) and the Tennessee Occupational Safety and Health Act (TOSHA) apply to all employers regardless of the number of employees. The Acts are supposed to serve the purpose of assuring every employee has a safe and healthful working environment.
14. Tennessee’s Employment Security Law (Unemployment) (Tenn. Code Ann. § 50-7-101) applies to any employer with at least one employee who has been employed for 20 weeks. If the employee has sufficient earnings in a “base period” to be monetarily eligible, then they will receive unemployment compensation unless employment ended due to “misconduct in connection with their work” or unless the employee “left his or her most recent work voluntarily without good cause connected with work.”
15. The Tennessee Workers’ Compensation Law, (Tenn. Code Ann. § 50-6-101) applies to employers having 5 or more employees.
16. Tennessee is “an employment at will” state. The concept generally can be stated as follows:
Absent a contract for a term of employment, an employee may be hired, fired, suspended or disciplined at any time for any reason, good or bad, or for no reason at all so long as it is not for a prohibited reason.
Over time, the “prohibited reasons” significantly eroded the doctrine. Exceptions include:
• When an employee exercises their right under any of the statutes addressed in this article.
• Tennessee Whistleblower Law. Code Ann. § 50-1-304.
• Being called to National Guard service. Code Ann. § 58-1-604.
• Voting in elections. Code Ann. § 2-1-106.
• Exercising the right of association. Code Ann. § 50-1-201.
• Wage garnishment. Code Ann. § 26-2-101.
• Filing a workers’ compensation claim. Code Ann. § 50-6-101.
• Jury duty. Code Ann. § 22-4-108.
17. The Tennessee Wage Regulation Act. Tenn. Code Ann. § 50-2-101.
• Employees laid off, fired, or who quit must be paid in full at the next regular payday, not to exceed 21 days from the date employment ended.
• Wages in private employment are payable at least semi-monthly and notice of regular paydays must be published in two conspicuous places. The requirement of paying semi-monthly applies to private employers of 5 or more employees.
• No employee’s pay can be cut with or without their approval unless the employer tells the employee before any work is performed. No employee can work without first knowing the amount of wages to be paid.
• Employers are prohibited from deducting money as a penalty or fine from the employee’s wages.
• No employer can withhold an employee’s paycheck for any reason.
• No Tennessee law regulates fringe benefits. The company or firm policies are the determining factors.
• You should have a written policy on unused vacation pay and/or personal time off (PTO) pay for ex-employees. Your policy controls. Vacation pay/PTO earned but unused does not have to be included in the final paycheck if the policy states unaccrued vacation/PTO pay will not be paid no matter the reason for separation.
• Direct deposit can be used but the choice of the financial institution is the employee’s.
18. Tenn. Code Ann. § 2-1-106 provides the employee on election day must be given “a reasonable period of time, not to exceed three (3) hours, necessary to vote during the time the polls are open in the county where the person is a resident.” The employee must request the time off before noon on election eve. If work begins three or more hours after the polls have opened or ends three or more hours before the polls close in the county where the employee is a resident, time off is not required. The employee may not “may not be subjected to any penalty or reduction in pay for such absence.”
19. Tenn. Code Ann. § 50-2-103 provides employees must have 30 minutes of unpaid rest break or meal time if scheduled to work six hours consecutively. There is an exception for a workplace environment which by its nature provides ample opportunity for taking a rest or appropriate break.
20. Tenn. Code Ann. § 50-1-305 requires employers to provide a reasonable unpaid break time each day for an employee who needs to express breast milk. Commentators have concluded that such is not necessarily designed to provide an employee with a place to actually breastfeed the child at work but rather to express breast milk for future use. The statute provides that the break may run “concurrently” with other break times. The employer is to make reasonable efforts to provide “a room at work” to take this break. The room may not be “a toilet stall.”
21. Tenn. Code Ann. § 58-1-604 states: “Discrimination: Employment. It is a Class E felony for any person, firm or corporation to refuse employment to any person for the sole reason that he [she] is a member of the Tennessee National Guard or to terminate the employment of any such person for such reason or because of absence from his [her] place of employment while attending any prescribed drill, including annual field training.” A Class E felony is punishable by a prison term of one year to six years and a fine not to exceed $6,000.00.
22. Tenn. Code Ann. §39-17-1313, known as the “guns in trunks law” allows employees, to transport and store a gun in their vehicle. It applies to a company’s parking lot if the employee is on the property legally, parked legally, and the gun and ammunition are “kept from ordinary observation.” A gun locked in the trunk is “kept from ordinary observation.” An employer of any size is prohibited from discharging or taking an adverse employment action against an employee “solely” for being in compliance with “guns in trunks.”
The laws cover your business to the depth and breadth and height the legislators can reach.
Steve Collins focuses on employment law, domestic relations and premises liability in the Knoxville office.
This blog contains general information about legal matters. The information is not advice, and should not be treated as such. Communication of information by, in, to or through this blog and your receipt or use of it: (1) is not provided in the course of and does not create or constitute an attorney-client relationship; (2) is not intended to convey or constitute legal advice; and (3) is not a substitute for obtaining legal advice from a qualified attorney.
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