Workers generally fall into two categories: employees or independent contractors.

Employment contracts generally are governed by state law, not federal law.

Employment contracts generally are governed by state law, not federal law.

Part-time employees generally are afforded the same rights as full-time employees.  Part-time employees may not satisfy eligibility requirements for certain benefits depending on the number of hours they work. Please see responses to Questions Nos. 14 and 18.

There is no prohibition on assignment of employment contracts under federal law, but employment contracts generally are governed by state law, not federal law.

Federal law does not provide employees with any rights in connection with the transfer of the company they work for as a going concern.  However, if the transfer of the company entails a plant closing or a mass layoff, the Worker Adjustment and Retraining Notification (WARN) Act (29 U.S.C. §§ 2101 – 2109) entitles affected employees to receive at least 60 days’ advance notice.  The statute defines a plant closing as “the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more” full-time employees.  It defines a mass layoff as a reduction in force at a single site of employment that results in an employment loss, during any 30-day period, of (a) 33% or more of the workforce and 50 or more full-time employees or (b) more than 500 full-time employees.

Please see response to Question No. 6.

There is no prohibition on changing the terms of employment under federal law, but this issue generally is governed by state law, not federal law.

Federal law does not alter the at-will nature of employment, but this issue generally is governed by state law, not federal law.

Unless an employee’s termination violates a federal statute (please see responses to Questions Nos. 11 and 13), this issue generally is governed by state law, not federal law.

Yes.  The following federal statutes provide protections for whistleblowers, including prohibiting employers from retaliating against employees who report violations or suspected violations of the statutes: the Fair Labor Standards Act (FLSA); the Sarbanes-Oxley Act, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act (SOX); the Occupational Safety and Health Act (OSHA); the National Labor Relations Act (NLRA); Title VII of the Civil Rights Act of 1964 (Title VII); the Equal Pay Act (EPA); the Age Discrimination in Employment Act (ADEA); the Americans with Disabilities Act (ADA); the Genetic Information Nondiscrimination Act (GINA); the Uniformed Services Employment and Reemployment Rights Act (USERRA); the Immigration Reform and Control Act (IRCA); and the Family and Medical Leave Act (FMLA). 

The Defend Trade Secrets Act (DTSA) (18 U.S.C. § 1836 ) protects whistleblowers from criminal or civil liability for disclosures of trade secrets that are made in confidence to a government official or to an attorney and are made for the purpose of reporting a violation of law.

For additional information regarding prohibitions against retaliating against employees for engaging in protected activity and/or asserting their rights or the rights of others under various laws, please see response to Question No. 13.

The Genetic Information Nondiscrimination Act (GINA) (42 U.S.C. §§ 2000ff – 2000ff-11) prohibits the use of genetic information in making employment decisions, such as hiring, firing, advancement, compensation, and other terms, conditions, and privileges of employment.  GINA also prohibits employers from requesting, requiring, or purchasing genetic information about applicants or employees, except in very narrow circumstances.  For example, it is illegal for an employer to require an applicant or employee to answer questions about family medical history during an employment-related medical exam, such as a pre-employment exam or a fitness for duty exam during employment.  Employers must keep genetic information about applicants and employees confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files.  Applicants or employees who succeed in demonstrating violations of GINA can recover back pay, front pay, compensatory and punitive damages, and attorneys’ fees.

The Americans with Disabilities Act (ADA) requires employers to keep confidential the medical information of applicants and employees.  42 U.S.C. § 12112(d)(3)(B); 42 U.S.C. § 12112(d)(4)(C).

The Health Insurance Portability and Accountability Act (HIPAA) prohibits employers from using in their employment decisions any health information that they receive through the administration of health care plans.

Yes.  The following federal statutes prohibit discrimination in employment.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e – 2000e-17) prohibits discrimination based on race, color, national origin, religion, and sex (including gender and pregnancy), as well as retaliation for engaging in protected activity under the statute.  It applies to employers with at least 15 employees.  A claim under Title VII must be brought in the first instance before the Equal Employment Opportunity Commission (EEOC) or a similar state or local fair employment practices agency.  A charge must be filed with the EEOC within 180 days of the alleged violation, but that period is extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.

The Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101 – 12213) prohibits discrimination against qualified individuals with a disability and individuals who are regarded as having a disability, as well as retaliation for engaging in protected activity under the statute, and it requires employers to reasonably accommodate qualified individuals with a disability unless it causes an undue hardship.  It applies to employers with at least 15 employees.  A claim must be brought in the first instance before the EEOC or a similar state or local fair employment practices agency.  A charge must be filed with the EEOC within 180 days of the alleged violation, but that period is extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.

The Age Discrimination in Employment Act (ADEA) (29 U.S.C. §§ 621 – 634) prohibits discrimination against employees and applicants age 40 or older, as well as retaliation for engaging in protected activity under the statute.  It applies to employers with at least 20 employees.  A claim must be brought in the first instance before the EEOC or a similar state or local fair employment practices agency.  A charge must be filed with the EEOC within 180 days of the alleged violation, but that period is extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law.

The Genetic Information Nondiscrimination Act (GINA) (42 U.S.C. §§ 2000ff – 2000ff-11) prohibits discrimination against applicants and employees based on genetic information, including family medical history and family members’ genetic tests, as well as retaliation for engaging in protected activity under the statute.  It applies to employers with at least 15 employees.  A claim must be brought in the first instance before the EEOC or a similar state or local fair employment practices agency.  A charge must be filed with the EEOC within 180 days of the alleged violation, but that period is extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of the acquisition or use of genetic information.

The Equal Pay Act (EPA) (29 U.S.C. § 206(d)) prohibits wage discrimination based on sex.  It applies to employers that have both: (a) employees engaged in commerce or the production or goods for commerce, or handling, selling, or working on goods that have been moved in or produced for commerce; and (b) annual gross sales or volume of business of at least $500,000.  An individual alleging a violation of the EPA may go directly to court.  A claim alleging a violation of the EPA must be brought within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years.

The Immigration Reform and Control Act (IRCA) (8 U.S.C. § 1324b(a)) prohibits discrimination based on national origin and citizenship.  With respect to national origin discrimination, it applies to employers with between four and 14 employees (employers with 15 or more employees are covered by Title VII).  With respect to citizenship discrimination, it applies to employers with at least four employees.  A claim alleging a violation of the IRCA must be filed with the Immigrant and Employee Rights Section, part of the U.S. Department of Justice’s Civil Rights Division, within 180 days of the alleged violation.

Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 U.S.C. §§ 4301 – 4335) prohibits discrimination in employment based on military service or military status.  It applies to employers regardless of the number of employees.  USERRA does not have a statute of limitations, but at least one court has held that the four-year general federal statute of limitations, 28 U.S.C. § 1658, applies to actions under USERRA.  Rogers v. City of San Antonio, 2003 WL 1566502 (W.D. Texas), reversed on other grounds, 392 F.3d 758 (5th Cir. 2004); but see Akhdary v. City of Chattanooga, 2002 WL 32060140 (E.D. Tenn.).  In addition, if an individual unreasonably delays asserting his or her rights, and that unreasonable delay causes prejudice to the employer, courts have recognized the availability of the equitable doctrine of laches to bar a claim under USERRA.  20 C.F.R. § 1002.311.

Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981) prohibits discrimination based on race in connection with contracts, which courts have interpreted to apply to employment relationships.  It applies to employers regardless of the number of employees.  An individual alleging a violation of Section 1981 may go directly to court.  An employee may file a Section 1981 within four years of the violation.

The Family and Medical Leave Act (FMLA) (29 U.S.C. §§ 2601 – 2654) covers employers with at least 50 employees.  It covers employees who have worked for a covered employer for (a) at least 12 months (not necessarily consecutive) and (b) at least 1,250 hours during the 12 months before the first day of requested leave.  The FMLA does not apply to employees if they work at a facility with fewer than 50 employees and the employer has fewer than 50 employees within 75 miles of the worksite.

The FMLA requires covered employers to provide covered employees with up to 12 weeks of unpaid protected leave during a 12-month period for a qualifying reason.  Qualifying reasons for FMLA leave include: birth and care of an employee’s newborn child; placement of an employee’s adopted or foster child with the employee; care of an employee’s immediate family member (spouse, child, or parent) with a serious health condition; the employee’s serious health condition that prevents the employee from performing the functions of the job; providing care for a family member who is a covered servicemember with a serious injury or illness; and certain qualifying exigencies arising because a military member is on covered active duty, is on call to covered active duty status, or has been notified of an impending call or order to covered active duty status.

The Americans with Disabilities Act may require employers with at least 15 employees to provide leave as a reasonable accommodation to an employee with a disability if the leave would enable the employee to return to work and perform the essential functions of the job.

There have not been any changes to leave benefits under federal law in the past 12 months.

There have been various proposals of federal legislation that would provide for paid leave, but none appear likely to become enacted imminently.

In addition to the federal laws discussed above, state and local laws may govern these issues.

There is no federal law prohibiting restrictive covenants, but this issue generally is governed by state law, not federal law.

There is no federal law prohibiting employers from terminating the employment of employees who refuse to sign a restrictive covenant, but this issue generally is governed by state law, not federal law.

Employers and employees are required to contribute to Social Security and Medicare.  As of 2019, for Social Security the employer and employee each pay a tax of 6.2% (12.4% total) on an employee’s wages up to $132,900.  As of 2019, for Medicare the employer and employee each pay a tax of 1.45% (2.9% total) on all wages, plus the employer must withhold an additional tax of 0.9% of an individual’s wages in excess of $200,000.

The Affordable Care Act (ACA) requires all employers with 50 or more full-time equivalent employees to provide health insurance to at least 95% of their full-time employees and dependents up to age 26, or pay a fee.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage in certain instances where coverage under the plan would otherwise end (such as voluntary or involuntary job loss, reduction in hours worked, transition between jobs, death, divorce, and other life events).

For information regarding family and medical leave, please see response to Question No. 14.

In addition to the federal laws discussed above, state and local laws may govern these issues.

The Age Discrimination in Employment Act (ADEA) generally prohibits mandatory retirement ages, unless (a) there is a bona fide occupational qualification or (b) the employee is age 65, is a bona fide executive or in a high policymaking position, and is entitled to an immediate nonforfeitable annual retirement benefit of at least $44,000.

The Employee Retirement Income Security Act (ERISA) permits a defined benefit plan to suspend the payment of retirement benefits if a retiree continues to work beyond normal retirement age or is rehired after a bona fide retirement, unless the retiree works fewer than 40 hours per month.  29 C.F.R. § 2530.203-3.