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| November 9, 2008 DOL Home > elaws Advisors > FirstStep Employment Law Advisor |
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Basic Overview of LawsResults
Based on the information you provided in response to the questions in the Advisor, the following employment laws administered by the Department of Labor (DOL) likely apply to your business or organization. Please note that the Advisor covers only the major employment laws administered by DOL. In addition, the Advisor does not identify laws administered by other federal agencies that might be applicable to your business or organization.
In addition to posters of general application, certain organizations may be required to display posters that can only be obtained from DOL's Office of Workers' Compensation Programs (OWCP). More information on these posters is available. Links to federal employment posters are always available on the Poster Page. Please note that some localities have workplace poster requirements, as do some other federal agencies such as the Department of Housing and Urban Development which requires certain businesses to post its Equal Housing Opportunity poster. Note that Governmental retirement and health plans are not subject to Title I of ERISA. Generally, a governmental plan means a plan established or maintained for its employees by the Government of the United States, by the government of any state or political subdivision thereof, or by any agency or instrumentality of the foregoing. A governmental plan also includes any plan to which the Railroad Retirement Act of 1935 or 1937 applies and which is financed by contributions required under that act. It also includes any plan of an international organization which is exempted from taxation under the International Organizations Immunities Act. Federal government plans may be subject to similar provisions. For more information see U.S. Office of Personnel Management. Nonfederal governmental plans (e.g., state and local) may be subject to provisions in the Public Health Service Act. For more information see U.S. Department of Health and Human Services (HHS). Thank you for using the Department of Labor's FirstStep Employment Law Advisor. Please return to the beginning of this Advisor if you want to check the requirements for another establishment. Title III, Consumer Credit Protection Act (CCPA) Who is CoveredTitle III of the Consumer Credit Protection Act (CCPA) protects employees from discharge by their employers because their wages have been garnished for any one debt, and it limits the amount of an employee's earnings that may be garnished in any one week. Title III applies to all employers and individuals who receive earnings for personal services (including wages, salaries, commissions, bonuses, and income from a pension or retirement program, but ordinarily not including tips). Basic Provisions/RequirementsTitle III of the Consumer Credit Protection Act (CPPA) is administered by the Wage and Hour Division (WHD) of the Department of Labor's Employment Standards Administration. The Wage and Hour Division has no authority with regard to garnishments, other than protecting the employee from being fired in certain circumstances and limiting the amount being garnished. Wage garnishment occurs when an employer withholds the earnings of an individual for the payment of a debt as the result of a court order or other equitable procedure. Title III prohibits an employer from discharging an employee because his or her earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it. Title III does not, however, protect an employee from discharge if the employee's earnings have been subject to garnishment for a second or subsequent debt. Title III also protects employees by limiting the amount of earnings that may be garnished in any workweek or pay period to the lesser of 25 percent of disposable earnings or the amount by which disposable earnings are greater than 30 times the federal minimum hourly wage prescribed by Section 6(a)(1) of the Fair Labor Standards Act of 1938. This limit applies regardless of how many garnishment orders an employer receives. The federal minimum wage is $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009. In court orders for child support or alimony, Title III allows up to 50 percent of an employee's disposable earnings to be garnished if the employee is supporting a current spouse or child, and up to 60 percent if the employee is not doing so. An additional five percent may be garnished for support payments over 12 weeks in arrears. The restrictions noted in the preceding paragraph do not apply to such garnishments. "Disposable earnings" is the amount of earnings left after legally required deductions (e.g., federal, state and local taxes, Social Security, unemployment insurance, and state employee retirement systems) have been made. Deductions not required by law (e.g., union dues, health and life insurance, and charitable contributions) are not subtracted from gross earnings when the amount of disposable earnings for garnishment purposes is calculated. Title III specifies that garnishment restrictions do not apply to bankruptcy court orders and debts due for federal and state taxes. Nor do they affect voluntary wage assignments, i.e., situations where workers voluntarily agree that their employers may turn over a specified amount of their earnings to a creditor or creditors. There are no poster, notice, recordkeeping or reporting requirements under Title III of the Consumer Credit Protection Act. Compliance Assistance AvailableThe Department of Labor provides employers, workers and others with clear and easy-to-access information and assistance on how to comply with the Consumer Credit Protection Act. Compliance assistance related to the Act — including Employment Law Guide: Wage Garnishment, Federal Wage Garnishment Law Fact Sheet, and regulatory and interpretive materials — is available on the Compliance Assistance "By Law" Web page. Relation to State, Local, and Other Federal LawsIf a state wage garnishment law differs from Title III, the employer must observe the law resulting in the smaller garnishment, or prohibiting the discharge of an employee because his or her earnings have been subject to garnishment for more than one debt. Penalties/SanctionsViolations of Title III may result in reinstatement of a discharged employee, payment of back wages, and restoration of improperly garnished amounts. Where violations cannot be resolved through informal means, the Department of Labor may initiate court action to restrain violators and remedy violations. Employers who willfully violate the discharge provisions of the law may be prosecuted criminally and fined up to $1,000, or imprisoned for not more than one year, or both. DOL ContactsEmployment Standards Administration (ESA),
Wage and Hour Division Employee Polygraph Protection Act of 1988 (EPPA) Who is CoveredThe Employee Polygraph Protection Act (EPPA) applies to most private employers. The law does not cover federal, state, and local governments. The law does apply to most private employees who contract with governmental entities. Basic Provisions/RequirementsThe Employment Standards Administration's Wage and Hour Division (WHD) enforces the EPPA. The EPPA prohibits most private employers from using lie detector tests, either for pre‑employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers. Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer. Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test. Notices/PostersPoster. Every employer subject to EPPA (whether prohibited or permitted to conduct polygraph tests) shall post and keep posted on its premises a notice explaining the Act. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment. There is no size requirement for the poster. The EPPA poster is available in English and Spanish. Posting of the EPPA poster in Spanish is optional. Notices. There are some notices that must be given to examinees and examiners in instances where polygraph tests are permitted: When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:
Every employer who requests an employee or prospective employee to submit to a polygraph examination, pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions, must provide:
Employers must also provide written notice to the examiner identifying the persons to be examined. RecordkeepingIn the limited instances where EPPA permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted). Records to be kept include:
All exempt private sector employers and polygraph examiners retained to administer examinations to persons identified by employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the Secretary of Labor or an authorized representative such as from the Wage and Hour Division. ReportingThere are no reporting requirements under EPPA. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Employee Polygraph Protection Act. Compliance assistance related to the Act — including Employment Law Guide - Lie Detector Tests, Employee Polygraph Protection Act (EPPA) Fact Sheet, and regulatory and interpretive materials — is available on the Compliance Assistance "By Law" Web page. Relation to State, Local, and Other Federal LawsThe law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests. Penalties/SanctionsThe Secretary of Labor can bring court action to restrain violators and assess civil money penalties up to $10,000 per violation. An employer who violates the law may be liable to the employee or prospective employee for legal and equitable relief, including employment, reinstatement, promotion, and payment of lost wages and benefits. Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an Administrative Law Judge. If dissatisfied with the Administrative Law Judge's decision, such person may request a review of the decision by the Secretary of Labor. Final determinations on violations are enforceable through the courts. DOL ContactsEmployment Standards Administration (ESA),
Wage and Hour Division Fair Labor Standards Act of 1938 (FLSA), as amended Who is CoveredThe Fair Labor Standards Act (FLSA) establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 100 million workers, both full‑time and part‑time, in the private and public sectors. The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business). However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally, or physically disabled or gifted; preschools, elementary, and secondary schools and institutions of higher education; and federal, state, and local government agencies. Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods. The Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,300 (2001) in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. An enterprise that was covered by the Act on March 31, 1990, and that ceased to be covered because of the increase in the annual dollar volume test to $500,000, as required under the 1989 amendments to the Act, continues to be subject to the overtime pay, child labor, and recordkeeping requirements of the Act. The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions alone. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for each by contacting their local Wage and Hour Division office within the Department of Labor’s Employment Standards Administration (ESA). The following are examples of employees exempt from both the minimum wage and overtime pay requirements:
The following are examples of employees exempt from the overtime pay requirements only:
Certain employees may be partially exempt from the overtime pay requirements. These include:
Basic Provisions/RequirementsThe Employment Standards Administration’s Wage and Hour Division administers and enforces FLSA with respect to private employment, state and local government employment, and federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and Tennessee Valley Authority. The Act requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009. Youths under 20 years of age may be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment with an employer. Employers may not displace any employee to hire someone at the youth minimum wage. Employers may pay employees on a piece‑rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate. Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other conditions. The Act also permits the employment of certain individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:
The Act does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old. Similarly, the Act does not limit the number of hours of overtime that may be scheduled. However, the Act requires employers to pay covered employees not less than one and one‑half times their regular rates of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor's regulations. Most of this data is the type that employers generally maintain in ordinary business practice. The Act prohibits performance of certain types of work in an employee's home unless the employer has obtained prior certification from the Department of Labor. Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to provide written assurances to the Department of Labor that they will comply with the Act's wage and other requirements, among other things. The Act generally prohibits manufacture of women's apparel (and jewelry under hazardous conditions) in the home except under special certificates that may be issued when the employee cannot adjust to factory work because of age or disability (physical or mental), or must care for a disabled individual in the home. Special provisions apply to state and local government employment. It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act. The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions. Notices/PostersEvery employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish, Russian and in Chinese. There is no requirement to post the poster in languages other than English. Covered employers are required to post the general Fair Labor Standard's Act poster; however, certain industries have posters designed specifically for them. Agricultural Employees (PDF) and State & Local Government Employees (PDF) can either post the general Fair Labor Standards Act poster or their specific industry poster. There are also posters for American Samoa (PDF) and Northern Mariana Islands (PDF). Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster. RecordkeepingEvery employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered, nonexempt worker. There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements under the FLSA. Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. ReportingThe FLSA does not contain any specific reporting requirements, however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available to help you comply with the Act are:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law” Web page and the Wage and Hour Division Home Page. Relation to State, Local, and Other Federal LawsState laws also apply to employment subject to this Act. When both this Act and a state law apply, the law setting the higher standards must be observed. Penalties/SanctionsThe Department of Labor uses a variety of remedies to enforce compliance with the Act's requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees. Willful violators may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,000 per violation. When the Department of Labor assesses a civil money penalty, the employer has the right to file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final. The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act. DOL ContactsEmployment Standards Administration (ESA),
Wage and Hour Division Fair Labor Standards Act of 1938 (FLSA), as amended Who is CoveredPlease see the Fair Labor Standards Act (FLSA) section above for an explanation of coverage under the Act. The child labor provisions of the Fair Labor Standards Act are designed to protect the educational opportunities of youths and to prohibit their employment in jobs and under conditions detrimental to their health and well‑being. While 16 is the minimum age for most nonfarm work, youths aged 14 and 15 may work outside of school hours in certain occupations under certain conditions. They may, at any age: deliver newspapers; perform in radio, television, movies, or theatrical productions; work for their parents in their solely owned nonfarm businesses (except in mining, manufacturing, or in any other occupation declared hazardous by the Secretary); or gather evergreens and make evergreen wreaths. Basic Provisions/RequirementsThe Employment Standards Administration’s Wage and Hour Division administers and enforces FLSA with respect to private employment, state and local government employment, and federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and Tennessee Valley Authority. Please see the FLSA section above for an explanation of all minimum wage and overtime requirements of the Act. The child labor provisions include restrictions on hours of work and occupations for youths under age 16. These provisions also set forth 17 hazardous occupations orders for jobs that the Secretary has declared too dangerous for those under age 18 to perform. The Act prohibits the interstate shipment of goods produced in violation of the child labor provisions. It is also a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act. The permissible jobs and hours of work, by age, in nonfarm work are as follows:
Detailed information on the occupations determined to be hazardous by the Secretary is available from the local Wage and Hour Division offices of the Department of Labor's Employment Standards Administration. Notices/PostersPlease see the FLSA section above for an explanation of the FLSA poster requirements. RecordkeepingEvery employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered, nonexempt worker. There is no required form for the records, but the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic records that an employer must maintain:
For a listing of the basic records that an employer must maintain, see the FLSA Recordkeeping Fact Sheet. Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years (i.e., time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages). Employers who employ full-time students under the FLSA's subminimum wage provision must also keep the records. Prior to paying an employee the subminimum wage, as allowed under certain provisions of the FLSA, employers may have to apply for a certificate from the U. S. Department of Labor. See the form instructions page for additional information. There are three different kinds of applications that may be used to apply for authority to pay full-time students subminimum wages under section 14(b):
Completed applications should be forwarded to: U. S. Department of Labor Phone: 1-312 596-7195 ReportingThe records referenced above must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Fair Labor Standards Act. Among the many resources available to help you comply with the Act are:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law” Web page. Relation to State, Local, and Other Federal LawsMany states have child labor laws. When both this Act and a state law apply, the law setting the higher standards must be observed. Penalties/SanctionsEmployers are subject to a civil money penalty of up to $11,000 ($10,000 for violations occurring prior to January 7, 2002) per worker for each violation of the child labor provisions. When a civil money penalty is assessed, employers have the right to file an exception to the determination within 15 days of receipt of the notice of such penalty. When an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. Either party may appeal the decision of the Administrative Law Judge to the Secretary of Labor. If an exception is not timely filed, the penalty becomes final. The Act also provides for a criminal fine of up to $10,000 upon conviction for a willful violation. For a second conviction for a willful violation, the Act provides for a fine of not more than $10,000 and imprisonment for up to six months, or both. The Secretary may also bring suit to obtain injunctions to restrain persons from violating the Act. DOL ContactsEmployment Standards Administration (ESA),
Wage and Hour Division Family and Medical Leave Act of 1993 (FMLA) Who is CoveredThe Family and Medical Leave Act (FMLA) provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families. The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50 employee" test. Title II of FMLA covers most federal employees, who are subject to regulations issued by the Office of Personnel Management. To be eligible for FMLA leave, an individual must (1) be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; (2) have worked at least 12 months (which do not have to be consecutive) for the employer; and (3) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. Basic Provisions/RequirementsThe Employment Standards Administration's, Wage and Hour Division administers and enforces FMLA for all private, state and local government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress. The Family and Medical Leave Act was amended on January 28, 2008. The Act now permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” Additional information and a copy of Title I of the FMLA, as amended, are available on the Wage and Hour Web page. The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons:
If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Usually, an employee may elect (or the employer may require) the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave. Employees may take FMLA leave in blocks of time less than the full 12 weeks on an intermittent or reduced leave basis when medically necessary. Taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth and care of a child is also subject to the employer's approval except for pregnancy-related leave that would be leave for a serious health condition. When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide such notice as soon as possible. An employer may require medical certification of a serious health condition from the employee's health care provider. An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness‑for‑duty" certification upon return to work in appropriate situations. An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.). The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but the employer must return him or her to employment with the same benefits at the same levels as existed when leave began. Notices/PostersPoster. All covered employers are required to display and keep on display a poster prepared by the Department of Labor summarizing the major provisions of the FMLA and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it and at all locations even if there are no eligible employees. Although there is no particular size requirement, the poster and all the text must be large enough to be easily read. The FMLA poster is available in English and Spanish. If the employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer is responsible for providing the notice in a language in which the employees are literate. Notices. When covered employers have written guidance to employees concerning employee benefits or leave rights, such as employee handbooks, information concerning FMLA entitlements and employee obligations must be included in the handbook or other document. Employers may incorporate a copy of the FMLA Fact Sheet No. 28 from the Wage and Hour Division into their employer handbooks or written policies. If the employer does not have written policies, manuals or handbooks, the employer is required to provide employees with written guidance concerning all of the employee’s rights and obligations under FMLA. Employers may duplicate and provide copies of FMLA Fact Sheet No. 28 to provide the guidance. Employers are required to provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations when an employee gives notice of the need for FMLA leave. The employer must also give notice of whether the employee is an "eligible" employee as soon as possible. The written notice must be provided in a language in which the employee is literate. This notice should be provided to the employee within a reasonable time after the employee gives notice of the need for FMLA leave, within one or two business days, if feasible. WHD makes available a Prototype Notice (Form WH-381) which employers may adapt for their use to meet these specific notice requirements. The written notice must include information:
The specific notice may include other information such as whether the employer will require periodic reports of the employee’s status and intent to return to work, but is not required to do so. Where applicable, the written notice must be provided to the employee no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave (if FMLA leave is taken during the six-moth period). Employers should mail the notice to the employee at their address if the leave has already started. If the specific information provided by the notice changes with respect to a subsequent period of FMLA leave during the six-month period, the employer must provide written notice referencing the prior notice and setting forth any of the information that has changed. This notice of changes should be provided within one or two business days of receipt of the employee's notice of need for leave. If the employer is requiring medical certification or a "fitness-for-duty" report, written notice of the requirement must be given with respect to each employee notice of a need for leave. Subsequent written notification is not required if the information in the initial notice clearly provides that medical certification or a “fitness-for-duty” report will be required, the notification is provided in the six month period, and written guidance is included in the employer handbook or other written documents describing the employer's leave policies. Where subsequent written notice is not required, at least oral notice must be provided. If the employer fails to provide notice, the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice. RecordkeepingIn keeping with the recordkeeping requirements of the Fair Labor Standards Act (FLSA), employers are required to make, keep, and preserve records pertaining to their obligations under FMLA. The FMLA does not require that employers keep their records in any particular order or form, or revise their computerized payroll or personnel records systems to comply. Employers must keep the records for no less than three years and make them available for inspection, copying, and transcription by DOL representatives upon request. Records kept in computer form must be made available for transcription and copying. Covered employers who have eligible employees must maintain records that must disclose the following:
In addition, covered employers who have eligible employees must also maintain records detailing:
Records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, are required to be maintained as confidential medical records in separate files/records from the usual personnel files. If the Americans with Disabilities Act (ADA) applies, then these records must comply with the ADA confidentiality requirements. However, there are exceptions that take into account the need for supervisors, managers, first aid & safety personnel; and government officials to have access to this information. ReportingThere are no reporting requirements under FMLA. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Family and Medical Leave Act. Among the many resources available to help you comply with the Act are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law” Web page. Relation to State, Local, and Other Federal LawsA number of states have family leave statutes. Nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee, and employers must comply with the more beneficial provision. Under some circumstances, an employee with a disability may have rights under the Americans with Disabilities Act. Penalties/SanctionsEmployers are required to post a notice for employees outlining the basic provisions of FMLA and are subject to a $100 civil money penalty per offense for willfully failing to post such notice. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave. Employees and other persons may file complaints with the Employment Standards Administration (usually through the nearest office of the Wage and Hour Division). The Department of Labor may file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Employees also have private rights of action, without involvement of the Department of Labor, to correct violations and recover damages through the courts. DOL ContactsEmployment Standards Administration (ESA),
Wage and Hour Division Uniformed Services Employment and Reemployment Rights Act (USERRA)
Who is CoveredThe Uniformed Services Employment and Reemployment Rights Act (USERRA) was signed on October 13, 1994. The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services." Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size. Basic Provisions/RequirementsThe Veterans’ Employment and Training Service (VETS) enforces USERRA. The pre-service employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria:
USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training. Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA. USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy's nuclear power program are required to serve six years). Notices/PostersEmployers are required to provide to persons covered by USERRA, a notice of the rights, benefits and obligations of the employees and workers under USERRA. Employers may provide the notice of “Your Rights Under USERRA” by posting it where employer notices are customarily placed, by mailing it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.
RecordkeepingThere are no required records under USERRA. ReportingThere are no required reports under USERRA. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Uniformed Services Employment and Reemployment Rights Act. Among the many resources available to help you comply with the Act are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law” Web page. Relation to State, Local, and Other Federal LawsUSERRA does not preempt state laws providing greater or additional rights, but it does preempt state laws providing lesser rights or imposing additional eligibility criteria. Penalties/SanctionsA court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for "willful" violations. DOL Contacts
Veterans’ Employment and Training Service (VETS) Whistleblower Protection Provisions The Occupational Safety and Health Administration (OSHA) administers the employee protection (or "whistleblower") provisions of sixteen statutes. Who is CoveredUnder the Occupational Safety and Health Act (OSH Act), employees who believe that their employer has discriminated or retaliated against them for raising or reporting safety or health concerns may file a complaint with the Occupational Safety and Health Administration (OSHA). Under the Surface Transportation Assistance Act (STAA), employees in the trucking industry may file complaints with OSHA if they believe that their employer has discriminated against them for reporting safety concerns or for refusing to drive under dangerous circumstances or in violation of safety rules. Similarly, under the other statutes, employees also may file complaints with OSHA if they believe that their employer has discriminated against them for reporting protected safety concerns involving the airline or pipeline industries, for reporting protected environmental concerns including asbestos in schools, or for reporting potential securities fraud. The Department of Labor also enforces the anti-retaliation provisions of several other statutes that are not administered by OSHA. Information concerning many of these additional anti-retaliation statutes is available in other sections of the Advisor describing the statutes enforced by different Department agencies, such as the Fair Labor Standards Act, Employee Retirement Income Security Act and the Federal Mine Safety and Health Act. Please return to the list of laws for additional information. Basic Provisions/RequirementsThe Occupational Safety and Health Administration administers and enforces the whistleblowing provisions of the OSH Act and the fifteen other statutes. Generally, the employee protection provisions listed above prohibit an "employer" or any "person" (the definition of which may vary from statute to statute) from discharging or otherwise discriminating against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee engaged in specified "protected" activities. The protected activities typically include: (1) initiating a proceeding under, or for the enforcement of, any of these statutes, or causing such a proceeding to be initiated; (2) testifying in any such proceeding; (3) assisting or participating in any such proceeding or in any other action to carry out the purposes of these statutes; or (4) complaining about a violation. The Energy Reorganization Act of 1974 (ERA), the Wendell H. Ford Aviation Investment and Reform Act (AIR21), the Sarbanes-Oxley Act (SOA), and the Pipeline Safety Improvement Act (PSIA) specifically cover an employee's internal complaints to his or her employer, and it is the Secretary's position, as set forth in regulations, that employees who express safety or quality assurance concerns internally to their employers are protected under the other whistleblower statutes. With the exception of the Fifth Circuit, the courts of appeals that have considered whether internal complaints are protected have agreed with the Secretary. Notices/PostersThere are no recordkeeping, reporting, poster, or other notice requirements for employers under the Whistleblower Protection provisions administered and enforced by OSHA. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Whistleblower Protection provisions. Compliance assistance related to the Act, including:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law” Web page. Relation to State, Local, and Other Federal LawsThe Supreme Court has held that the employee protection provisions of the ERA do not preempt existing state statutes and common law claims. The other statutes listed above should be consulted separately to determine whether or not their employee protection provisions are supplementary to protection provided by state laws. Penalties/SanctionsUpon receipt of a timely complaint, OSHA notifies the employer and, if conciliation fails, conducts an investigation. Where OSHA finds that complaints filed under the OSH Act, the AHERA, and the ISCA have merit they are referred to the Solicitor's Office for legal action. Complaints under these three statutes found not to have merit will be dismissed. Where OSHA finds a violation after investigating complaints under the other statutes listed above, it will issue a determination letter requiring the employer to pay back wages, reinstate the employee, reimburse the employee for attorney's and expert witness fees, and take other steps to provide necessary relief. Complaints found not to have merit will be dismissed. Parties who object to OSHA's determinations under the statutes listed above (except for the OSH Act, the AHERA, and the ISCA) may request a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ). Judges' decisions are reviewed by the Department of Labor's Administrative Review Board, which the Secretary has designated to issue final agency decisions. Under the STAA, if OSHA finds in favor of the employee, litigation usually is conducted by the Solicitor's Office, but sometimes by the employee. Under the other statutes, litigation generally is conducted by the private parties themselves. Employers and employees may seek judicial review of an adverse ARB decision. Under the AIR21, the SOA, and the PSIA, employees who file complaints frivolously or in bad faith may be liable for attorney's fees up to $1,000. DOL ContactsOccupational Safety and Health Administration (OSHA) |
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