FAQs on Employment Law

FAQs on Employment Law

All employees have basic rights in the workplace. Those rights include privacy and freedom from illegal discrimination. In addition to federal law, each state has enacted laws to protect the rights of workers. A job applicant also has certain rights even prior to being hired as an employee. Those rights include the right to be free from discrimination based on age, gender, race, national origin or religion during the hiring process.

Learn more about different types of employment law here:

What are the major employment laws?

Title VII of the Civil Rights Act

  • Applies only to employers who, for 20 or more calendar workweeks in the current or preceding calendar year, have employed 15 or more employees
  • Prohibits employers from discriminating because of or on the basis of race, color, religion, sex (including pregnancy, childbirth or a related medical condition) or national origin

Americans with Disabilities Act

  • Applies only to employers who, for 20 or more calendar workweeks in the current or preceding calendar year, have employed 15 or more employees
  • Defines disability with respect to an individual as "a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment"
  • Defines major life activities to include, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions
  • Is designed to prohibit discrimination against workers with disabilities
  • Provides that if an individual with a disability can perform the essential functions of the job, with reasonable accommodation, that person cannot be discriminated against on the basis of the disability

Age Discrimination in Employment Act

  • Applies only to employers who, for 20 or more calendar workweeks in the current or preceding calendar year, have employed 20 or more employees
  • Applies only to employees who are 40 years old or older
  • Prevents employers from giving preferential treatment to younger workers to the exclusion of older workers when it comes to hiring, pay, benefits such as health insurance, job assignments and promotions
  • Does not prevent an employer from favoring older employees over younger employees

Fair Labor Standards Act

  • Applies to businesses that gross $500,000 or more per year and to other specific types of businesses
  • Provides that qualified employees who work more than 40 hours in a week should receive time-and-a-half pay for the overtime
  • Does not provide regulation as to the number and duration of breaks an employer must allow, but individual states may do so
  • Specifies minimum wage requirements

Family and Medical Leave Act

  • Applies only to employers who, for 20 or more calendar workweeks in the current or preceding calendar year, have employed 50 or more employees for each working day
  • Applies only to employees who have worked for the employer for at least 12 months and 1,250 hours in the year preceding the leave
  • Provides that employers must allow employees to take up to a 12-week unpaid leave of absence during any 12-month period for qualified family and medical reasons
  • Preserves qualified employees' positions for the duration of the leave
  • Employees generally cannot be punished or demoted for taking valid FMLA leave

What's the difference between an employee & independent contractor?

There is no single rule or test for determining whether individuals are employees or independent contractors. Rather, the determination is made by reviewing the overall relationship and who controls the relationship. Employers may misclassify a worker as an independent contractor when the worker really should be classified as an employee.

Important factors include:

  • Skill required
  • Who provides the tools to do the job
  • Location of the work
  • Duration of the relationship between the parties
  • Whether the hiring party has the right to assign additional projects to the hired party
  • Extent of the hired party's discretion over when and how long to work
  • Method of payment
  • Worker's role in hiring and paying assistants
  • Whether the work is part of the regular business of the hiring party
  • Provision of employee benefits
  • Tax treatment of the hired party

Ultimately, it comes down to the relationship between the worker and the business. The degree of control the business has over the worker is weighed against the worker's degree of independence.

What can't employers do during the hiring process?

It's illegal for an employer to discriminate in its hiring process based on race, national origin, gender, pregnancy, age, disability or religion. There may be other prohibitions under state law, as well, such as for discrimination based on sexual orientation. Employers must abide by anti-discrimination laws at each stage of the hiring process, from placing the ad to interviewing and final selection of the candidate.

Bad interview questions

In general, it is illegal for a potential employer to ask about:

  • Children or plans to become pregnant
  • Marital status
  • Race
  • Religion
  • Age (other than inquiring whether over age of 18)
  • Whether the applicant has a disability
  • Citizenship status
  • The presence of a drug or alcohol problem

What are my rights to privacy at work?

Computers

Employees do not have a reasonable expectation of privacy on computers provided by their employers. That includes email and instant messaging. Employers have the right to search, monitor and view email and other communications with a valid business purpose. Specific email messages, for example, frequently serve as evidence in employment law cases to prove misconduct or wrongdoing.

Phone calls & voicemail

In general, an employer may not monitor an employee's personal phone calls, even calls made at work. An employer may only monitor a personal call if the employee knows and gives his or her consent. An employer also may not intercept an employee's voicemail, but it may be allowed to access voicemail messages that are in "electronic storage" on the company system.

Drug testing

Employers can generally require employees and prospective employees to submit to drug testing. Many states, however, limit the circumstances in which an employer may test for drugs and the methods employers can use to administer testing. An employer may generally test its employees for drug use, as long as testing is limited to:

  • The job exposes the worker and/or other people to a high level of risk
  • The worker has completed or is currently in drug rehab
  • The worker was in a work-related accident involving suspected impairment
  • Employer reasonably believes the worker is using drugs, based on physical evidence or behavior

Call 800-872-2334

The Employment Law Office of John H. Haskin & Associates, LLC, is located in Indianapolis and serves clients throughout Indiana. For more than three decades, we have successfully represented employees in legal disputes with their employers. Our attorneys only represent employees, never employers.