Excerpted from Lexology By Ogletree Deakins


What are the requirements relating to advertising positions?

Generally, there is no standard procedure relating to advertising for jobs (although discrimination laws apply to job advertising). Some employers may have an affirmative action plan (either voluntarily or as required by a court order) in place that requires them to follow certain rules in order to comply with the plan. Employers with collective bargaining agreements may have bargained job posting procedures in place that they must follow to comply with the agreement. Other employers may have their own internal and external recruiting policies and procedures in place which should be followed consistently.

Federal contractors obligated under the Vietnam Era Veterans’ Readjustment Assistance Act, as amended by the Jobs for Veterans Act, are required by regulation to post open positions with an appropriate employment service delivery system.

Background checks

What can employers do about background checks and inquiries in relation to the following:

(a) Criminal records?

Federal law does not prohibit employers from asking about applicants’ criminal history. However, state and local laws may prohibit or regulate such checks and so-called “Ban the Box” legislation has been enacted to prohibit employers from including, on an initial employment application, a box that applicants must check if they have a prior criminal conviction. Also, federal equal employment opportunity laws prohibit employers from discriminating when they use criminal history information —that is, an individual cannot be completely prohibited from employment because of an unrelated minor criminal offense in the distant past. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act 1964.

(b) Medical history?

The Genetic Information Non-discrimination Act of 2008 prohibits employers and health insurers from discriminating based on genetic information, including family medical history. Medical history inquiries are also regulated by the Family and Medical Leave Act and the Americans with Disabilities Act. State and local laws may provide broader coverage than the Genetic Information Non-discrimination Act.

(c) Drug screening?

Private employers generally may test job applicants and employees for drugs, alcohol and other controlled substances. Several states have enacted statutes or regulations that restrict these tests, including with respect to medical and recreational marijuana.

Before testing anyone, an employer should establish and follow reasonable testing procedures and policies. Employers in specific industries (e.g., transportation) and employers that do business with certain government agencies may be required by federal law to establish a drug-free policy and, in some cases, to test applicants and employees for the presence of certain drugs. Employers with employees represented by a union must bargain for the right to test before testing such employees.

(d) Credit checks?

An employer may incur liability under the Fair Credit Reporting Act by procuring or causing to be prepared consumer reports or investigative consumer reports on present or prospective employees if the individuals are not advised in writing and do not give their written consent that information about their character, general reputation and personal characteristics may be disclosed in the report.

If an employer rejects an applicant either wholly or in part because of the information contained in a consumer report or investigative consumer report, the employer must advise the applicant of this fact prior to acting upon the decision, must provide an explanation of the employee’s rights under the act, and must supply the name, address and toll-free phone number of the consumer reporting agency that made the report. A willful violation by an employer of this required process can result in actual damages, punitive damages and attorneys’ fees. An employer that negligently fails to comply with the act will be liable for actual damages and attorneys’ fees.

Several states have enacted similar legislation that may impose additional procedural requirements.

(e) Immigration status?

The Immigration Reform and Control Act of 1986, as well as Title VII of the Civil Rights Act, penalize employers for discriminating against employees or applicants because of national origin or citizenship status. Similar prohibitions exist in various state laws.

(f) Social media?

The National Labor Relations Act protects employees who engage in concerted activity involving wages, hours, and working conditions, and limits employers’ ability to conduct surveillance or monitoring of employees, including via social media. In addition, the National Labor Relations Board has taken the position that social media usage may constitute protected concerted activity and has also frowned on employers’ attempts to curtail or control employees’ social media use. For example, an employer’s social media policies should not be so broad that they prohibit discussion of wages or working conditions among company employees.

The General Data Protection Regulation (GDPR) affects US companies in the same way that companies in other countries are being affected. While it does not limit employees’ use of social media, it is relevant to the way that personal data is shared electronically and should be reviewed when formulating policies and procedures relating to electronic communications.

Other than the National Labor Relations Act and the GDPR, there are no specific federal laws pertaining to social media. However, there are a variety of federal and state laws dealing generally with social media issues (e.g., data privacy issues).

(g) Other?


Wages and working time

Is there a national minimum wage and, if so, what is it?

The Fair Labor Standards Act generally requires the payment of a statutorily prescribed minimum wage to all covered employees except certain younger workers, who may be paid a sub-minimum training wage for up to 180 days. The current federal minimum wage is $7.25 per hour and has not increased since 2009. For that reason, several states (18 in 2018 alone) have enacted legislation requiring the payment of wages in excess of the federal minimum wage.

Are there restrictions on working hours?

There are no federal restrictions in the United States on employee working hours, except for break times for nursing mothers, and under child labor laws.

Hours and overtime

What are the requirements for meal and rest breaks?

There are no federal requirements in the United States related to meal and rest breaks, except that:
• non-exempt employees must be paid overtime for hours over 40 worked within a working week; and
• non-exempt nursing mothers must be given reasonable break times to express breast milk for their nursing child during one year after the child’s birth each time such employee has a need to express breast milk, and must be afforded an appropriate place (other than a bathroom) shielded from view and free from intrusion from co-workers and the public in which to express breast milk.

Fewer than half the states have enacted legislation requiring mandatory meal breaks. However, an employer does not have to pay an employee for a meal break unless:
• a state law specifically requires that payment;
• the employee must work through the scheduled break; or
• the break lasts for less than 20 minutes (in which case, pay is required).

Of the more than 20 states with meal period requirements, seven also have rest period requirements (i.e., California, Colorado, Kentucky, Minnesota, Nevada, Oregon and Washington).

How should overtime be calculated?

The Fair Labor Standards Act requires employers to pay overtime to all non-exempt employees at a rate of one and one-half times the employee’s regular rate for all hours worked in excess of 40 per week.

Other federal and state laws may require a higher overtime rate.

What exemptions are there from overtime?

The Fair Labor Standards Act contains numerous exemptions from the minimum wage and overtime requirements, including exemptions for certain white-collar employees (e.g., executive, administrative or professional employees; computer professionals; and outside salespeople). The revised regulations proposed in 2016, which would increase the salary requirements for the imposition of overtime pay, have been delayed and revised. The Department of Labour continues to solicit input on the new version of the regulations and is aiming to finalize them by the end of 2018.

Is there a minimum paid holiday entitlement?

The Fair Labor Standards Act (FLSA) does not require payment for time not worked, such as vacations or holidays (federal or otherwise). These benefits are generally a matter of agreement between an employer and an employee.

Some states have enacted legislation requiring paid holiday entitlement.

What are the rules applicable to final pay and deductions from wages?

The Fair Labor Standards Act generally precludes deductions from salary for exempt employees. Wages are generally due upon completion of work and must be paid within a reasonable time, although many states provide for a specific time period. Payment must be made by cash, cheque or, in some states, direct deposit to an employee’s bank account or pay cards and must be accompanied by a statement showing gross wages, deductions and net wages.

State laws vary widely on this issue and should be consulted on a case-by-case basis.

Record keeping

What payroll and payment records must be maintained?

In the case of employment-related taxes, the IRS guidelines say to keep the records for a minimum of four years after the tax is paid or is due, whichever of the two dates is later.

The FLSA requires employers to keep:
• all payroll records for at least three years; and
• supporting documentation for how wages were determined (e.g. timecards) for two years.