WORKFORCE REGULATIONS, LAWS, RULES – UNITED STATES OF AMERICA

US LEGAL SYSTEM (BASICS) • Worlds legal system is divided into 3 Basic Group:• Civil Law (Written Codes (Laws, Rules & Regulations) – EU.• Common Law (Evolved – Differs from civil Law – Evolves

through Judicial decisions) - US laws. Example – Employment-at-will principle.

• Religious Law – e.g. Sharia.• Levels of Law• International • Extraterritorial Law – USA Title VII, American with Disability

Act, Foreign Corrupt practices act. (Foreign Compulsion Exception – Treaty or Sovereign Immunity ‘FSIA – Foreign Sovereign Immunity Act’ - US)

• Regional / National: Federal & State Courts – Diversity in Duty of care from different state laws.

EXTRATERRITORIAL APPROACH• Extraterritorial approach (US)• Apply to

• Operations within USA• US citizen – US company inside or

outside US.(Exceptions – treaty / Sovereign Immunity)

• Some times to – non US citizen working for US companies – outside US.

• To decide firms • Place of Incorporation, Principle place of

business, Contacts within US, Nationality of owner/ dominent share holder, Citizenship and location of management.

• Integrated enterprise• Foreign Compulsion Exception –

Companies non-compliance to US law because of local law in country.• Treaty Rights – FNC – Friendship,

Commerce & Navigation treaties.• Sovereign Immunity – Foreign Sovereign

Immunity Act.

EXTRATERRITORIAL APPROACH

• Non Labor related Extraterritorial US Law:• International Emergency Economic Powers Act (IEEPA) –

Block International transactions and freeze foreign assets. E.g. Bangladesh, Obama suspended trade benefits – two workplace disasters.

• Foreign Corrupt Practices Act (FCPA) – Bribery to foreign govt. by US national, non-us subs & third party agents.

• Sarbanes Oxley Act (SOX) – Board & senior members to provide complete and accurate financial reports – applies to all companies listed in US.

• Prosecutorial Remedies and Other Tools of End the Exploitation of Children Today (PROTECT) Act – Against Child abuse.

HIRING• “At-Will” Employment Doctrine – Employer (not unlawful

reason) and employee can terminate employment any time. Not interpreted uniformly in all states.

• Employment Contract - As per mandated law, only for high level executives and key employees.

• Antidiscrimination Law 1. Title VII of the Civil Rights Act of 1964 (“TitleVII”) 1964 - Title

VII prohibits employment discrimination on the basis of race, color, religion, sex, national origin, pregnancy, childbirth, or related medical conditions. Provides Equal opportunity.

2. Age Discrimination in Employment Act of 1967 (“ADEA”) Employers with 20 or more employees are prohibited from discriminating against employees or applicants on the basis of their age if the person is aged 40 or over.

3. Americans with Disabilities Act (“ADA”) – Prohibits discrimination against a qualified individual with a disability.

HIRING• Civil Rights Act of 1991- Provides a federal remedy to

employees or applicants alleging racial discrimination and/or harassment in employment.

• Background and Reference Checks; Drug Testing • Federal Fair Credit Reporting Act (“FCRA”) applies when an

employer obtains a background check from a “consumer reporting agency” regarding an applicant when the background information sought by the employer is either a “consumer report” or an “investigative consumer report.” Some states within the United States have background check or credit history check restrictions that mirror, and in some cases provide greater protection than, federal law.

• Drug Testing - The Drug-Free Workplace Act of 1988

HIRING

• Immigration• Visa Waiver• Foreign national travelers coming to the United States under the Visa

Waiver Program must first register on the Electronic System for Travel Authorization (“ESTA”).

• Business Travel• B-1 Business Visitor Visa - Foreign nationals coming to the United

States on short-term business trips may use the B-1 business visitor visa. An accompanying spouse and unmarried, minor children can be admitted under the B-2 tourist visa.

• Training• J-1 Exchange Visitor Visa - used for a number of different purposes,

including on-the-job training.• H-3 Trainee Visa - foreign nationals coming for training that is not

available in the trainee’s own country and that will benefit the trainee’s career abroad.

HIRING

• Immigration• B-1 Visa in lieu of H-3 - Foreign nationals may be admitted to

participate in H-3 type training programs using the B-1 visa, provided that they have been customarily employed by and will continue to receive a salary from the foreign company.

• Employment Assignments• L-1 Intra company Transfer Visa - Multinational companies seeking to

temporarily transfer foreign employees for assignment to U.S. operations most often rely on the L-1.

• H-1B Specialty Occupation Visa - job offered must be in a specialty occupation.

• H-1B1 Free Trade Agreement Visa - Prospective employers of foreign professionals who are citizens of Singapore and Chile may take advantage of additional quota allocations

• E-3 Free Trade Agreement Visa - Prospective employers of foreign professionals who are citizens of Australia can take advantage of similar Free Trade Agreement benefits

HIRING

• Immigration• TN - NAFTA - North American Free Trade Agreement Visa : Employers

of foreign professionals who are citizens of Canada and Mexico can take advantage of somewhat different Free Trade Agreement benefits using the TN visa.

• E-1 and E-2 Treaty Trader and Investor Visas – E1 – for traders & E2 – Investors.

• Others• F-1 visa are often granted authorization for employment

related to their studies before and after graduation.• O-1 visa authorizes the employment of foreign nationals of

extraordinary ability.• Foreign nationals with skills in short supply in the United

States may be able to obtain the H-2B visa.

WAGES, BENEFITS & SALARY

•Wages & Hours• Fair Labor Standards Act• 1938 - The FLSA introduced a maximum 44-

hour seven-day workweek, established a national minimum wage, guaranteed "time-and-a-half" for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor", a term that is defined in the statute.• The FLSA applies to all employees except

those specifically exempt by the law itself.

WAGES, BENEFITS & SALARY

• Discrimination & Harassment; affirmative Action• Genetic Information Nondiscrimination Act of 2008

(“GINA”), prohibits genetic information discrimination in employment.

• Title VII, the ADEA, and the ADA• Vacation & Leaves of Absence• No state or federal law in the United States directs

employers to grant employees paid vacation. (often about 2 weeks per year)

• If vacation is granted - “use it or lose it”

WAGES, BENEFITS & SALARY• Statutory Leaves of Absence - The Federal Family Medical

Leave Act : To be eligible for an FMLA leave, the employee must have • been employed for at least 12 months; • worked at least 1,250 hours during the 12 months

immediately preceding the start of the leave, and • worked at a worksite where 50 or more employees are

employed by the employer within 75 miles.• 12 weeks of unpaid FMLA – 12 months (Maternity,

Paternity and child care)• Military Leave - Uniformed Services Employment and

Reemployment Rights Act (“USERRA”)• Disability Leave(ADA), Workers’ Compensation Leave

WAGES, BENEFITS & SALARY• Employee Benefits• Patient Protection and Affordable Care Act (Obama Care)- consists

of a combination of measures to control healthcare costs, and an expansion of coverage through public and private insurance: broader Medicaid eligibility and Medicare coverage, and subsidized, regulated private insurance.

• Pension Plan • Employer Provided: Employee Retirement Income Security Act 1974

(Tax Exemption) & Internal Revenue Code of 1986, as amended (“IRC”).• Two types : Defined benefit plan (less prevalent) and Defined

contribution plan • 401(k) plans (defined contribution plan) are generally given a menu of

investment choices and they, rather than a professional investment advisor or the trustee, make the decisions regarding the investment of their account balance under these plans. Single cash lump sum on retirement or termination of employment.

• Consolidated Omnibus Budget Reconciliation Act, 1985 (COBRA)

WAGES, BENEFITS & SALARY• Workplace Safety and Workers’ Compensation:• The Occupational Safety and Health Act of 1970 - every working man

and woman in the Nation safe and healthful working conditions.• Employees in all states, the District of Columbia, Puerto Rico, the Virgin

Islands and many other U.S. possessions are covered by the Act. However, OSHA does not apply to federal and state public employees.

• 23 states and two territories have adopted “mini-OSHA” laws that must be at least as effective as the federal law.

• Covers Regulations and standards, Inspections and penalty for violations.

• Workers’ Compensation - Workers’ compensation is mandatory for nearly every employer in every state. Employers must be qualified self-insurers, or carry workers’ compensation insurance, or contribute and participate in a state workers’ compensation fund.

TALENT & OD

• Employee Monitoring and Data Protection:• Categorized in either “Industrial Property” or “Copyright”

• Industrial Property – Patents, Trademarks and Industrial design• Copyright – artwork, literature, software etc.

• Work made for hire – created by employee within scope of work (covered as per Copy right protection and gives employer termination rights.)

• USA Copyright Act 1976 – Defines the rights & privileges of the author or proprietor to exclude other form printing or otherwise duplicating, distributing, or vending copies of his/her literary, artistic and other creative expressions.

• Deemed Export rule: Linked to release of technology or source code to foreign nationals.

• Wassenaar Agreement – The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. (41 countries)

TALENT & OD

• Employee Monitoring and Data Protection:• Export Means – Being turned over to a foreign national. All

foreign nationals are subject to Deemed Export rule except following• Granted permanent residents (Green Card)• Granted US citizenship

• Monitoring and data protection act:• Federal Constitutional Law• The Electronic Communications Privacy Act• USA Copyright Act 1976• Fair Credit Reporting Act• Health Insurance Portability and Accountability Act (HIPPA) -

Health Information Technology for Economic and Clinical Health Act (“HITECH”) established important amendments to HIPAA.

WORKFORCE RELATIONS

• Unions and Labor Laws Relevant to Non-Union Workplaces• National Labor Relations Act (NLRA – 1935) -

federal law that establishes the right of workers to engage in collective activity, including to form, join, and assist unions. (Protected concerted activity)

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