The prohibitions on discrimination in the workplace are firmly entrenched in American law. Discrimination occurs when employees are treated differently than similarly situated co-workers because they belong to a “protected category,” including decisions that affect hiring, discharge, compensation, promotion, training, apprenticeship or other terms, conditions or privileges of employment. Protected categories under federal law include, for example, race, color, national origin, sex (including pregnancy status), age, disability, military status, religion and genetic information (including family medical history).
Federal anti-discrimination laws set the floor for workplace protections but not the ceiling. This means that these federal protections and constraints are applicable in all 50 states and U.S. territories, but the states and territories are free to extend even more protections to the employees within their respective borders and can adopt additional protected categories not found in federal law. For instance, while sexual orientation is not a protected category under federal law, it is protected under the anti-discrimination laws of 35 of the states. It is important, therefore, that an employer familiarize itself with the scope of the anti-discrimination laws of each state in which it has employees.
In the United States, discrimination is generally proved by employees under one or both of the following theories: disparate treatment or disparate impact. In a disparate treatment claim, the employee alleges that the employer engaged in intentional discrimination, i.e., that the employer took adverse action against the employee because of his or her membership in a protected category. Proof of discriminatory motive is critical in a disparate treatment case, although it may often be inferred from the conduct of the employer. On the other hand, disparate impact cases do not require proof of discriminatory motive or intent; rather, an employer’s facially neutral policy or practice may still be unlawful if it has a significant adverse impact on a protected group and is not justified by business necessity.
Disparate impact cases are often pursued as class actions, meaning that the lawsuit is filed on behalf of every employee allegedly victimized by the policy or practice at issue. For example, employees in the age protected category have challenged workplace lifting requirements in the past in class actions, alleging that while on the surface the requirement appears to be neutral, it actually has the effect of disproportionately disqualifying those in the protected age category from holding the job. In such cases, the employees allege alternative business practices are available to the employer that would achieve the same business objectives without disparately impacting those in the protected category.
Further details about protection against discrimination are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at firstname.lastname@example.org
U.S. discrimination laws also prohibit harassment in the workplace based on any protected category. Harassment is unwelcome conduct – physical, verbal or nonverbal – that is offensive to both the recipient and to a “reasonable person” and creates an intimidating, hostile, or offensive work environment. Harassment is unlawful when it is based on or directed at an individual’s status as a member of a protected category, such as age, gender, religion, race or national origin.
Generally, there are two types of harassment. Economic harassment occurs when a manager’s harassment results in a “tangible employment action.” The employment action may be either positive or negative, such as granting a promotion in exchange for accepting sexual requests or demoting an employee who refuses such requests. This form of harassment nearly always involves a manager or supervisor abusing supervisory power and an employer is strictly liable (i.e., automatically liable) for such harassment because the actions of the manager are considered actions of the employer itself.
The second type of harassment, environmental harassment, involves behavior which an employee finds offensive, even though there is no tangible employment action. The harassing conduct must interfere with the employee’s work by creating an intimidating, hostile, or offensive work environment. Slurs, jokes, graffiti, suggestive remarks, stalking, threatening, or other such activity are examples of conduct that typically may constitute environmental harassment. To be actionable, the conduct must be “severe or pervasive.” Isolated incidents typically do not rise to the level of a hostile work environment, although a single incident – if sufficiently severe – may create a hostile work environment.
Further details about prohibitions against harassment are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at email@example.com
C. Whistleblowers and Retaliation
There is no general federal statute that protects whistleblowers from retaliation. Such provisions, if they exist at all, are contained within each federal law to which they apply. For example, federal (and state) discrimination laws prohibit retaliation against employees who file employment discrimination charges or assist others to file them, and who oppose unlawful employment practices. Employees must demonstrate that (a) they engaged in a “protected activity” (such as filing a charge of discrimination or complaining to their manager about the same); (b) a negative or adverse action by the employer was taken against them, such as a demotion or a termination; and (c) a causal relationship exists between the first two elements. Under the discrimination statutes, the negative or adverse action does not have to be an “ultimate” employment decision, such as a termination or decrease in pay. Illegal retaliation occurs whenever the adverse conduct or harm would discourage a “reasonable employee” from making a discrimination complaint.
Further details about retaliation are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at firstname.lastname@example.org
D. Workplace Safety
Employee safety is generally protected by the Occupational Safety and Health Act (“OSH Act”). The primary purpose of the OSH Act is to ensure that employers provide employees with an environment free from recognized hazards, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions. The Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, is responsible for enforcing the Act (with the partnership of authorized “state plan” agencies). OSHA standards describe the methods that employers must use to protect their employees from hazards. OSHA provides standards for construction work, maritime operations, and general industry standards that apply to most worksites. Such standards limit the amount of hazardous chemicals workers can be exposed to, require the use of certain safe practices and equipment, and require employers to monitor hazards and keep records of workplace injuries and illnesses. In addition to compliance with specific standards, employers also face a “general duty” to provide safe and healthy working conditions (a broad concept that OSHA uses in bringing enforcement actions in a variety of circumstances).
For example, OSHA standards require employers to prevent infectious diseases and exposure to harmful substances like asbestos, put guards on machines, provide respirators or other safety equipment such as fall protection gear, and give training on certain dangerous jobs. OSHA also requires employers to keep certain records and to provide notices, such as when an employee dies as a result of a work accident or three or more employees are hospitalized as a result of a work-related incident. Under the OSH Act, employees have the right to receive information and training safety; review records of work-related injuries and illnesses; get copies of their medical records; request OSHA to inspect their workplace; and use their rights under the law free from retaliation and discrimination.
There is no general federal law that regulates privacy in the workplace. Moreover, privacy, itself, has many meanings in the broad contours of an employment relationship. For purposes of incoming or start-up companies in the United States, discussed below are the key privacy concerns which must be addressed.
1. Monitoring Employees in the Workplace
“Privacy in the workplace” is most easily understood in the context of monitoring an employee’s work. Though an employer is free to monitor employees in public areas of the worksite (subject to certain restrictions on the method used, e.g., video surveillance that also captures audio could create liability under federal wiretap and stored communications acts), this right diminishes in areas where an employee may have a “reasonable expectation of privacy,” such as a locker room or restroom.
The developments in technology and the internet have complicated the issues of privacy. Communications in the United States are protected under the federal Wiretap Act which initially prohibited the interception of telephone communications. The Act was modified in 1986 by the Electronic Communications Protection Act (ECPA), which expanded the Wiretap Act into two sections: the Wiretap Act that protects communications in transit by phone or other electronic means and the Stored Communications Act which protects stored electronic communications.
2. Employee Data
“Privacy in the workplace” is also often associated with the confidentiality of employee data. With the rise in identity theft, many states have passed data security statutes. These statutes often limit the use and disclosure of certain employee-identifying information (such as Social Security numbers) and impose notification requirements if company databases containing personal information about employees are breached (for example by a hacker who takes information with employee Social Security numbers, or an employee who leaves a disk with personnel or records in a taxicab). These state laws generally require the company to notify all affected individuals. Unlike countries in the European Union and elsewhere, there is no general federal law that protects an employee’s personal information. The closest federal law is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA imposes national standards for electronic health care transactions. Certain other employment laws, relating to disability status and protected leaves linked to medical conditions, have other provisions dealing with employer obligations to closely control and maintain employee health information.
Further details about workplace privacy protections are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at email@example.com
For the latest developments in workplace privacy, please visit Littler’s Workplace Privacy Counsel site.
F. Dismissal and Severance
The obligations of an employer at the time it discharges an employee (or an employee resigns) are simpler in the United States than in many countries around the world. Generally, employers have no obligation to provide employees any notice prior to a termination or to give the employee any severance benefits (i.e., compensation related to the termination of the employment relationship), unless the employer agreed to do so in a contract. Indeed, employers are only obligated to pay, on or near the last day of employment, those wages or benefits which the employee has already accrued or earned. Notably, whether benefits are deemed earned and payable is governed by state law, as is the timeline for final payments, which can range from immediate payment to payment no later than the next regular payday or within 6 days of termination.
Employers need only give employees advance notice of the decision to terminate their employment in a limited set of circumstances. For example, advance notice is required where the termination qualifies under federal law as a mass layoff or plant closing.
Further details about dismissal and severance are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at firstname.lastname@example.org
G. Collective Bargaining
Collective bargaining in the United States is not as widespread as in other areas of the world. Indeed, the number of individuals represented by unions in the United States has dropped from its highest point in 1945 at approximately 36% of the workforce to approximately 12% in 2009. Only 7.2% of the private sector is unionized. Moreover, the United States has no statutory regulations that require the establishment of employee representative bodies similar to the works councils in the European Union nor are there any industry-wide sectoral collective agreements. Indeed, there are no regulations in the United States that require collective representation or consultation.
Instead, the National Labor Relations Act (NLRA), a federal statute passed in 1935, governs and protects the rights of employees in the private sector who choose to organize themselves into unions to bargain collectively with their employers.
Further details about collective bargaining are provided in Littler’s Start-Up Guide for Foreign Employers in the United States; to request a copy, please contact Susan Woodhouse at email@example.com