I. INTRODUCTION
Several federal and state labor laws contain provisions, which prescribe the minimum number of employees that will trigger coverage and compliance. These “threshold” provisions reflect a legislative intent to exempt smaller employers from the costs of these mandates and regulations. As various legislative acts have been enacted with different thresholds, many questions are fielded regarding the number of employees required to trigger either a federal or state law. The following is a summary of laws that may affect either the bank or related business activities.
II. FEDERAL LAWS
Civil Rights Act of 1866
This act prohibits discrimination based upon race or ethnicity and is applicable to employers with one or more employees.
Federal Insurance Contribution’s Act of 1935 (FICA; Social Security)
The provisions of this act apply generally to any employer with one or more covered employees, full or part time, permanent or temporary.
Fair Labor Standards Act of 1938 (FLSA)
The FLSA sets the minimum wage, regulates overtime pay, provides recordkeeping requirements and sets child labor standards for covered employers with one or more employees. “Covered employers” include employers with annual gross sales or business volume of $500,000 or more. Employees of firms not covered by the FLSA may remain subject to minimum wage, overtime and child labor provisions if they are individually involved in the production of goods for interstate commerce.
Equal Pay Act of 1963
An amendment to the FLSA (See, above), the Equal Pay Act prohibits any employer of one or more employees (who are engaged in commerce or in the production of goods for commerce or who are employed by an enterprise engaged in commerce or in the production of goods for commerce) to pay employees who perform the same work at different rates of pay based upon gender.
Civil Rights Act of 1964 (Title VII)
This antidiscrimination act (the “protected classes” are race, color, sex, religion, and national origin) applies to businesses with 15 or more employees.
Executive Order 11246 (1965)
Executive Order 11246 and later amendatory orders [11375 (1967) and 11478 (1969)] are applicable to “federal contractors.” A financial institution may be a federal contractor if it serves as a depository of government funds (any amount), is an issuing and paying agent for U.S. savings bonds and notes or lends to an entity to enable it to perform a federal contract. Enforced by the Office of Federal Contract Compliance Programs (OFCCP), a federal contractor employer with 50 or more employees is required to have a written affirmative action plan and employment goals. A federal contractor employer with less than 50 employees need not have a written affirmative action plan, but must comply with the Equal Employment Opportunity clause of Executive Order 11246 that provides for non-discrimination of the basis of race, color, religion, sex or national origin and provides for the taking of affirmative action with respect to the treatment of such protected classes.
Age Discrimination Employment Act of 1967
The law prohibits the forced retirement of employees before age 70 and covers businesses with 20 or more employees.
Vocational Rehabilitation Act of 1973
This act prohibits any “federal contractor” (See, definition in Executive Order 11246 above) from discriminating against qualified individuals with disabilities and requires the reasonable accommodation of such persons. Federal contractor employers with 50 or more employees must develop written affirmative action plans, but are not required to have employment goals.
Vietnam Era Veterans’ Readjustment Assistance Act of 1974
This act prohibits discrimination against any qualified disabled veteran or any veteran of the Vietnam era and is applicable to any “federal contractor” (See, definition in Executive Order 11246 above). Federal contractor employers with 50 or more employees must develop written affirmative action plans, but are not required to have employment goals.
Consumer Credit Protection Act of 1986 (CCPA)
The CCPA is applicable to all employers with one or more employees. The act limits the amount of an employee’s earnings that the employer may be required to withhold from wages to pay off any one debt and makes it unlawful for an employer to discharge or take adverse action against any employee for garnished wages for any one indebtedness.
The Fair Credit Reporting Act (FCRA) is a part of the CCPA and it also restricts the availability and use of consumer and investigative reports for employment purposes, regulates reporting agency standards and grants individuals the ability to challenge and correct credit reports. The FCRA was further amended (effective in 1997) to provide that employers desiring to use consumer credit or investigative reports (including criminal background and driving record checks) must: disclose to applicants and employees that a report may be obtained; obtain written authorization from applicant or employee prior to getting a report; and provide certain information in employment is denied because of the contents of the report; and provide applicants with a copy of the FTC’s Consumer Rights Notice.
Occupational Safety and Health Act of 1970 (OSHA)
Although OSHA covers all private employers that employ one or more persons, full or part-time, permanent or temporary, certain compliance and reporting duties to this workplace safety law cover companies with 11 or more employees. The intent of the act is to promote workplace safety.
Employee Retirement Income Security Act of 1974 (ERISA)
This law regulates pension and welfare benefit plans and it applies to firms, depending on the benefit plans involved, with varying thresholds of employees: from one or more to 100 or more employees.
Pregnancy Discrimination Act of 1978 (PDA)
Employers with 15 or more employees are subject to the PDA which prohibits employers from refusing to hire, discharging or otherwise discriminating against employees due to pregnancy, childbirth, decision to abort or pregnancy-related medical condition.
Consolidated Omnibus Reconciliation Act of 1986 (COBRA)
A major provision of this act allows for the extension of group insurance coverage to employees or their dependents on a self-funded basis for varying periods of time after eligible triggering events and applies to employers with 20 or more employees.
Omnibus Reconciliation Act of 1986
A provision of this law prohibits the termination of a current employee’s pension accrual due to age and is applicable to employers with 20 or more employees.
Immigration Reform and Control Act of 1986
The employment of illegal aliens is prohibited, however an employer cannot refuse to hire anyone the employer believes to be an illegal immigrant, but is not. The law covers anyone that employs 4 or more employees.
Emergency Planning and Community Right to Know Act of 1986
Toxic chemicals used in manufacturing or processing are to be reported and the law applies to firms with 10 or more employees.
Employee Polygraph Protection Act of 1988
This act prohibits most private employers from using polygraph or other “lie detector” type of tests for pre-employment screening purposes, with very limited exceptions. In the limited circumstances where testing is allowed, examinees are given several rights, including the right to terminate the test at any time. The act applies to employers with one or more employees.
Worker Adjustment and Retraining Notification Act of 1988 (WARN)
Often referred to as the “plant closing” law, the act applies to businesses with 50 or more employees and requires a 60 day written notification prior to major layoffs or plant closings.
Clean Air Act Amendments of 1990
Applicable to firms with 100 or more employees, effective in October of 1995, employers in targeted regions and states must implement plans to increase the average occupancy of employee commuting vehicles by 25%.
Older Workers Benefit Protection Act of 1990
Employee benefits, pensions and early retirement benefits are subject to the Age Discrimination Employment Act and the law applies to employers with 20 or more employees. This provision also applies ADEA coverage to anyone over age 40.
Americans with Disabilities Act of 1990 (Title I)
The employment title of this law (Title I) is applicable to companies of 15 or more employees and bans discrimination in employment of people with disabilities.
Civil Rights Act of 1991
This expansion of the 1964 act is applicable to firms with 15 or more employees.
Family Medical Leave Act of 1993
This act requires up to 12 work weeks of leave for the husband or wife upon the birth or adoption of a child or sickness in the family and is applicable to businesses with 50 or more employees.
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
This act prohibits discrimination in the hiring, job retention, promotion and benefits of military applicants and employees, provides for the right of reemployment without loss of seniority, status or pay and grants protections for disabled veterans. The USERRA replaces the former Veteran’s Reemployment Rights Act. Employers with one or more employees are covered by the USERRA.
Genetic Information Non-Discrimination Act of 2008 (GINA)
This act, took effect on November 21, 2009, and prohibits discrimination in employment and health coverage on the basis of genetic information. The law applies to employers with 15 or more employees.
III. STATE LAWS
Nebraska Fair Employment Practice Act
This anti-discrimination act applies to employers with 15 or more employees.
Age Discrimination in Employment Act
The law prohibits discrimination of employees between the ages of 40 to 70 years and applies to companies employing 20 or more employees.
Continuation of Group Insurance Coverage
Provisions of the Nebraska Group Insurance laws require extension of group insurance coverage to employees or their dependents on a self-funded basis for varying periods of time after eligible triggering events and applies to employers with 19 or fewer employees.
IV. LOCAL ORDINANCES
We are aware that there are local ordinances in Omaha, Lincoln and Grand Island that also prohibit employment discrimination. Bankers in these cities should review the applicable ordinances for applicability. In some cases, they may be broader in scope than Nebraska State statutes. The following summarizes the thresholds in the municipal ordinances.
Lincoln
The Lincoln Commission on Human Rights prohibits similar types of discrimination as Nebraska statutes and applies to employers with four or more employees (§§ 11.0.010 – 11.01.070).
Omaha
The Omaha Civil Rights Hearing Board prohibits similar types of discrimination as Nebraska statutes and applies to employers with six or more employees (§§ 13-81 – 13-98, 13-116 –13-222).
Grand Island
The Grand Island Commission on Human Rights prohibits similar types of discrimination as Nebraska statutes and applies to employers with one or more employees (§§ 11-8 – 11-15).