In the previous chapter, we covered laws relating to various aspects of fair employment. These are the laws that many of us are most concerned about, but there are other laws that are just as important. These include laws governing wages and hours, immigration laws, laws on labor relations, and more recently a law that requires employers to give employees time off to deal with family and medical problems. Let’s see how these affect your human resources responsibilities.

Until the administration of Franklin D. Roosevelt, there were no federal laws governing wages and hours. Although some states had such laws, unless there was a union, employers could pay as much or as little as the market would bear, and workers could be required to work long hours without extra compensation. The first comprehensive federal law regulating wages and hours was the Fair Labor Standards Act of 1938. Over the years it has been amended many times and is still the basic law governing these issues.

The minimum wage is established periodically by Congress and has become something of a political football. Every few years it is raised to be at least congruent with the cost of living, but the exact amount of the increase is always a battle between the “pro-labor” groups, which want it to be high, and the “pro-employer” groups, which fight to keep it down. In addition, the relationship between the available supply and demand for workers in various fields influences Congress in making these decisions. For example, when demand for workers is high, wages go up no matter what the law requires. During the past few years when most wages have been high, Congress has not changed the minimum wage, even though there are still many workers being paid low rates. The pressure to raise the rate has been mitigated by the higher wages paid to most workers.

The one standard that has been consistent since the passage of the original act has been the 40-hour work week. Nonexempt employees must be paid at the rate of one and one half their hourly pay for each hour in excess of 40 hours worked in any week. Exempt employees need not be paid for overtime.

If you have any question about whether a job is considered exempt, contact the local office of the U.S. Department of Labor (listed in the phone book under U.S. Government) for specific rulings. Most states have similar laws. Inasmuch as some state laws vary from the federal law, be sure to check the laws that govern business in the state or states in which your company has facilities.

Even before the Fair Labor Standards Act was passed in 1938, there were two laws on the books governing companies that had contracts to construct public works for the federal government. Although they were chiefly designed for the construction industry, the courts have ruled that they apply to any company engaged in work for any federal agency. These laws are the Davis-Bacon Act and the Walsh-Healy Act.

If your company is engaged in a federally contracted public works project, nonexempt employees must be paid at the rate of time and a half for all hours worked over eight in any given day, even if they don’t work a full 40-hour week. Some union contracts also have such a provision.

The Equal Pay Act of 1963 requires that an employee’s gender not be considered in determining salary (equal pay for equal work). As this act is an amendment to the Fair Labor Standards Act, all employers engaged in interstate commerce are covered no matter how many employees they have. The law was passed to eliminate the common practice of paying women less than men who were doing similar work.

For example, a male “porter” on the cleaning crew was paid more than a female “maid.” Often this was justified by claiming the porter had heavier work such as climbing ladders and lifting heavy loads. However, this often represented a minuscule part of his work. Most work was the same as that of his female counterpart.

In the “olden days,” it was assumed that men should be paid more because they supported a family and women worked only if they were single and had to support only themselves. If a married woman worked, it was to earn “pin money,” to supplement her husband’s income. Now, of course, we don’t accept these myths; but the practice of paying less to women persists. According to the latest figures from the U.S. Department of Labor, women in the workplace paid on an hourly basis earn only 73.2 percent of what men earn; women paid on a weekly basis, 76.3 percent; and women paid on an annual basis, 81.8 percent.

You’re worried. You continually read about companies that get into trouble for hiring undocumented aliens (no, not Martians—people from foreign countries). You’re almost afraid to hire anyone who has a foreign accent. Uh, oh! Not hiring someone because of this fear is illegal.

You cannot discriminate against a person because he or she isn’t an American. However, you must ensure that an applicant is legally allowed to work in this country; noncitizens who work in the United States must have proper documentation. There are two types of scenarios most often involved in the hiring of non-United States citizens. I’ll examine both in the following sections.

Many immigrants come into this country—some legally; many more illegally—looking for work. Most of these people seek lower-level positions as farm hands, factory workers, hospital and nursing home attendants, taxi drivers, and similar positions. Your main concern is to ensure that the applicant has the proper documentation.

To ensure that you comply with government regulations …

Most applicants will be able to provide the necessary papers, but some applicants may have misplaced or lost them. Assuming they are legitimate, these documents can be obtained.

If the person you hire cannot show you the required documents, advise him or her to do everything possible to locate them. If they cannot be located, they should be applied for at once. When the application is made, the employee must show proof that an application for the document has been made. This can be in the form of a receipt from the appropriate agency or of certified mail sent to the agency.

These receipts should be photocopied and kept until the documents are received and shown to you. The law requires that the employee present the documents to the employer within 21 days of starting the job, or that person’s employment must be terminated. When the documents are received and examined, notations should be made on the Form I-9 indicating the type of document and identification number (if any). Make photocopies of the documents; the originals should be returned to the employee.

Employers who hire undocumented aliens are subject to fines and, in cases of repeated offenses, imprisonment. If you have any doubts about a document or any questions concerning the law, contact the local office of the Immigration and Naturalization Service.

There are situations in which an employer actively recruits men and women from foreign countries for hard-to-fill jobs. Most of these people are professionals or highly skilled workers. Hospitals need physicians and nurses, which are in short supply in their communities. Technical organizations need engineers and technicians to staff their teams. In this section, you’ll learn what is required to bring these specialists into the United States and onto your payroll.

Here are some situations in which you may put foreign nationals on your payroll:

Once you locate a suitable candidate, you must apply for the H-1 visa. Even if you find a qualified candidate who is already in the United States and has an H-1 visa to work in another company, you will need to apply to the Immigration and Naturalization Service to transfer it. This takes four to eight weeks. The processes and rules governing this visa are very complicated; an attorney or consultant specializing in immigration should be retained.

In 1935—long before the Civil Rights Acts were passed—Congress enacted the Wagner Act, which prohibited employers from discriminating against workers on the basis of union membership or activity. This law is still in effect.

The Wagner and Taft-Hartley Acts cover a variety of matters related to employer-union relations. One section of the law applies to the hiring process. It is illegal to discriminate against a person because he or she is a member of a union. An employer may not even inquire whether an applicant is a union member.

The basic provisions of the National Labor Relations Act (NLRA), usually called the Wagner Act, are as follows:

The Taft-Hartley Act (1947) added these restrictions on unions:

In addition, the National Labor Relations Board, which enforces these laws, has added a variety of interpretations and administrative rulings.

Before the passage of the Taft-Hartley Act many management-union contracts called or a closed shop. The company was required to hire people who were members of the union—often through the union’s hiring halls. This was outlawed by the Taft-Hartley Act. However, contracts may call for a union shop in which nonunion members can be hired, but must join the union within a specified period of time after employment.

When the Taft-Hartley Act was proposed, one of the major areas of contention in Congressional debates was the right of workers to decide whether they want to join a union. Many union contracts included clauses that required all employees working for the company join the union, whether they wanted to or not. This was referred to as a union shop.

Conservative congressmen wanted to completely outlaw such a requirement. A compromise was reached on this point: Instead of the federal government making it illegal for a union to require that all employees of the company be compelled to join the union shop, the decision was left to the states. Several states have passed these laws, called “right to work” laws. In these states, it is illegal to require any employee to join a union as a condition of employment. A company is not allowed to ask applicants if they are members of a union, even if the contract calls for a closed shop. Bring up the subject of union membership only after you’ve made a job offer. If your company has a union or is facing union organization, it’s best to obtain the services of an attorney who specializes in labor relations.

Conflict between work and family obligations has become an inevitable aspect of modern work life, often resulting in absenteeism, work interference, job turnover, and other detrimental impacts. Although conflict between work and family responsibilities cannot be eliminated, family leave and other work/family policies can make it easier for America’s workers to fulfill their responsibilities as parents, family members, and workers.

In 1993 Congress passed the FMLA (Family and Medical Leave Act), which requires companies with 50 or more employees to provide eligible employees with as much as 12 weeks of unpaid leave in any 12-month period. Family and Medical Leave may be taken for any of the following reasons:

To be eligible, the employee must have been employed by the company for at least 12 months and, in the case of a child, must request this leave at least 30 days before the expected birth, adoption, or foster care placement. When this notification isn’t possible, such as in the case of a serious illness of a family member, employees are required to provide as much notice as possible. Both men and women are eligible for leave under this law; however, if both husband and wife work for the same employer, the total amount of leave is limited to 12 weeks for the couple.

The key provisions of the law require the following:

As with most laws, variations apply in special circumstances. For example, Dick’s mother receives outpatient chemotherapy every Tuesday. He brings her to the hospital on Tuesday and stays with her on Wednesday while she regains her strength. Although the law primarily calls for continuing periods of leave, special arrangements can be made so that Dick can take off the time he needs. However, if the type of work Dick does makes this arrangement infeasible, the company has the right to transfer him temporarily to another job—with the same pay and benefits—that enables him to take the days off.

Secretary of Labor Alexis Herman reported in August 1998 that an estimated 20 million people have benefited from the Family and Medical Leave Act. To obtain the details about how this law might affect you or a team member, check with your human resources department, legal department, or local office of the Wage and Hour Division of the U.S. Department of Labor (listed in the U.S. Government pages of most local telephone directories).

In 1970, Congress passed the Occupational Safety and Health Act (OSHA). The act was designed to “assure so far as possible every working man and woman in the nation safe and healthy working conditions and to preserve our human resources.” Enforcement of this law is in the jurisdiction of the Occupational Safety and Health Administration (also referred to as OSHA) of the U.S. Department of Labor. Many states also have enacted similar legislation.

Regulations on health and safety are publicized by OSHA and must be adhered to by all companies engaged in interstate commerce. These are published in the Federal Register. It is the obligation of all companies to study and implement these rules. A more detailed discussion of this and other health and safety issues will be found in Chapter 19, “Keep ’Em Safe and Healthy.”

Managers at all levels must be aware of all of the laws that affect management-worker relations. If you have any doubts, questions, or concerns about how the laws affect your actions, get in touch with your company’s legal counsel to ensure that you don’t violate these laws.