SMALL BUSINESS HANDBOOK:

LAWS, REGULATIONS AND

TECHNICAL ASSISTANCE SERVICES

 

 

Read This First

 

This Handbook on the basic regulations and related services

administered by the Department of Labor (DOL) is designed primarily

for small businesses in general industry. It begins with a general

overview of DOL requirements. This is followed by ten sections

containing information on the specific laws and regulations.

Read the overview first to find out which requirements apply to

your business. For each requirement the overview refers to specific

sections or to a DOL office. Employers in certain industries (such

as agriculture and mining) or employers working on government

contracts should contact the referenced DOL offices for further

information and assistance.

 

Each section discusses: covered employers; basic provisions and

requirements; how to obtain information and assistance from DOL;

penalties for non-compliance; and relation to state, local and

other federal laws. The section subtitles identify the applicable

laws and the associated regulations, which can be found in the Code

of Federal Regulations (CFR). Many sections refer to an appendix

which provides additional addresses and phone numbers for obtaining

DOL assistance.

 

You should be aware that other federal agencies besides DOL enforce

laws and regulations that affect employers. For example, statutes

designed to ensure non-discrimination in employment are generally

enforced by the Equal Employment Opportunity Commission.  Also, the

Taft-Hartley Act regulating employer conduct with regard to

employees in a wide range of areas is administered by the National

Labor Relations Board. Please consult these agencies for further

information on their requirements.

 

The information contained in this publication is not to be

considered a substitute for any provisions of the laws enforced by

the Department of Labor or for any regulations issued by the

Department.

 

CONTENTS

 

Overview

page 1

 

Section 1. Minimum Wage and Overtime Pay

page 11

 

Section 2. Child Labor (Nonagriculture)

page 17

 

Section 3. Employment Eligibility of Alien Workers

page 20

 

Section 4. Occupational Safety and Health

page 22

 

Section 5. Employee Benefit Plans

page 36

 

Section 6. Whistleblower Protection

page 42

 

Section 7. Veterans

page 44

 

Section 8. Plant Closings and Mass Layoffs

page 46

 

Section 9. Lie Detector Tests

page 48

 

Section 10. Wage Garnishment

page 50

 

Appendix

page 53

 

 

OVERVIEW:  Major Statutes and Regulations Administered by the

Department of Labor

 

I. Requirements Applicable to Most Employers

 

Wages and Hours

 

The Fair Labor Standards Act (FLSA) prescribes minimum wage and

overtime pay (and record-keeping) standards affecting most private

and public employment, including homework. This is administered by

the Wage and Hour Division of DOL's Employment Standards

Administration (ESA).

 

1. The Minimum Wage and Overtime provisions of the FLSA require the following

from employers ofcovered employees who are not otherwise exempt:

 

Pay covered employees a minimum wage of not less than $4.25 an hour

effective April 1, 1991. (Employers may pay employees on a

piece-rate basis and under some circumstances consider the tips of

employees as part of their wages.)

 

Until March 31, 1993, employers may pay a training wage, under

certain conditions, of at least 85 percent of the minimum wage (but

not less than $3.35 an hour) for up to 90 days to employees under

age 20.

 

While not placing a limit on the total hours which may be worked,

the Act requires that covered employees, unless otherwise exempt,

be paid not less than one and one-half times their regular rates of

pay for all hours worked in excess of 40 in a workweek.

 

2. Homework requirements of the FLSA generally prohibit the performance of

certain types of work in an employee's home unless the employer has

obtained prior certification from the Department of Labor.

 

See Section 1, page 11, for more detail on wages and hours.

 

Who May Work, and When (administered by the Wage and Hour Division)

 

1. Child Labor provisions of the FLSA (Non-agriculture) include restrictions

on the hours of work and occupations for youths under age 16, and

these provisions set forth 17 hazardous occupations orders for jobs

declared by the Secretary of Labor to be too dangerous for minors

under age 18 to perform.

 

See Section 2, page 17, for more detail.

 

2. Immigrant Labor is regulated by the Immigration and Nationality Act (INA).

Under the INA, employers may legally hire workers only if they are

citizens of the U.S. or aliens authorized to work in the United

States. The INA requires that employers verify the employment

eligibility of all individuals hired after November 6, 1986.

 

See Section 3, page 20, for more detail.

 

The Immigration Nursing Relief Act of 1989 (INRA) was enacted to

provide relief for the shortage of registered nurses by legalizing

current nonimmigrant registered nurses and ensuring employer

efforts to attract and develop more U. S. employees to the nursing

profession. Contact your local ESA Wage and Hour Division office

for more details (see page 54).

 

Workplace Safety and Health

 

The Occupational Safety and Health Act (OSH Act), which is

administered by DOL's Occupational Safety and Health Administration

(OSHA) regulates safety and health conditions in most private

industries (except those regulated under other federal statutes,

e.g., transportation). Many private employers are regulated through

states operating under OSHA-approved plans.

 

It is the responsibility of employers to become familiar with

standards applicable to their establishments, to eliminate

hazardous conditions to the extent possible, and to comply with the

standards. Compliance may include assuring that employees have and

use personal protective equipment when required for safety or

health. Employees must comply with all rules and regulations that

are applicable to their own actions and conduct.

 

Covered employers are required to maintain workplaces that are safe

and healthful, including meeting many regulatory requirements. OSHA

promulgates safety and health standards, and makes distinctions by

type of industry.

 

Safety standards include regulations covering hazards such as

falls, explosions, electricity, fires, and cave-ins, as well as

machine and vehicle operation and maintenance, etc.

Health standards regulate exposures to a variety of health hazards

through engineering controls, the use of personal protective

equipment (e.g., respirators, ear protection etc.), and work

practices.

 

Where OSHA has not promulgated a specific standard, employers are

responsible for complying with the OSH Act's "general duty" clause

[Section 5(a)(1)], which states that each employer "shall furnish

. . . a place of employment which is free from recognized hazards

that are causing or are likely to cause death or serious physical

harm to his employees."

 

When OSHA develops effective safety and health regulations, safety

and health regulations originally issued under the following laws

administered by the Department of Labor are superseded: the

Walsh-Healey Act, the Service Contract Act, the Contract Work Hours

and Safety Standards Act, the Arts and Humanities Act, and the

Longshore and Harbor Workers' Compensation Act.

 

See Section 4, page 22, for more detail.

 

Pensions and Welfare Benefits

 

The Employee Retirement Income Security Act (ERISA) regulates

employers who have pension or welfare benefit plans. This statute

preempts many state laws in this area and is administered by DOL's

Pension and Welfare Benefits Administration (PWBA). The statute

also provides an insurance mechanism to protect retirement benefits

with employers required to pay annual pension benefit insurance

premiums to the Pension Benefits Guarantee Corporation (PBGC),

which is associated with the Department.

 

1. Pension Plans must meet a wide range of fiduciary and reporting

and disclosure requirements, with regulations defining such

concepts as the value of plan assets, what is adequate

consideration for the sale of assets, the effects of participants

having control over the assets in their plans, etc.

 

2. Welfare Benefit Plans also must meet a wide range of fiduciary,

reporting, and disclosure requirements. In addition, PWBA

administers the disclosure and notification requirements for the

continuation of health care provisions that were enacted as part of

the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).

These provisions cover group health plans of employers with 20 or

more employees on a typical business day in the previous calendar

year. COBRA gives participants and beneficiaries an election to

maintain, at their own expense, coverage under the employer's

health plan.

 

See Section 5, page 36, for more detail.

 

3. Pension Insurance information can be obtained from the Pension

Benefits Guarantee Corporation by writing PBGC, Coverage and

Inquiries Branch (25440), 2020 K Street, N.W., Washington, D.C.

20006-1860, or by calling (202) 778-8800.

 

Miscellaneous Requirements for Most Employers

 

1. The Labor-Management Reporting and Disclosure Act

(also known as the Landrum-Griffin Act, LMRDA) deals with the

relationship between a union and its members. It provides for

safeguarding of union funds, reporting and disclosure of financial

transactions, and administrative practices of union officials,

labor consultants, etc. This is administered by DOL's Office of

Labor-Management Standards (OLMS).

Call your local OLMS office for more detail (see page 65).

 

2. Employee Protection provisions are built into most labor and public

safety statutes, e.g., the FLSA, the OSH Act, ERISA, many environmental

protection statutes, etc. These protect employees who exercise their rights

under these Acts to complain about employers, ask for information,

etc. (remedies can include back wages and reinstatement.) They are

normally enforced by the DOL agency most concerned, e.g., OSHA

enforces those arising under the OSH Act. For more information on

employee protection under a statute administered by DOL, see the

relevant section. For information on employee protection in the

environmental context, see Section 6, page 42, for more detail.

 

3. Veteran's Reemployment Rights ensures that those who serve in the armed

forces have a right to reemployment with the employer they were with when they

went in service, including protection for those called up from the reserves

or National Guard. These are administered by DOL's Office of the

Assistant Secretary for Veterans' Employment and Training. See

 

Section 7, page 44, for more detail.

 

4. Plant Closings and Layoffs by employers may be subject to the Worker

Adjustment and Retraining Notification Act (WARN) which provides for early

warning to employees of the proposed layoffs or plant closings. Questions on

WARN may be addressed to DOL's Employment and Training Administration (ETA).

 

See Section 8, page 46, for more detail.

 

5. The Employee Polygraph Protection Act (EPPA) prohibits most use of lie

detectors by employers on their employees. This is administered by the Wage

and

Hour Division of ESA.

 

See Section 9, page 48, for more detail.

 

6. Garnishment of Wages by employers is subject to regulation under the

Consumer Credit Protection Act. This is administered by the Wage and Hour

Division of ESA.

 

See Section 10, page 50, for more detail.

 

II. Requirements Applicable to Employers Because of the Receipt of

Government Contracts, Grants, or Financial Assistance

 

1. Wage, Hour, and Fringe Benefit Standards

are determined for these contracts under: the Davis-Bacon and

related Acts (for construction); the Contract Work, Hours, and

Safety Standards Act; the McNamara-O'Hara Service Contract Act (for

services); and the Walsh-Healey Public Contracts Act (for

manufacturing). The Wage and Hour Division of ESA both makes the

determination of wages and benefits and enforces them.

Contact your local ESA Wage and Hour Division Office for more

detail (see page 54).

 

2. Safety and Health Standards are also issued under these Acts

and are specifically applicable to covered contracts.  Contact your

local ESA Wage and Hour Division Office for more detail (see page 54).

 

3. Non-discrimination and Affirmative Action Requirements

are set under Executive Order 11246, Section 503 of the

Rehabilitation Act, and the Vietnam Veteran's Readjustment

Assistance Act (38 U.S.C. 4212). These programs prohibit

discrimination and require affirmative action with regard to race,

sex, ethnicity, religion, disability and veterans' status. They are

administered by ESA's Office of Federal Contract Compliance

Programs (OFCCP). OFCCP works closely with EEOC to coordinate these

efforts.   Contact your local ESA Office of Federal Contract Compliance

Programs for more detail (see page 57).

 

III. Industry-Specific Requirements in Addition to the Above

 

Agriculture

 

Several safety and health standards issued and enforced by OSHA

(e.g., field sanitation) and the Environmental Protection Agency

(e.g., pesticides) apply to this industry. In addition, several

agriculture-  specific programs are administered by ETA and ESA's

Wage and Hour Division. For more information on these programs,

contact your local ESA office (see page 54).

 

1. The Migrant and Seasonal Agricultural Worker Protection Act

(MSPA) requires that covered farm labor contractors, agricultural

employers and agricultural associations comply with worker

protection applicable to migrant and seasonal agricultural workers

whom they recruit, solicit, hire, employ, furnish or transport or,

in the case of migrant agricultural workers, to whom they provide

housing.

 

2. The Immigration and Nationality Act (INA) requires that employers

wishing to use nonimmigrant workers for temporary agricultural

employment apply with the Employment and Training Administration

for a labor certificate showing that there are not sufficient workers

in the U.S. able, willing, qualified and available to do the work

and that employment of such nonimmigrant workers will not adversely

affect the wages and working conditions of workers in the U.S.

 

3. INA as Amended by the Immigration Reform and Control Act

requires all employers of special and replenishment agricultural

workers (SAWs and RAWs) to provide certain information on the use

of such workers to the federal government.

 

4. The Fair Labor Standards Act (FLSA) contains special child labor

regulations applicable to agricultural employment. The regulations

administered and enforced by the DOL agencies apply only to those

establishments with employees (e.g., they do not apply to family-run and

family-operated farms that do not hire outside workers).

 

Additionally, in some cases there are minimum employment standards

which must be met before an establishment is covered by a

regulation (e.g., OSHA's field sanitation standard is not enforced

at establishments that employ fewer than 11 workers in the field).

 

Mining Safety and Health

 

The goal of the Federal Mine Safety and Health Act of 1977 is to

improve working conditions in the nation's mines. Its provisions

cover all miners and other persons employed to work on mine

property, and it is administered by the Labor Department's Mine

Safety and Health Administration (MSHA). This law strengthened an

earlier coal mining law and brought metal and nonmetal (non-coal)

miners under the same general protections as those afforded coal

miners.

 

Under the Act, the operators of mines, with the assistance of their

employees, have the primary responsibility for ensuring the health

and safety of the miners. MSHA is responsible for fully inspecting

every underground mine at least four times a year and every surface

mine at least twice a year to ensure that these responsibilities

are met.

 

This law also established mandatory miners' training requirements

and strengthened health protection measures and gassy mine safety

programs. It also included tougher civil dollar penalties for

safety or health violations by mine operators. The Act also

provided for closure of mines in cases of imminent danger to

workers or failure to correct violations within the time allowed,

and it called for greater involvement of miners and their

representatives in processes affecting workers' health than

previously had been possible.

 

Each mine must be legally registered with MSHA. Many mine operators

are required to submit plans to MSHA for approval before beginning

operations. Such plans must be followed during mining. Required

plans cover operational aspects such as ventilation, roof control,

and miner training. Mine operators are required to report each

individual mine accident or injury to MSHA.

 

MSHA's Coal Mine Safety and Health Division enforces law and

regulations at more than 4,600 underground and surface coal mines.

MSHA's Metal and Nonmetal Mine Safety and Health Division enforces

federal requirements, conducts training, and assists the mining

industry in reducing deaths, serious injuries and illnesses at more

than 11,000 non-coal mines (including open pit mines, stone

quarries, and sand and gravel operations).

 

Health and safety regulations cover numerous hazards, including

those associated with the following:

 

exposure to respirable dust, airborne contaminants and noise

design, operation and maintenance requirements for mechanical

equipment, including mobile equipment roof falls, and rib and

face rolls flammable, explosive and noxious gases, dust and smoke

electrical circuits and equipment fires storage, transportation,

and use of explosives hoisting access and egress

 

Contact your local MSHA office for more detail (see page 74).

 

Construction

 

Several DOL agencies are involved in administering programs solely

related to the construction industry.

 

1. Safety and Health:

 

OSHA has separate occupational safety and health standards which

apply only to the construction industry.

See Section 4, page 22, for more detail.

 

2. Wage and Fringe Benefits: The Davis-Bacon Act and related Acts

require most contractors and subcontractors on federally assisted

contracts in excess of $2,000 to pay the prevailing wage rates and

fringe benefits as determined by the Secretary of Labor. Contact

your local ESA Wage and Hour Division Office for more detail (see

page 54).

 

3. Non-discrimination:

 

OFCCP has special regulations on non-discrimination and affirmative

action which apply only to the construction industry.

 

Contact your local ESA/OFCCP office for more detail (see page 57).

 

4. Anti-Kickback:

 

The "Anti-Kickback" section of the Copeland Act applies to all

contractors and subcontractors performing on any federally funded

or assisted contract for the construction, prosecution, completion

or repair of any public building or public work -- except contracts

for which the only federal assistance is a loan guarantee. This

provision precludes a contractor or subcontractor from inducing an

employee -- in any manner -- to give up any part of his/her

compensation to which he/she is entitled under his/her contract of

employment.

 

Contact your local ESA Wage and Hour Division office for more

detail (see page 54).

 

Transportation

 

Many laws with labor provisions in them that affect the

transportation industry are administered by agencies outside of the

Department. For example, the Railway Labor Act is administered

primarily by the Department of Transportation and the Railway

Retirement Board. Special DOL programs for this industry are:

 

1. Safety and Health:

 

Special longshoring and maritime industry standards issued and

enforced by OSHA.

 

See Section 4, page 22, for more detail.

 

2. Longshoring and Harbor Work:

 

Workers' compensation coverage provided under the Longshore and

Harbor Workers' Compensation Act, which is administered by ESA.

Employers must meet the coverage, funding, and other requirements

needed to provide these benefits.

 

Contact your local ESA/OWCP office for more detail (see page 77).

 

1. MINIMUM WAGE AND OVERTIME PAY

 

Fair Labor Standards Act of 1938, as Amended (Title 29, U.S. Code,

Sections 201 et seq.; 29 CFR 510-800).

 

Who is Covered

 

The Fair Labor Standards Act (FLSA) establishes minimum wage,

overtime pay, record-keeping and child labor standards that affect

more than 80 million full- and part-time workers in the private

sector and in federal, state and local governments.

 

The Act applies to enterprises that have employees who are engaged

in interstate commerce, producing goods for interstate commerce, or

handling, selling or working on goods or materials that have been

moved in or produced for interstate commerce. For most firms, an

annual dollar volume of business test of not less than $500,000

applies. The following are covered by the Act 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 individually covered in any workweek in which

they are individually engaged in interstate commerce, the

production of goods for interstate commerce, or an activity which

is closely related and directly essential to the production of such

goods. Domestic service workers, such as day workers, housekeepers,

chauffeurs, cooks or full-time babysitters, are also covered if

they receive at least $50 in cash wages in a calendar quarter from

their employers or work a total of more than 8 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, must continue to pay its employees not less

than $3.35 an hour (the statutory minimum wage prior to 4/1/90) and

continues to be subject to the overtime pay, child labor and

record-keeping requirements of the Act.

 

Some employees are excluded from the Act's minimum wage and/or

overtime pay provisions under specific exemptions provided in the

law. Because these exemptions are generally narrowly defined,

employers should carefully check the exact terms and conditions for

each by contacting the Wage and Hour Division of the Employment

Standards Administration (ESA) at the offices referenced below.

 

The following are examples of employees exempt from both the

minimum wage and overtime pay requirements:

 

Executive, administrative and professional employees (including

teachers and academic administrative personnel in elementary and

secondary schools and also including certain skilled computer

professionals as provided in P.L. 101-583, November 15, 1990) and

outside sales persons

 

Employees of seasonal amusement or recreational establishments

 

Employees of certain small newspapers and switchboard operators of

small telephone companies

 

Seamen employed on foreign vessels

 

Employees engaged in fishing operations

 

Farm workers employed on small farms (i.e., those that used no more

than 500 "man-days" of farm labor in any calendar quarter of the

preceding calendar year)

 

Casual babysitters and persons employed as companions to the

elderly or infirm

 

The following are examples of employees exempt from the Act's

overtime pay requirements only:

 

Certain commissioned employees of retail or service establishments

Auto, truck, trailer, farm implement, boat or aircraft

salesworkers, or parts-clerks and mechanics servicing autos, trucks

or farm implements, and who are employed by non-manufacturing

establishments primarily engaged in selling these items to ultimate

purchasers

 

Railroad and air carrier employees, taxi drivers, certain employees

of motor carriers, seamen on American vessels and local delivery

employees paid on approved trip rate plans

 

Announcers, news editors and chief engineers of certain

non-metropolitan broadcasting stations

 

Domestic service workers who reside in their employer's residence

 

Employees of motion picture theaters

 

Farmworkers

 

Certain employees may be partially exempted from the Act's overtime

pay requirements. These include:

 

Employees engaged in certain operations on agricultural commodities

and employees of certain bulk petroleum distributors

Employees of hospitals and residential care establishments which

have agreements with the employees to work a 14-day work period in

lieu of a 7-day workweek if the employees are paid overtime premium

pay within the requirements of the Act for all hours worked over 8

in a day or 80 in the 14-day work period, whichever is the greater

number of overtime hours

 

Employees who lack a high school diploma or who have not completed

the eighth grade may be required by their employer to spend up to

10 hours in a workweek in remedial reading or training in other

basic skills that is not job-specific, as long as they are paid

their normal wages for the hours spent in training. Such employees

need not be paid overtime premium pay for their training hours.

 

Basic Provisions/Requirements

 

The Act requires employers of covered employees who are not

otherwise exempt to pay these employees a minimum wage of not less

than $4.25 an hour. The increases in the minimum wage mandated by

the 1989 amendments to the Act will be phased in on an

industry-by-industry basis in Puerto Rico. All Puerto Rican

industries must reach the mainland minimum wage by April 1, 1996.

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., employees who

customarily and regularly receive more than $30 a month in tips,

may consider the tips of these employees as part of their wages.

This tip credit may not, however, exceed 50 percent of the required

minimum wage.

 

Employers may pay a training wage, under certain conditions, of at

least 85 percent of the minimum wage (but not less than $3.35 an

hour) for up to 90 days to employees under age 20, except for

migrant or seasonal agricultural workers and H-2A nonimmigrant

agricultural workers performing work of a temporary or seasonal

nature. An employee who has been paid at the training wage for 90

days can be employed for 90 additional days at the training wage by

a different employer if that employer provides on-the-job training

in accordance with rules of the Department of Labor. Employers may

not displace employees (or reduce their wages or benefits) in order

to hire employees at the training wage. These training wage

provisions expire on March 31, 1993.

 

The Act also permits the employment of the following individuals at

wage rates below the statutory minimum wage under certificates

issued by the Department:

 

Student learners

 

Full-time students in retail or service establishments,

agriculture, or institutions of higher education

 

Individuals whose earning or productive capacity is impaired by a

physical or mental disability, including those related to age or

injury, for the work to be performed

 

While not placing a limit on the total hours which may be worked,

the Act requires that covered employees, unless otherwise exempt,

be paid not less than one and one-half times their regular rates of

pay for all hours worked in excess of 40 in a workweek.

Employers are required to keep records on wages, hours and other

items as set out in the Department of Labor's regulations. Most of

this information is of the type generally maintained by employers

in ordinary business practice.

 

Performance of certain types of work in an employee's home is

prohibited under the Act 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, among other

things, provide written assurances to the Department that they will

comply with the Act's monetary and other requirements. The

manufacture of women's apparel (and jewelry under hazardous

conditions) is generally prohibited, except under special

certificates that allow homework in these industries when the

homeworker is unable to adjust to factory work because of age or

physical or mental disability, or is caring for an invalid 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 which were

produced in violation of the minimum wage, overtime pay, child

labor, or special minimum wage provisions.

 

Assistance Available

 

More detailed information, including copies of explanatory

brochures and regulatory and interpretative materials, may be

obtained by contacting the offices listed beginning on page 53 in

the appendix.

 

Penalties

 

Enforcement of the Act is carried out by Wage and Hour Division

compliance officers stationed throughout the country. A variety of

remedies are available to the Department to enforce compliance with

the Act's requirements. When compliance officers encounter

violations, they recommend changes in employment practices in order

to bring the employer into compliance. Willful violations may be

prosecuted criminally and the violators fined up to $10,000. A

second conviction may result in imprisonment. Employers who

willfully and repeatedly violate the minimum wage or overtime pay

requirements are subject to civil money penalties of up to $1,000

per violation. Employers are subject to a civil money penalty of up

to $10,000 for each employee employed in violation of the child

labor provisions. When a civil money penalty is assessed, employers

have the right, within 15 days of receipt of the notice of such

penalty, to file an exception to the determination. When an

exception is filed, it is referred to an administrative law judge

for a hearing and determination as to the appropriateness of the

penalty. If an exception is not filed, the penalty becomes final.

 

The Secretary of Labor may also bring suit for back pay and an

equal amount in liquidated damages and obtain injunctions to

restrain persons from violating the Act. Employees may also bring

suit, where the Department has not done so, for back pay and

liquidated damages, as well as attorney's fees and court costs.

 

Relation to State, Local and Other Federal Laws

 

State 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.

 

 

2. CHILD LABOR (Nonagriculture)

 

Fair Labor Standards Act of 1938, as Amended (Title 29, U.S. Code,

Section 201 et seq.; 29 CFR 570-580).

 

Who is Covered

 

The child labor provisions of the Fair Labor Standards Act (the

Act) are designed to protect the educational opportunities of

youths and prohibit their employment in jobs and under conditions

detrimental to their health and well-being.

 

In nonagriculture, the child labor provisions apply to enterprises

that have employees who are engaged in interstate commerce,

producing goods for interstate commerce, or handling, selling or

working on goods or materials that have been moved in or produced

for interstate commerce. For most firms, an annual dollar volume of

business test of not less than $500,000 applies. The following are

covered by the Act 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 individually covered in any workweek in which

they are individually engaged in interstate commerce, the

production of goods for interstate commerce or an activity which is

closely related and directly essential to the production of such

goods. Domestic service workers, such as day workers, housekeepers,

chauffeurs, cooks or full-time babysitters, are also covered if

they receive at least $50 in cash wages in a calendar quarter from

their employers or work a total of more than 8 hours a week for one

or more employers.

 

An enterprise that was covered by the Act on March 31, 1990, and

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, remains subject to the Act's child labor provisions.

Sixteen is the minimum age for most nonfarm work. However, youths

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 of

Labor); or gather evergreens and make evergreen wreaths.

 

Basic Provisions/Requirements

 

The Act's child labor provisions include restrictions on the hours

of work and occupations for youths under age 16. These provisions

set forth 17 hazardous occupations orders for jobs declared by the

Secretary of Labor to be too dangerous for minors under age 18 to

perform. The Act prohibits the shipment of goods in interstate

commerce which were 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:

 

Youths 18 years or older may perform any job for unlimited hours

Youths age 16 and 17 may perform any job not declared hazardous by

the Secretary of Labor, for unlimited hours

Youths age 14 and 15 may work outside school hours in various

nonmanufacturing, nonmining, nonhazardous jobs under the following

conditions: no more than 3 hours on a school day, 18 hours in a

school week, 8 hours on a nonschool day, or 40 hours in a nonschool

week. In addition, they may not begin work before 7 a.m. nor work

after 7 p.m., except from June 1 through Labor Day, when evening

hours are extended until 9 p.m. Youths aged 14 and 15 who are

enrolled in an approved Work Experience and Career Exploration

Program (WECEP) may be employed for up to 23 hours in school weeks

and 3 hours on school days (including during school hours).

Detailed information on the occupations determined to be hazardous

by the Secretary is available by contacting the Wage and Hour

Division at the offices listed below.

 

Department of Labor regulations require employers to keep records

of the date of birth of employees under age 19, including daily

starting and quitting times, daily and weekly hours worked, and the

employee's occupation.

 

Employers may protect themselves from unintentional violation of

the child labor provisions by keeping on file an employment or age

certificate for each youth employed to show that the youth is the

minimum age for the job. Certificates issued under most state laws

are acceptable for this purpose.

 

Assistance Available

 

More detailed information, including copies of explanatory

brochures and regulatory and interpretative materials, may be

obtained by contacting the offices listed beginning on page 53 in

the appendix.

 

Penalties

 

Employers are subject to a civil money penalty of up to $10,000 for

each employee employed in violation of the child labor provisions.

When a civil money penalty is assessed, employers have the right,

within 15 days of receipt of the notice of such penalty, to file an

exception to the determination. When an exception is filed, it is

referred to an administrative law judge for a hearing and

determination as to the appropriateness of the penalty. 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, in the case of a

conviction for a willful violation, for a fine of up to $10,000;

or, for a second offense committed after the conviction of such

person for a similar offense, for a fine of not more than $10,000

and imprisonment for up to six months, or both. The Secretary of

Labor may also bring suit to obtain injunctions to restrain persons

from violating the Act.

 

Relation to State, Local and Other Federal Laws

Many states have child labor laws. When both this Act and a state

law apply, the law setting the higher standards must be observed.

 

 

3. EMPLOYMENT ELIGIBILITY OF ALIEN WORKERS

 

Immigration and Nationality Act (INA)  (8 U.S. Code, Section 1186).

 

Who is Covered

 

The Immigration and Nationality Act (INA) employment eligibility

verification and related nondiscrimination provisions apply to all

employers.

 

Basic Provisions/Requirements

 

Under the INA, employers may legally hire workers only if they are

citizens of the U.S. or aliens authorized to work in the United

States. For some aliens (students, nurses, "specialty occupations,"

fashion models) employers must comply with attestation procedures

through the Department of Labor. The INA requires that employers

verify the employment eligibility of all individuals hired after

November 6, 1986. To do so, employers must require applicants to

show proof of their employment eligibility, by requiring completion

of the I-9 form. Employers must keep I-9s on file for at least 3

years (or one year after employment ends, whichever is greater).

The INA also protects U.S. citizens, and aliens authorized to

accept employment in the U.S., from discrimination in hiring or

discharge on the basis of national origin and citizenship status.

 

Assistance Available

 

More detailed information, including copies of explanatory

brochures and regulatory and interpretative materials, may be

obtained by contacting the offices listed beginning on page 53 in

the appendix.

 

Penalties

 

Employers who fail to complete and/or retain the I-9 forms are

subject to civil fines of up to $1,000 per applicant. Enforcement

of the INA requirements on employment eligibility verification

comes under the jurisdiction of the Immigration and Naturalization

Service (INS). The Justice Department is responsible for enforcing

the anti-discrimination provisions. In conjunction with their

ongoing enforcement efforts, the Employment Standards

Administration's Wage and Hour Division and Office of Federal

Contract Compliance Programs conduct inspections of the I-9 forms.

Their findings are reported to the INS and to the Department of

Justice where there is apparent disparate treatment in the

verification process.

 

Relation to State, Local and Other Federal Laws

Not Applicable.

 

 

4. OCCUPATIONAL SAFETY AND HEALTH

 

The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C.

651 et seq.; Title 29 Code of Federal Regulations, Parts 1900 to

end.

 

Who is Covered

 

In general, coverage of the Act extends to all employers and their

employees in the 50 states, the District of Columbia, Puerto Rico,

and all other territories under federal government jurisdiction.

Coverage is provided either directly by the Federal Occupational

Safety and Health Administration (OSHA) or through an OSHA-approved

state job safety and health program.

 

As defined by the Act, an employer is any "person engaged in a

business affecting commerce who has employees, but does not include

the United States or any state or political subdivision of a

State." Therefore, the Act applies to employers and employees in

such varied fields as manufacturing, construction, longshoring,

agriculture, law and medicine, charity and disaster relief,

organized labor and private education. Such coverage includes

religious groups to the extent that they employ workers for secular

purposes.

 

The following are not covered by the Act:

Self-employed persons

 

Farms at which only immediate members of the farmer's family are

employed

 

Working conditions regulated by other federal agencies under other

federal statutes. This category includes most employment in mining,

nuclear energy and nuclear weapons manufacture, and many segments

of the transportation industries.

 

When another federal agency is authorized to regulate safety and

health working conditions in a particular industry, if it does not

do so in specific areas, then OSHA requirements apply.

 

As OSHA develops effective safety and health regulations of its

own, safety and health regulations originally issued under the

following laws administered by the Department of Labor are

superseded: the Walsh-Healey Act, the Service Contract Act, the

Contract Work Hours and Safety Standards Act, the Arts and

Humanities Act, and the Longshore and Harbor Workers' Compensation

Act.

 

Basic Provisions/Requirements

 

The Act assigns to OSHA two principal functions: setting standards

and conducting workplace inspections to assure employers are

complying with the standards and providing a safe and healthful

workplace. OSHA standards may require conditions, or the adoption

or use of one or more practices, means, methods or processes

reasonably necessary and appropriate to protect workers on the job.

It is the responsibility of employers to become familiar with

standards applicable to their establishments, to eliminate

hazardous conditions to the extent possible, and to comply with the

standards. Compliance may include assuring that employees have and

use personal protective equipment when required for safety or

health. Employees must comply with all rules and regulations that

are applicable to their own actions and conduct.

 

Where OSHA has not promulgated a specific standard, employers are

responsible for complying with the OSH Act's "general duty" clause.

The general duty clause of the Act [Section 5(a)(1)] states that

each employer "shall furnish . . . a place of employment which is

free from recognized hazards that are causing or are likely to

cause death or serious physical harm to his employees."

 

States with OSHA-approved job safety and health programs must set

standards that are at least as effective as the equivalent federal

standard. Many state-plan states adopt standards identical to the

federal ones.

 

Federal OSHA Standards

 

These fall into four major categories: general industry (29 CFR

1910), construction (29 CFR 1926), maritime - shipyards, marine

terminals, longshoring - (29 CFR 1915-19), and agriculture (29 CFR

1928).

 

Each of these four categories of standards imposes requirements

that are, in some cases, identical for each category of employers;

in others, they are either absent or vary somewhat.

 

Among the standards that impose similar requirements on all

industry sectors are those for access to medical and exposure

records, personal protective equipment, and hazard communication.

Access to Medical and Exposure Records: This standard requires that

employers grant employees access to any of their medical records

maintained by the employer and to any records the employer

maintains on the employees' exposure to toxic substances.

 

Personal Protective Equipment: This standard, included separately

in the standards for each industry segment (except agriculture)

requires that employers provide employees, at no cost to employees,

with personal protective equipment designed to protect them against

certain hazards. This can range from protective helmets in

construction and cargo handling work to prevent head injuries, to

eye protection, hearing protection, hard-toed shoes, special

goggles (for welders, for example) and gauntlets for iron workers.

 

Hazard Communication: This standard requires that manufacturers and

importers of hazardous materials conduct a hazard evaluation of the

products they manufacture or import. If the product is found to be

hazardous under the terms of the standard, containers of the

material must be appropriately labeled and the first shipment of

the material to a new customer must be accompanied by a material

safety data sheet (MSDS). Receiving employers must train their

employees, using the MSDSs they receive, to recognize and avoid the

hazards the materials present.

 

In general, however, all employers should be aware that any hazard

not covered by an industry-specific standard may be covered by a

general industry standard or by the general duty clause. This

coverage becomes important in the enforcement aspects of OSHA's

work.

 

Other types of requirements are imposed by regulation rather than

by a standard. OSHA regulations cover such items as record-keeping,

reporting and posting.

 

Record-keeping: Every employer covered by OSHA who has more than 10

employees must maintain OSHA-specified records of job-related

injuries and illnesses. There are two such records, the OSHA Form

200 and the OSHA Form 101.

 

The OSHA Form 200 is an injury/illness log, with a separate line

entry for each recordable injury or illness (essentially those

work-related deaths, injuries and illnesses other than minor

injuries that require only first aid treatment and that do not

involve medical treatment, loss of consciousness, restriction of

work or motion, or transfer to another job). A summary section of

the OSHA Form 200, which includes the total of the previous year's

injury and illness experience, must be posted in the workplace for

the entire month of February each year.

 

The OSHA Form 101 is an individual incident report that provides

added detail about each individual recordable injury or illness. A

suitable insurance or worker compensation form that provides the

same details may be substituted for the OSHA Form 101.

 

Unless an employer has been selected in a particular year to be

part of a national survey of workplace injuries and illnesses

conducted by the Department of Labor's Bureau of Labor Statistics

(BLS), employers with ten or fewer employees or employers in

traditionally low-hazard industries are exempt from maintaining

these records; all employers selected for the BLS survey must

maintain the records. Employers so selected will be notified before

the end of the year to begin keeping records during the coming

year, and technical assistance on completing these forms is

available from the state offices which select these employers for

the survey.

 

Industries designated as traditionally low hazard include:

automobile dealers; apparel and accessory stores; furniture and

home furnishing stores; eating and drinking places; finance,

insurance, and real estate industries; and service industries, such

as personal and business services, legal, educational, social and

cultural services and membership organizations.

 

Reporting: In addition to selected employers each year being

required to report their injury and illness experience, each

employer, regardless of number of employees or industry category,

must report to the nearest OSHA office within 48 hours any accident

that results in one or more fatalities or hospitalization of five

or more employees. Such accidents are often investigated by OSHA to

determine whether violations of standards contributed to the event.

 

Workplace Inspections

 

To enforce its standards, OSHA is authorized under the Act to

conduct workplace inspections. Every establishment covered by the

Act is subject to inspection by OSHA compliance safety and health

officers (CSHOs), who are chosen for their knowledge and experience

in the occupational safety and health field. CSHOs are thoroughly

trained in OSHA standards and in the recognition of safety and

health hazards. Similarly, states with their own occupational

safety and health programs conduct inspections using qualified

state CSHOs.

 

Employee Rights

 

Employees are granted several important rights by the Act. Among

them are the right to: complain to OSHA about safety and health

conditions in their workplace and have their identity kept

confidential from the employer, contest the time period OSHA allows

for correcting standards violations, and participate in OSHA

workplace inspections.

 

Anti-Discrimination Provisions

 

Private sector employees who exercise their rights under OSHA can

be protected against employer reprisal. Employees must notify OSHA

within 30 days of the time they learned of the alleged

discriminatory action. This notification is followed by an OSHA

investigation. If OSHA agrees that discrimination has occurred, the

employer will be asked to restore any lost benefits to the affected

employee. If necessary, OSHA can take the employer to court. In

such cases, the worker pays no legal fees.

 

Assistance Available

 

Copies of Standards

 

The Federal Register is one of the best sources of information on

standards, since all OSHA standards are published there when

adopted, as are all amendments, corrections, insertions or

deletions. The Federal Register, published five days a week, is

available in many public libraries. Annual subscriptions are

available from the Superintendent of Documents, U.S. Government

Printing Office (GPO), Washington, DC 20402. For the current price,

contact GPO at (202) 783-3238.

 

Each year the Office of the Federal Register publishes all current

regulations and standards in the Code of Federal Regulations (CFR),

available at many public libraries and from GPO. OSHA's regulations

and standards are collected in several volumes in Title 29 CFR,

Parts 1900-1999.

 

Since states with OSHA-approved job safety and health programs

adopt and enforce their own standards under state law, copies of

these standards can be obtained from the individual states.

Addresses and phone numbers are found beginning on page 60 in the

appendix.

 

Training and Education

OSHA's field offices (more than 70) are full-service centers

offering a variety of informational services such as publications,

technical advice, audio-visual aids on workplace hazards, and

lecturers for speaking engagements.

 

The OSHA Training Institute in Des Plaines, IL, provides basic and

advanced training and education in safety and health for federal

and state CSHOs; state consultants; other federal agency personnel;

and private sector employers, employees and their representatives.

Institute courses cover topics such as electrical hazards, machine

guarding, ventilation and ergonomics. The Institute facility

includes classrooms, laboratories, a library and an audio-visual

unit. The laboratories contain various demonstrations and

equipment, such as power presses, woodworking and welding shops, a

complete industrial ventilation unit, and a noise demonstration

laboratory. Sixty-three courses are available for students from the

private sector dealing with subjects such as safety and health in

the construction industry and methods of voluntary compliance with

OSHA standards.

 

OSHA also provides funds to nonprofit organizations to conduct

workplace training and education in subjects where OSHA believes

there is a current lack of workplace training. OSHA identifies

areas of unmet needs for safety and health education in the

workplace annually and invites grant applications to address these

needs. The Training Institute is OSHA's point of contact for

learning about the many valuable training products and materials

developed under such grants.

 

Organizations awarded grants use funds to develop training and

educational programs, reach out to workers and employers for whom

their program is appropriate, and provide these programs to

employers and employees.

 

Grants are awarded annually, with a one-year renewal possible.

Grant recipients are expected to contribute 20 percent of the total

grant cost.

 

While OSHA does not provide grant materials directly, it will

provide addresses and phone numbers of contact persons from whom

the public can order such materials for its use. Contact the OSHA

Training Institute at (708) 297-4810.

 

Consultation Assistance

 

Consultation assistance is available to employers who want help in

establishing and maintaining a safe and healthful workplace.

Largely funded by OSHA, the service is provided at no cost to the

employer.

 

No penalties are proposed or citations issued for hazards

identified by the consultant.

 

The service is provided to the employer with the assurance that his

or her name and firm and any information about the workplace will

not be routinely reported to OSHA inspection staff.

 

Besides helping employers identify and correct specific hazards,

consultation can include assistance in developing and implementing

effective workplace safety and health programs with emphasis on the

prevention of worker injuries and illnesses. Limited assistance

such as training and education services, is also provided away from

the worksite.

 

Primarily targeted for smaller employers with more hazardous

operations, the consultation service is delivered by state

government agencies or universities employing professional safety

consultants and health consultants. When delivered at the worksite,

consultation assistance includes an opening conference with the

employer to explain the ground rules for consultation, a walk

through the workplace to identify any specific hazards and to

examine those aspects of the employer's safety and health program

which relate to the scope of the visit, and a closing conference

followed by a written report to the employer of the consultant's

findings and recommendations.

 

This process begins with the employer's request for consultation

and the commitment to correct any serious job safety and health

hazards identified by the consultant. Possible violations of OSHA

standards will not be reported to OSHA enforcement staff unless the

employer fails or refuses to eliminate or control worker exposure

to any identified serious hazard or imminent danger situation. In

such unusual circumstances, OSHA may investigate and begin

enforcement action.

 

Employers who receive a comprehensive consultation visit, correct

all identified hazards, and demonstrate that an effective safety

and health program is in operation may be exempted from OSHA

general schedule enforcement inspections (not complaint or accident

investigations) for a period of one year. Comprehensive

consultation assistance includes an appraisal of all work

practices; mechanical, physical, and environmental hazards in the

workplace; and, all aspects of the employer's present job safety

and health program.

 

Additional information concerning consultation assistance,

including a directory of OSHA-funded consultation projects, can be

obtained by requesting OSHA publication No. 3047, Consultation

Services for the Employer.

 

Voluntary Protection Programs

 

The Voluntary Protection Programs (VPPs) represent one part of

OSHA's effort to extend worker protection beyond the minimum

required by OSHA standards. These programs, along with others such

as expanded on-site consultation services and full-service area

offices, are cooperative approaches which, when coupled with an

effective enforcement program, expand worker protection to help

meet the goals of the Occupational Safety and Health Act of 1970.

 

The VPPs are designed to:

 

Recognize outstanding achievement of those who have successfully

incorporated comprehensive safety and health programs into their

total management system

 

Motivate others to achieve excellent safety and health results in

the same outstanding way

 

Establish a relationship between employers, employees, and OSHA

that is based on cooperation rather than coercion

OSHA reviews an employer's VPP application and conducts an on-site

review to verify that the safety and health program described is in

operation at the site. Evaluations are conducted on a regular

basis, annually for Merit and Demonstration programs, and

triennially for Star. All participants must send their injury

information annually to their OSHA regional office. Sites

participating in the VPP are not scheduled for programmed

inspections; however, any employee complaints, serious accidents or

significant chemical releases that may occur are handled according

to routine enforcement procedures.

 

An employer may make application for any VPP at the nearest OSHA

regional office. Once OSHA is satisfied that, on paper, the

employer qualifies for the program, an onsite review will be

scheduled. The review team presents its findings in a written

report for the company's review prior to submission to the

Assistant Secretary of Labor, who heads OSHA. If approved, the

employer receives a letter from the Assistant Secretary informing

the site of its participation in the VPP. A certificate of approval

and flag are presented at a ceremony held at or near the approved

worksite. Star sites receiving reapproval after each triennial

evaluation receive plaques at similar ceremonies.

 

The VPPs described are available in states under federal

jurisdiction. Some states with their own safety and health programs

have similar programs. Interested companies in these states should

contact the appropriate state agency for more information (see list

beginning on page 59).

 

Information Sources

 

Information about state programs, VPP, consultation programs, and

inspections can be obtained from the nearest OSHA field office, or

from one of the 10 regional OSHA offices listed, beginning on page

63 in the appendix. The listing indicates the states and

territories under the jurisdiction of each regional office. Area

offices under regional office jurisdiction are listed in local

phone directories under U.S. Government listings for the U.S

Department of Labor.

 

Other Sources

 

A single free copy of an OSHA catalog, OSHA 2019, "OSHA

Publications and Audiovisual Programs," may be obtained by mailing

a self-addressed mailing label to the OSHA Publications Office,

Room N3101, US Department of Labor, Washington, DC 20210; telephone

(202) 219-9667. Descriptions of and ordering information for all

OSHA publications and audiovisual programs are contained in this

catalog.

 

Questions about OSHA programs, the status of ongoing

standards-setting activities, and general inquiries about OSHA may

be addressed to the OSHA Office of Information & Consumer Affairs,

Room N3637, U.S. Department of Labor, Washington, DC 20210;

telephone (202) 219-8151.

 

Those who are interested in following OSHA activities more closely

may be interested in subscribing to OSHA's official magazine, Job

Safety & Health Quarterly. Subscription orders may be placed with

the Superintendent of Documents, Government Printing Office,

Washington, DC 20402; telephone (202) 783-3238. Orders by phone may

be charged to VISA or MASTERCARD. Written orders should be

accompanied by a check or money order made payable to

"Superintendent of Documents" in the amount of $5.50 (international

orders add 25%).

 

Penalties

 

These are the types of violations that may be cited and the

penalties that may be proposed:

 

Other-Than-Serious Violation: A violation that has a direct

relationship to job safety and health, but probably would not cause

death or serious physical harm. A proposed penalty of up to $7,000

for each violation is discretionary. A penalty for an

other-than-serious violation may be adjusted downward by as much as

95 percent, depending on the employer's good faith (demonstrated

efforts to comply with the Act), history of previous violations,

and size of business. When the adjusted penalty amounts to less

than $50, no penalty is proposed.

 

Serious Violation: A violation where there is substantial

probability that death or serious physical harm could result and

that the employer knew, or should have known, of the hazard. A

mandatory penalty of up to $7,000 for each violation is proposed.

 

A penalty for a serious violation may be adjusted downward, based

on the employer's good faith, history of previous violations, the

gravity of the alleged violation, and size of business.

Willful Violation: A violation that the employer intentionally and

knowingly commits. The employer either knows that what he or she is

doing constitutes a violation, or is aware that a hazardous

condition existed and has made no reasonable effort to eliminate

it.

 

The Act provides that an employer who willfully violates the Act

may be assessed a civil penalty of not more than $70,000 but not

less than $5,000 for each violation. A proposed penalty for a

willful violation may be adjusted downward, depending on the size

of the business and its history of previous violations. Usually no

credit is given for good faith.

 

If an employer is convicted of a willful violation of a standard

that has resulted in the death of an employee, the offense is

punishable by a court-imposed fine or by imprisonment for up to six

months, or both. A fine of up to $250,000 for an individual, or

$500,000 for a corporation [authorized under the Comprehensive

Crime Control Act of 1984 (1984 CCA), not the OSH Act], may be

imposed for a criminal conviction.

 

Repeated Violation: A violation of any standard, regulation, rule

or order where, upon reinspection, a substantially similar

violation is found. Repeated violations can bring a fine of up to

$70,000 for each such violation. To be the basis of a repeat

citation, the original citation must be final; a citation under

contest may not serve as the basis for a subsequent repeat

citation.

 

Failure to Correct Prior Violation: Failure to correct a prior

violation may bring a civil penalty of up to $7,000 for each day

the violation continues beyond the prescribed abatement date.

Additional violations for which citations and proposed penalties

may be issued are as follows:

 

Falsifying records, reports or applications upon conviction can

bring a fine of $10,000 or up to six months in jail, or both

Violations of posting requirements can bring a civil penalty of up

to $7,000

 

Assaulting a compliance officer, or otherwise resisting, opposing,

intimidating, or interfering with a compliance officer in the

performance of his or her duties is a criminal offense, subject to

a fine of not more than $250,000 for an individual and $500,000 for

a corporation (1984 CCA) and imprisonment for not more than three

years

 

Citation and penalty procedures may differ somewhat in states with

their own occupational safety and health programs.

 

Appeals Process

 

Appeals by Employees: If an inspection was initiated due to an

employee complaint, the employee or authorized employee

representative may request an informal review of any decision not

to issue a citation.

 

Employees may not contest citations, amendments to citations,

penalties or lack of penalties. They may contest the time in the

citation for abatement of a hazardous condition. They also may

contest an employer's Petition for Modification of Abatement (PMA)

which requests an extension of the abatement period. Employees must

contest the PMA within 10 working days of its posting or within 10

working days after an authorized employee representative has

received a copy.

 

Within 15 working days of the employer's receipt of the citation,

the employee may submit a written objection to OSHA. The OSHA area

director forwards the objection to the Occupational Safety and

Health Review Commission, which operates independently of OSHA.

Employees may request an informal conference with OSHA to discuss

any issues raised by an inspection, citation, notice of proposed

penalty or employer's notice of intention to contest.

 

Appeals by Employers: When issued a citation or notice of a

proposed penalty, an employer may request an informal meeting with

OSHA's area director to discuss the case. Employee representatives

may be invited to attend the meeting. The area director is

authorized to enter into settlement agreements that revise

citations and penalties to avoid prolonged legal disputes.

 

Petition for Modification of Abatement (PMA): Upon receiving a

citation, the employer must correct the cited hazard by the

prescribed date unless he or she contests the citation or abatement

date. If factors beyond the employer's reasonable control prevent

the completion of corrections by that date, the employer who has

made a good faith effort to comply may file a PMA for an extended

date.

 

The written petition should specify all steps taken to achieve

compliance, the additional time needed to achieve complete

compliance, the reasons this additional time is needed, and all

temporary steps being taken to safeguard employees against the

cited hazard during the intervening period. It should also indicate

that a copy of the PMA was posted in a conspicuous place at or near

each place where a violation occurred, and that the employee

representative (if there is one) received a copy of the petition.

Notice of Contest: If the employer decides to contest either the

citation, the time set for abatement, or the proposed penalty, he

or she has 15 working days from the time the citation and proposed

penalty are received in which to notify the OSHA area director in

writing. An orally expressed disagreement will not suffice. This

written notification is called a "Notice of Contest."

 

There is no specific format for the Notice of Contest; however, it

must clearly identify the employer's basis for contesting the

citation, notice of proposed penalty, abatement period, or

notification of failure to correct violations.

 

A copy of the Notice of Contest must be given to the employees'

authorized representative. If any affected employees are not

represented by a recognized bargaining agent, a copy of the notice

must be posted in a prominent location in the workplace, or else

served personally upon each unrepresented employee.

 

Appeal Review Procedure

 

If the written Notice of Contest has been filed within the required

15 working days, the OSHA area director forwards the case to the

Occupational Safety and Health Review Commission (OSHRC). The

Commission is an independent agency not associated with OSHA or the

Department of Labor. The Commission assigns the case to an

administrative law judge.

 

The judge may disallow the contest if it is found to be legally

invalid, or a hearing may be scheduled for a public place near the

employer's workplace. The employer and the employees have the right

to participate in the hearing; the OSHRC does not require that they

be represented by attorneys.

 

Once the administrative law judge has ruled, any party to the case

may request a further review by OSHRC. Any of the three OSHRC

commissioners also may, at his or her own motion, bring a case

before the Commission for review. Commission rulings may be

appealed to the appropriate U.S. Court of Appeals.

 

Appeals In State-Plan States

 

States with their own occupational safety and health programs have

a state system for review and appeal of citations, penalties, and

abatement periods. The procedures are generally similar to Federal

OSHA's, but cases are heard by a state review board or equivalent

authority.

 

Relation to State, Local and Other Federal Laws

 

As discussed above in the section titled "Who is Covered," Federal

OSHA has jurisdiction over workplace safety and health issues in

all states that do not operate their own OSHA-approved programs. In

fact, any occupational safety and health issues regulated by a

state that does not have an OSHA-approved program are preempted by

OSHA jurisdiction.

 

The agency also covers all working conditions that are not covered

by safety and health regulations of some other federal agency under

other legislation. Industries where such regulations frequently

apply include most transportation industries (rail, air and highway

safety are under the Department of Transportation), nuclear

industries (covered either by the Department of Energy or the

Nuclear Regulatory commission) and mining (covered by the

Department of Labor's Mine Safety and Health Administration, and

discussed elsewhere in this publication). OSHA also has the

authority to monitor the safety and health of federal employees.

 

 

5. EMPLOYEE BENEFIT PLANS

 

Employee Retirement Income Security Act (ERISA), 29 USC §1001 et

seq., 29 CFR §2509 et seq.

 

Who is Covered

 

The provisions of Title I of ERISA are intended to require

compliance from most private sector employee benefit plans.

Employee benefit plans are voluntarily established and maintained

by an employer, an employee organization, or jointly by one or more

such employers and the employee organization. Employee benefit

plans which are pension plans are established and maintained to

provide retirement income or to defer income to termination of

covered employment or beyond. Employee benefit plans which are

welfare plans are established and maintained to provide, through

insurance or otherwise, health benefits, disability benefits, death

benefits, prepaid legal services, vacation benefits, day care

centers, scholarship funds, apprenticeship and training benefits,

or other similar benefits.

 

In general, ERISA does not cover plans established or maintained by

governmental entities or churches for their employees, or plans

which are maintained solely to comply with applicable workers

compensation, unemployment or disability laws. ERISA also does not

cover plans maintained outside the United States primarily for the

benefit of nonresident aliens or unfunded excess benefit plans.

 

Basic Provisions/Requirements

 

ERISA sets uniform minimum standards to assure the equitable

character of employee benefit plans and their financial soundness

to provide workers with benefits promised by their employers. In

addition, employers have an obligation to provide promised benefits

 

and satisfy ERISA's requirements on managing and administering

private pension and welfare plans. The Department's Pension and

Welfare Benefits Administration (PWBA), together with the Internal

Revenue Service (IRS), carries out its statutory and regulatory

authority to assure that workers receive the promised benefits. The

Department has principal jurisdiction over Title I of ERISA, which

requires persons and entities who manage and control plan funds to:

Carry out their duties in a prudent manner and refrain from

conflict-of-interest transactions expressly prohibited by law, for

the exclusive benefit of participants and beneficiaries

Comply with limitations on certain plans' investments in employer

securities and properties

 

Fund benefits in accordance with the law and plan rules

Report and disclose information on the operations and financial

condition of plans to the government and participants

Provide documents required in the conduct of investigations to

assure compliance with the law

 

The IRS administers Title II of ERISA, which includes vesting

participation, discrimination and funding standards.

 

Reporting and Disclosure

 

Part 1 of Title I requires the administrator of an employee benefit

plan to furnish participants and beneficiaries with a summary plan

description (SPD), describing in understandable terms, their

rights, benefits and responsibilities under the plan. Plan

administrators are also required to furnish participants with a

summary of any material changes to the plan or changes to the

information contained in the summary plan description. Generally,

copies of these documents must be filed with the Department.

In addition, the administrator must file an annual report (Form

5500 Series) each year containing financial and other information

concerning the operation of the plan. Plans with 100 or more

participants must file the Form 5500. Plans with fewer than 100

participants file the Form 5500-C at least every third year and may

file a Form 5500-R, an abbreviated report, in the two intervening

years. The forms are filed with the Internal Revenue Service, which

furnishes the information to the Department of Labor. Welfare

benefit plans with fewer than 100 participants that are fully

insured or unfunded (i.e., benefits are provided exclusively

through insurance contracts where the premiums are paid directly

from the general assets of the employer or the benefits are paid

from the general assets of the employer) are not required to file

an annual report under regulations issued by the Department. Plan

administrators must furnish participants and beneficiaries with a

summary of the information in the annual report.

 

The Department's regulations governing reporting and disclosure

requirements are set forth at 29 CFR §2520.101-1 et seq.

 

Fiduciary Standards

 

Part 4 sets forth standards and rules governing the conduct of plan

fiduciaries. In general, persons who exercise discretionary

authority or control regarding management of a plan or disposition

of its assets are "fiduciaries" for purposes of Title I of ERISA.

Fiduciaries are required, among other things, to discharge their

duties solely in the interest of plan participants and

beneficiaries and for the exclusive purpose of providing benefits

and defraying reasonable expenses of administering the plan. In

discharging their duties, fiduciaries must act prudently and in

accordance with documents governing the plan, to the extent such

documents are consistent with ERISA. Certain transactions between

an employee benefit plan and "parties in interest," which include

the employer and others who may be in a position to exercise

improper influence over the plan, are prohibited by ERISA. Most of

these transactions are also prohibited by the Internal Revenue Code

("Code"). The Code imposes an excise tax on "disqualified persons"

-- whose definition generally parallels that of parties in interest

-- who participate in such transactions.

 

Exemptions

 

Both ERISA and the Code contain various statutory exemptions from

the prohibited transaction rules and give the Departments of Labor

and Treasury, respectively, authority to grant administrative

exemptions and establish exemption procedures. Reorganization Plan

No. 4 of 1978 transferred the authority of the Treasury Department

over prohibited transaction exemptions, with certain exceptions, to

the Labor Department.

 

The statutory exemptions generally include loans to participants,

the provision of services necessary for operation of a plan for

reasonable compensation, loans to employee stock ownership plans,

and investment with certain financial institutions regulated by

other State or Federal agencies. (See ERISA section 408 for the

conditions of the exemptions.)  Administrative exemptions may be

granted by the Department on a class or individual basis for a wide

variety of proposed transactions with a plan. Applications for

individual exemptions must include, among other information:

 

Percentage of assets involved in the exemption transaction

 

The names of persons with investment discretion

 

Extent of plan assets already invested in loans to, property leased

by, and securities issued by parties in interest involved in the

transaction

 

Copies of all contracts, agreements, instruments and relevant

portions of plan documents and trust agreements bearing on the

exemption transaction

 

Information regarding plan participation in pooled funds when the

exemption transaction involves such funds

 

Declaration, under penalty of perjury by the applicant, attesting

to the truth of representations made in such exemption submissions

Statement of consent by third-party experts acknowledging that

their statement is being submitted to the Department as part of an

exemption application

 

The Department's exemption procedures are set forth at 29 CFR

§2570.30 through 2570.51.

 

Enforcement

 

ERISA imposes substantial law enforcement responsibilities on the

Department. Part 5 of ERISA Title I  gives the Department authority

to bring a civil action to correct violations of the law, gives

investigative authority to determine whether any person has

violated Title I, and imposes criminal penalties on any person who

willfully violates any provision of Part 1 of Title V.

 

Continuation Health Coverage

 

Continuation health care provisions were enacted as part of the

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).

These provisions cover group health plans of employers with 20 or

more employees on a typical working day in the previous calendar

year. COBRA gives participants and beneficiaries an election to

maintain at their own expense coverage under their health plan at

a cost that is comparable to what it would be if they were still

members of the employer's group. Employers and plan administrators

have an obligation to determine specific rights of beneficiaries

with respect to election, notification and type of coverage

options. (See 29 USC §§1161 through 1168). Plans must give covered

individuals an initial general notice informing them of their

rights under COBRA and describing the law. Plan administrators are

required to provide specific notices when certain events occur. In

most instances of employee death, termination, reduced hours of

employment, entitlement to Medicare, or bankruptcy, it becomes the

employer's responsibility to provide a specific notice to the plan

administrator.

 

The Department has limited regulatory and interpretative

jurisdiction over COBRA provisions. Its responsibility includes the

COBRA notification and disclosure provisions.

 

Jurisdiction of the Internal Revenue Service

 

The IRS has regulatory and interpretative responsibility for all

provisions of COBRA not under DOL's jurisdiction. (See IRS proposed

regulations in the Federal Register of June 14, 1987 (52 FR

22716).) In addition, ERISA provisions relating to participation,

vesting, funding and benefit accrual, contained in parts 2 and 3 of

Title I, are generally administered and interpreted by the Internal

Revenue Service.

 

Assistance Available

 

PWBA has numerous general publications designed to assist employers

and employees in understanding their obligations and rights under

ERISA. Publications -- a listing of PWBA booklets and pamphlets --

is available by writing to: Publications Desk, PWBA, Division of

Public Affairs, Room N-5511, 200 Constitution Ave., NW, Washington,

DC 20210.

 

In addition, employee benefit plan documents and other materials

are available from the PWBA Public Disclosure Room. This facility

may be used to view and to obtain copies of materials on file.

Materials include: summary plan descriptions, Form 5500 Series

reports, Master Trust reports, 103-12 Investment Entity Reports,

Common or Collective Trust or Pooled Separate Account direct

filings, Apprentice and Other Training Plans notices, "Top Hat"

plan statements, advisory opinions, announcements and transcripts

of public hearings and proceedings.

 

The PWBA Public Disclosure Room is open to the public Monday

through Friday, from 8:30 a.m. to 4:30 p.m. Copies of materials are

available at a cost of 15 cents per page by ordering in person or

writing to: PWBA Public Disclosure Room, U.S. Department of Labor,

Room N-5507, 200 Constitution Ave., NW, Washington, DC  20210.

Given the complexity of ERISA requirements, employers may seek the

assistance of an attorney, CPA firm, investment or brokerage firm,

and other employee benefit consultants in complying with the law.

 

Penalties

 

PWBA has authority to assess civil penalties for reporting

violations and prohibited transactions involving a plan under ERISA

Section 502(c). A penalty of up to $1,000 per day may be assessed

against plan administrators who fail to or refuse to comply with

annual reporting requirements. Section 502(i) gives the agency

authority to assess civil penalties against parties in interest who

engage in prohibited transactions with welfare and nonqualified

pension plans. The penalty can range from five percent to 100

percent of the amount involved in a transaction. A parallel

provision of the Code directly imposes an excise tax against

disqualified persons, including employee benefit plan sponsors and

service providers, who engage in prohibited transactions with

tax-qualified pension and profit sharing plans. Finally, the

Department is required under Section 502(l) to assess mandatory

civil penalties equal to 20 percent of any amount recovered with

respect to fiduciary breaches resulting from either a settlement

agreement with the Department or a court order as the result of a

lawsuit by the Department.

 

Relation to State, Local and Other Federal Laws

 

Part 5 of Title I provides that the provisions of ERISA Titles I

and IV supersede state and local laws which "relate to" an employee

benefit plan. ERISA, however, saves certain state and local laws

from ERISA preemption, including certain exceptions for state

insurance regulation of multiple employer welfare arrangements

(MEWAs). MEWAs generally constitute employee welfare benefit plans

or other arrangements providing welfare benefits to employees of

more than one employer, not pursuant to a collective bargaining

agreement.

 

In addition, ERISA's general prohibitions against assignment or

alienation of pension benefits does not apply to qualified domestic

relations orders. These orders must be made pursuant to state

domestic relations law and award all or part of a participant's

benefit in the form of child support, alimony, or marital property

rights to an alternative payee (spouse, former spouse, child or

other dependent). Plan administrators must comply with the terms of

such orders.

 

 

6. WHISTLEBLOWER PROTECTION

 

Employee Protection (Whistleblower) Provisions -- Clean Air Act

(Title 42 U.S. Code, Section 7622); Comprehensive Environmental

Response, Compensation and Liability Act (Title 42 U.S. Code,

Section 9610); Energy Reorganization Act of 1974 (Title 42 U.S.

Code, Section 5851); Safe Drinking Water Act (Title 42 U.S. Code,

Section 300j-9(i)); Solid Waste Disposal Act (Title 42 U.S. Code,

Section 6971); Toxic Substances Control Act (Title 15 U.S. Code,

Section 2622); Federal Water Pollution Control Act (Title 33 U.S.

Code, Section 1367); 29 CFR 24).

 

Who is covered

 

These environmental Acts provide protection from discharge or other

discriminatory actions by employers in retaliation for employees'

good faith complaints about safety and health hazards in the

workplace. The Acts cover all private sector employers.

 

Basic Provisions/Requirements

 

The employee protection provisions of these Acts prohibit employers

from discharging or otherwise discriminating against employees in

retaliation for their disclosure of safety and health hazards to

the employer or to the appropriate federal agency. They also

protect employee participation in formal government proceedings in

connection with safety and health hazards. The Acts specifically

exclude from protection the disclosure of hazards deliberately

caused by an employee. Additionally, the statutes do not protect

"frivolous" complaints. Employees have the right under the Acts to

refuse to work in hazardous or unsafe situations.

 

Employees who believe they have been discriminated against in

violation of these protective provisions may file a complaint,

within 30 days of the alleged violation, with the Employment

Standards Administration's Wage and Hour Division.

 

Assistance Available

More detailed information, including copies of explanatory

brochures and regulatory and interpretative materials, may be

obtained by contacting the offices listed beginning on page 53 in

the appendix.

 

Penalties

 

Upon receipt of a complaint, the Wage and Hour Division conducts an

investigation to determine whether a violation has occurred. When

a violation has occurred, the employer is notified of the violation

determination and efforts are made to conciliate the situation. The

employer may appeal a violation determination to an administrative

law judge, if done within 5 calendar days of the notification of

the determination. The administrative law judge's decision is

referred to the Secretary of Labor for a final order. The Secretary

may affirm or set aside the administrative law judge's decision.

Where the Secretary concludes that a violation has occurred,

his/her final order may instruct the employer to take affirmative

action to abate the violation and provide for appropriate relief,

which may include restoration of back pay, employment status and

benefits. The Secretary may also order the employer to provide

compensatory damages to the employee. If dissatisfied with the

Secretary's decision, the employer may appeal in federal court.

Final determinations on violations are enforceable through the

courts. The employee is entitled to similar appeal rights under the

Acts.

 

Relation to State, Local and Other Federal Laws

The current whistleblower programs do not preempt existing state

statutes and common law claims. All provisions contained in the

programs are in addition to protection provided by state laws.

 

 

7. VETERANS

 

Veterans' Reemployment Rights Act (VRR).

 

Who is Covered

 

VRR applies to persons who are inducted into the Armed Forces, to

persons who volunteer directly for active duty and to Reservists

and members of the National Guard who are called to active duty

either voluntarily or involuntarily. In addition, VRR covers

members of the Reserves and National Guard during initial active

duty training, active duty for training and inactive duty training.

 

Basic Provisions/Requirements

 

Veterans returning from active duty must meet the following five

eligibility requirements to be covered by VRR:

Held an "other than temporary" (not necessarily "permanent")

civilian job

 

Left the civilian job for the purpose of going on active duty

Did not remain on active duty longer than 4 years, unless the

period beyond 4 years (up to an additional year) was "at the

request and for convenience of the Federal Government"

Was discharged or released from active duty "under honorable

conditions"

 

Applied for reemployment with the pre-service employer or successor

in interest within 90 days after separation from active duty

Eligible veterans are entitled to reinstatement within a reasonable

time to a position of like seniority, status and pay. In addition,

the returning veterans do not step back on the seniority escalator

at the point they stepped off. Rather the veterans step back on at

the precise point that they would have occupied had they kept the

position continuously during the military service.

 

VRR provides that a reservist or member of the National Guard shall

upon request be granted a leave of absence by such person's

employer to perform active duty training or inactive duty training

and that the employee shall not be denied retention in employment

or any promotion or other incident or advantage of employment

because of any obligation as a member of a Reserve component of the

Armed Forces. In addition, while the employer is not required to

pay the Reservist or National Guard member for the hours or days

not worked because of military training obligations, it is unlawful

to require the employee to use earned vacation time for military

training.

 

A person who leaves a civilian job in order to perform active duty

is not required to request a leave of absence or even to notify the

employer that military service is the reason for leaving the job,

although such a person is encouraged to provide the employer with

as much information as possible. However, a Reservist or member of

the National Guard must request a leave of absence when leaving the

civilian job to perform active duty training or inactive duty

training.

 

VRR is enforced by DOL's Veterans' Employment and Training Service

(VETS).

 

Assistance Available

 

VETS has published two fact sheets covering the veteran

reemployment and job rights. These are OASVET 90-09 entitled "Job

Rights for Reservists and Members of the National Guard" and OAVET

90-10 entitled "Reemployment Rights for Returning Veterans."

Copies of these and other VETS' publications or answers to

questions on VRR may be obtained from the nearest VETS office, as

listed beginning on page 67 in the appendix.

 

Penalties

Not Applicable.

 

Relation to State, Local and Other Federal Laws

The VRR does not preempt state laws providing greater or additional

rights, but it does preempt state laws providing lesser rights or

imposing additional eligibility criteria.

 

 

8. PLANT CLOSINGS AND MASS LAYOFFS

 

Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C.

2101 et seq.; 20 CFR Part 639.

 

Who is Covered

 

In general, employers are covered by WARN if they have 100 or more

employees, not counting employees who have worked less than 6

months in the last 12 months and not counting employees who work an

average of less than 20 hours a week. Regular federal, state and

local government entities which provide public services are not

covered. Employees entitled to notice under WARN include hourly and

salaried workers, as well as managerial and supervisory employees.

 

Basic Provisions/Requirements

 

WARN requires employers to provide notice 60 days in advance of

covered plant closings and covered mass layoffs. This notice must

be provided to affected workers or their representatives (e.g., a

labor union), to the state dislocated worker unit, and to the

appropriate local government.

 

A covered plant closing occurs when a facility or operating unit is

shut down for more than 6 months, and 50 or more workers lose their

jobs as a result during a 30-day period. A covered mass layoff

occurs when a layoff of 6 months or longer affects 500 or more

workers, or 33 percent or more of the employer's workforce when the

layoffs affect between 50 and 499 workers. The number of affected

workers is the total number laid off during a 30-, or in some cases

90-, day period.

 

WARN does not apply to the closing of temporary facilities, or the

completion of an activity when the workers were hired only for the

duration of that activity. WARN also provides for less than 60 days

notice when the layoffs were the result of the closing a faltering

company, unforeseeable business circumstances, or a natural

disaster.

 

Assistance Available

 

The Department of Labor has published a pamphlet entitled "A Guide

to Advance Notice of Closings and Layoffs," which describes the

Worker Adjustment and Retraining Notification Act. Requests for

copies of the pamphlet, or general questions on the regulations,

may be addressed to:

 

U.S. Department of Labor

Employment and Training Administration

Office of Work-Based Learning

Room N-4469

200 Constitution Avenue, N.W. Washington, DC 20210

(202) 219-5577 (not a toll-free number)

 

The Department, since it does not have administrative or

enforcement authority under WARN, cannot provide specific advice or

guidance with respect to individual situations.

 

Penalties

 

An employer who violates the WARN provisions is liable to each

employee for an amount equal to back pay and benefits for the

period of the violation, up to 60 days. This may be reduced by the

period of any notice that was given, and any voluntary payments

made by the employer to the employee.

 

An employer who fails to provide the required notice to the unit of

local government is subject to a civil penalty not to exceed $500

for each day of violation. This may be avoided if the employer

satisfies the liability to each employee within 3 weeks after the

closing or layoff.

 

Enforcement of WARN requirements is through the United States

district courts. Workers, or their representatives, and units of

local government may bring individual or class action suits. The

Court may allow reasonable attorney's fees as part of any final

judgement.

 

Relation to State, Local and Other Federal Laws

 

WARN is in addition to, and does not preempt any other federal,

state or local law, or any employer/employee agreement which

requires other notification or benefit.

 

 

9. LIE DETECTOR TESTS

 

Employee Polygraph Protection Act of 1988  (29 U.S. Code, Section

2001 et seq.; 29 CFR Part 801).

 

Who is Covered

 

The Employee Polygraph Protection Act (EPPA) applies to most

private employers. Federal, state and local governments are not

covered by the law.

 

Basic Provisions/Requirements

 

The EPPA prohibits most private employers from using lie detector

tests either for pre-employment screening or during the course of

employment.

 

Employers are generally prohibited from requiring or requesting any

employee or job applicant to take a lie detector test, and from

discharging, disciplining, or discriminating against an employee or

prospective employee 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, a prospective employee, or a former employee

for refusal to take a test, on the basis of the results of a test,

or for filing a complaint, or participating in a proceeding under

the Act.

 

The Act permits polygraph (a type of lie detector) tests to be

administered, subject to restrictions, to certain prospective

employees of security service firms (armored car, alarm, and

guard), and of pharmaceutical manufacturers, distributors and

dispensers.

 

The Act also permits polygraph testing, subject to restrictions, 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 permitted, they are subject to

strict standards concerning the conduct of the test, including the

pretest, testing and post-testing phases. An examiner must also be

licensed and bonded or have professional liability coverage. The

Act strictly limits the disclosure of information obtained during

a polygraph test.

 

Assistance Available

 

The Act is administered and enforced by the Employment Standards

Administration's Wage and Hour Division. More detailed information,

including copies of explanatory brochures and regulatory and

interpretative materials, may be obtained by contacting the offices

listed beginning on page 53 in the appendix.

 

Penalties

 

The Secretary of Labor can bring court action to restrain violators

and assess civil money penalties up to $10,000 per violation

against violators. Employers who violate 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.

 

Relation to State, Local and Other Federal Laws

 

The law does not preempt any provision of any state or local law or

any collective bargaining agreement which is more restrictive with

respect to lie detector tests.

 

 

10. WAGE GARNISHMENT

 

Title III, Consumer Credit Protection Act (15 U.S. Code, Sections

1671 et seq; 29 CFR 870).

 

Who is Covered

 

Title III of the Consumer Credit Protection Act (CCPA) protects

employees from being discharged by their employers because of

garnishment for any one indebtedness and limits the amount of

employees' earnings which may be garnished in any one week. Title

III applies to all individuals who receive personal earnings and to

their employers. Personal earnings include wages, salaries,

commissions, bonuses and income from a pension or retirement

program but does not ordinarily include tips.

The law applies in all 50 states, the District of Columbia, Puerto

Rico and all U.S. territories and possessions.

 

Basic Provisions/Requirements

 

Wage garnishment is a legal procedure through which the earnings of

an individual are required by court order to be withheld by an

employer for the payment of a debt. Title III prohibits an employer

from discharging an employee whose earnings have been subject to

garnishment for any one debt, regardless of the number of levies

made or proceedings brought to collect it. It does not, however,

protect an employee from discharge if the employee's earnings have

been subject to garnishment for a second or subsequent debts.

 

Title III also protects employees by limiting the amount of their

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 the number

of garnishment orders received by an employer. The federal minimum

wage is $4.25 per hour.

 

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 another spouse or child, and up to 60

percent for an employee who is not. An additional 5 percent may be

garnished for support payments which are more than 12 weeks in

arrears.

 

"Disposable earnings" is the amount of employee earnings left after

legally required deductions have been made for federal, state and

local taxes, Social Security, unemployment insurance and state

employee retirement systems. Other deductions which are not

required by law, e.g., union dues, health and life insurance, and

charitable contributions, are not subtracted from gross earnings

when calculating the amount of disposable earnings for garnishment

purposes.

 

Title III specifies that garnishment restrictions do not apply to

bankruptcy court orders and debts due for federal and state taxes.

Nor does it affect voluntary wage assignments, i.e., situations in

which workers voluntarily agree that their employers may turn over

some specified amount of their earnings to a creditor or creditors.

 

Assistance Available

 

Title III is administered and enforced by the Employment Standards

Administration's Wage and Hour Division. More detailed information,

including copies of explanatory brochures and regulatory and

interpretative materials, may be obtained by contacting the offices

listed beginning on page 53 in the appendix.

 

Penalties

 

Violations of Title III may result in the reinstatement of a

discharged employee, with back pay, and the correction of improper

garnishment amounts. Where violations cannot be resolved through

informal means, court action may be initiated to restrain 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.

 

Relation to State, Local and Other Federal Laws

 

If a state wage garnishment law differs from Title III, the law

resulting in the smaller garnishment, or prohibiting the discharge

of any employee because his or her earnings have been subject to

garnishment for more than one indebtedness must be observed.

 

 

APPENDIX

 

Wage and Hour Division

 

National Office

 

Office of Program Operations

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room S-3028

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 219-8353

 

Division of Farm Labor, Child Labor, and Polygraph Standards

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room S-3510

200 Constitution Ave., N.W.

Washington, D.C.  20210

(202) 219-4670

 

Division of Contract Standards Operations

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room S-3018

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 219-7541

 

Division of Fair Labor Standards Act Operations

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room S-3516

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 219-1407

 

Division of Wage Determinations

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room S-3014

200 Constitution Ave., N.W.

Washington, D.C. 20210

(202) 219-7531

 

Regional Administrators

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room 750

201 Varick St.

New York, New York 10014

(212) 337-2000

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room 662

1375 Peachtree St., N.E.

Atlanta, Georgia 30367

(404) 347-4801

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Federal Building, S. 800

525 S. Griffin St.

Dallas, Texas 75202

(214) 767-6894

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Federal Office Building

1801 California St., S. 930

Denver, Colorado 80202-2614

(303) 391-6780

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

1111 Third Ave., S. 600

Seattle, Washington 98101

(206) 553-1914

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

One Congress St., 11th Fl.

Boston, Massachusetts 02114

(617) 565-2066

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room 15230

Gateway Building

3535 Market St.

Philadelphia, Pennsylvania 19104

(215) 596-1185

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, Room 820

230 South Dearborn St.

Chicago, Illinois 60604

(312) 353-7280

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Federal Office Building, Room 2000

911 Walnut St.

Kansas City, Missouri 64106

(816) 426-5381

 

Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor, S. 930

71 Stevenson St.

San Francisco, California 94105

(415) 744-6645

 

Office of Federal Contract Compliance Programs

 

OFCCP/ESA

U.S. Department of Labor

200 Constitution Ave., N.W.

Washington, DC  20210

(202) 219-9475

 

OFCCP/ESA

U.S. Department of Labor

One Congress St., 11th Fl.

Boston, MA  02114

(617) 565-2055

 

OFCCP/ESA

U.S. Department of Labor

201 Varick St., Room 750

New York, NY  10014

(212) 337-2006

 

OFCCP/ESA

U.S. Department of Labor

Gateway Building, Room 15340

3535 Market St.

Philadelphia, PA  19104

(215) 596-6168

 

OFCCP/ESA

U.S. Department of Labor, S. 678

1375 Peachtree St., N.E.

Atlanta, GA  30367

(404) 347-3200

 

OFCCP/ESA

U.S. Department of Labor

New Federal Building, Room 570

230 South Dearborn St.

Chicago, IL  60604

(312) 353-0335

 

OFCCP/ESA

U.S. Department of Labor

Federal Building, Room 840

525 South Griffin St.

Dallas, TX  75202

(214) 767-4771

 

OFCCP/ESA

U.S. Department of Labor

911 Walnut St., Room 2011

Kansas City, MO  64106

(816) 426-5384

 

OFCCP/ESA

U.S. Department of Labor

Federal Office Building, S. 935

1801 California St.

Denver, CO  80202

(303) 844-5011

 

OFCCP/ESA

U.S. Department of Labor

71 Stevenson St., S. 910

San Francisco, CA  94105

(415) 744-6640

 

OFCCP/ESA

U.S. Department of Labor, S. 610

1111 Third Ave.

Seattle, WA  98101

(206) 553-4508

 

Occupational Safety and Health Administration

 

State Program Offices

 

Alaska Department of Labor

1111 West 8th St., Room 306

Juneau, AK 99802

(907) 465-2700

 

Industrial Comm. of Arizona

800 W. Washington

Phoenix, AZ 85007

(602) 542-5795

 

California Dept. of Industrial Relations

455 Golden Gate Ave., 4th Fl.

San Francisco, CA 94102

(415) 703-4590

 

Connecticut Dept. of Labor

200 Folly Brook Blvd.

Wethersfield, CT 06109

(203) 566-5123

 

Hawaii Dept. of Labor and Industrial Relations

830 Punchbowl St.

Honolulu, HI 96813

(808) 586-8844

 

Indiana Dept. of Labor