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“Election Season ”

アメリカ 弁護士 法律事務所 法律 選挙シーズンThere is no denying it, the campaign season is in full swing. But with the 2008 election still a year away, it is going to be a long campaign. Nevertheless, you really have only one thing to worry about - voting. Voting is one of the most important civic duties, yet recent voter turnout rates hover around 51%. Voting isn’t always as simple as waking up on Election Day and filling out a form - to ensure that your voice is heard, you must carefully follow registration and voting requirements.

In order to be eligible to vote, you must be 1) 18 years or older on Election Day, 2) a citizen, naturally born or naturalized, and 3) registered. Registering usually requires that you either register in person or mail in your registration. In most states, you can register at your local Department of Motor Vehicles. You should check with your Secretary of State to determine exactly where to register in your state. In addition, downloadable registration forms are likely available from your Secretary of State’s website. You simply fill out the forms and mail them in. Rock The Vote (www.rockthevote.com) and Declare Yourself
(www.declareyourself.com) also provides a registration form that works in most states.

In some states, such as Minnesota, you can register at your polling place on Election Day so long as you can verify your residence. In others, you must already be on the roll of eligible voters in order to vote on Election Day. This means you must register before Election Day. Deadlines for registration vary, but are usually 15-30 days before the election. The moral of the story is―to be sure you can vote in 2008, don’t wait, register early.

Federal elections are held on the Tuesday after the first Monday in November. Although this may seem like a random date, it actually has ties to our agrarian, rural, religious beginnings. This date ensured that voting wouldn’t interfere with farming or religious obligations and would allow ample travel time.

Today, the importance of Election Day is recognized in some states by its status as a holiday. For example, Delaware and Indiana recognize an Election Day holiday. If you live in a state where Election Day is a holiday, check with your employer to ensure you can have the day off. If instead you live in a state that doesn’t recognize the holiday, you should still talk to your employer about policies that may permit you to take time off for voting. Some employers grant their employees a late start or early departure on Election Day.

On Election Day, you should bring your voter registration card, a government issued ID, and proof of residency. Proof of residency is often simply an official document that lists your address, such as a check or lease. Although states vary as to the exact identification requirements, bringing all three ensures that you won’t hit any snags. Your polling place should be identified on your registration card. Usually it’s a school or community center within walking distance of your home. If you have lost your registration card or have yet to receive it, you can find your polling place by searching your Secretary of State’s website.

The right to vote is a constitutionally protected right. If you believe you are properly registered and eligible to vote, but on Election Day are denied the ability to do so, you should ask to file a “provisional ballot.” This will allow you to vote normally on Election Day. Afterwards, your ballot will go through a review process to confirm your eligibility.

Remember voting is your right. If you have any questions about voting procedures in your state, your eligibility, or if you feel your rights have been violated, work with your attorney to answer your questions and identify the proper course of action.

(Fall 2007)

"Intending Citizens"

Intending CitizensIntending citizens are non-naturalized immigrants who are actively pursuing naturalization and have been:

  • lawfully admitted to the U.S. for permanent residence (green-card holders);
  • granted temporary residence in the U.S. under IRCA’s legalization program;
  • granted asylum in the US under the Immigration and Nationality Act; or
  • admitted to the U.S. as a refugee under the Immigration and Nationality Act.

(Summer 2007)

"Hiring Immigrants"

Intending CitizensWhen hiring a new employee, businesses must be careful not only to select the right person for the job, but to make sure that they do so legally. When considering an applicant who is an immigrant, employers must be careful to guard against illegally hiring individuals not authorized to work in the United States while avoiding discriminating against U.S. citizens based upon ethnicity.

The federal Immigration Reform Control Act (IRCA) requires employers to complete Form I-9, an eligibility form, for every new employee. The I-9 serves as proof that the employer has verified the legal eligibility of the applicant to be employed in the U.S. Employers must retain these forms for three years after hiring, or one year after employment is terminated, whichever comes last. IRCA applies to all private-sector businesses with three or more employees. Covered businesses can prove they have verified employment eligibility on the I-9 through checking one or more of several documents:

  • Social Security card plus driver’s license with photograph;
  • U.S. passport;
  • unexpired foreign passport with temporary I-551 stamp;
  • alien registration receipt card;
  • permanent resident card (green card); or
  • U.S. birth certificate plus driver’s license with photograph.

When hiring ANY new employee, it is paramount that your business verifies the individual’s eligibility to work by examining one of the documents listed above. Checking a potential employee’s driver’s license is not enough.

While IRCA prohibits the employment of individuals not authorized to work in the U.S., it also prohibits employers from discriminating against U.S. citizens or “intending citizens” on the basis of national origin or citizenship status.

The antidiscrimination provisions of IRCA protect U.S. citizens and those immigrants authorized to work in the U.S. who are taking active steps to become citizens, from discriminatory or simply overly cautious employers.

It is important for employers and employees alike to understand that all employees, whether legally authorized to work or not, are protected by federal and state workplace law. For example, if an employer fires an illegally hired unauthorized worker because that person has joined a union, the employer has violated the law. Though the employee’s recourse is limited, the employer remains liable and subject to sanction in the event of a violation. The Department of Justice Office of the Special Counsel for Immigration-Related Unfair Employment Practices offers more information on its website, www.justice.gov/crt/osc.

(Summer 2007)

"Leave for Military Service"

United States military personnel are deployed in nearly 130 countries around the world. Servicemen and -women perform a variety of duties around the globe, from combat operations to peacekeeping to training with foreign militaries. Many Americans serving in the military have had to take leave from civilian jobs; thanks to federal law, however, those jobs are protected.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides valuable rights for all employees who perform military service. The uniformed services include the full-time and reserve components of the Army, Navy, Marine Corps, Air Force, Coast Guard, and National Guard and the commissioned corps of the Public Health Service. USERRA applies to voluntary as well as involuntary service, in peacetime and in wartime. The law applies to virtually all civilian employers, including the federal government, state and local governments, and private employers, regardless of size.

The act prohibits employment discrimination because of an employee’s or applicant’s past, current, or future military obligations. It requires employers to grant an unpaid leave of absence of up to five years to any employee serving in the uniformed services. It entitles employees to reinstatement to their former positions, with the same rights and benefits they had on the date they began uniformed service. This includes seniority-based rights and benefits they would have attained had they remained continuously employed, such as status, rate of pay, pension vesting, and credit for pension benefits. While in uniformed service, employees are to be treated as if on leave of absence and are entitled to any non-seniority-based benefits that are available generally to employees on leave of absence. For example, USERRA gives an employee the right to continue health insurance coverage during periods of military service. The employee may be required to pay for the health insurance.

In order to be reinstated to a civilian job following a period of service in the uniformed services, a military member must


  • Have informed the employer that he or she was leaving the job for service in the uniformed services
  • Not have served more than five years
  • Have been released from service under “honorable conditions”
  • Have reported back to the civilian employer in a timely manner or have submitted a timely application for reemployment.

USERRA also provides certain employees with special protection against firing.
It provides that a person who is reemployed cannot be fired except for cause within one year after reemployment, as long as the employee’s period of military service was more than 180 days. An employee whose period of military service was more than thirty but less than 181 days may not be fired except for cause within 180 days after reemployment.

The Office of Veterans’ Employment and Training Service (VETS) of the Department of Labor has the responsibility for investigating complaints under USERRA.
Individuals may also file lawsuits in federal court to enforce their rights. If you think your rights under USERRA have been abridged, talk to your lawyer to find out what steps you need to take.

(Winter 2006)

"Criteria That Can Get the Employer in Trouble"

アメリカ 弁護士 法律事務所 法律 問題のある採用基準Examples of job criteria that have been found to discriminate against certain groups include:

  • height and weight standards (which may adversely impact women and members of certain ethnic groups);
  • fluency in the English language (which may adversely impact members of certain national-origin groups);
  • standards relating to arrest and conviction records (which may adversely impact members of certain racial and ethnic groups); and
  • standards relating to history of garnishment (which may adversely impact members of certain racial and ethnic groups).

Remember, an employer can still make use of such criteria if it can show that the qualifications measured are necessary for successful performance of the job.

(Fall 2006)

"A How-to Guide to Hiring"

A How-to Guide to HiriHiring a new employee to work in a small business is process
fraught with legal issues. The federal government and most
states have anti-discrimination laws in place protecting
applicants and employees from hiring and employment
decisions based on race, color, religion, national origin, sex,
pregnancy, age, disability, union affiliation, or veteran status.
(Some states also prohibit discrimination based on other
categories, including sexual orientation, marital status, and
arrest record.) Would-be employers must comply with the law at every step of the hiring process.

Advertising the Position

In order to attract the most qualified applicants or employees, ads and job descriptions should
avoid words that suggest the employer prefers applicants of a particular race, sex, religion,
national origin, age, or other protected trait under the relevant state or local law. For example,
an ad that employs the phrase “recent college graduate” instead of “college degree required”
could imply a preference for young people and discourage older applicants from applying.
Likewise, using the term “salesman” instead of “salesperson” could suggest that only men
should apply.

Employers should also use care when deciding how to disseminate information about available
jobs. The method an employer uses to get out the word about job openings can create problems
if that method has the effect of foreclosing certain classes of applicants. Employers can avoid
problems by disseminating news of job openings as widely as possible. Placing ads in newspapers
and magazines with wide circulation bases and using employment agencies or state job-service
divisions can help employers reach a wide variety of qualified applicants.

Interviewing Applicants

The Americans with Disabilities Act prohibits an employer from asking any questions relating to
the applicant’s physical or mental health. Questions that seek such information either directly
(such as “Do you have any health problems?”) or indirectly (such as “Have you ever filed a claim
for workers’ compensation?”) are forbidden. Rather, employers should ask all applicants if they
can perform the essential functions of the job. For example, if the job requires sitting down for
eight hours a day, the application should ask whether the applicant is physically able to meet that
requirement.

The National Labor Relations Act prohibits any questions about union membership or activities.
For example, questions such as “Do you belong to a labor organization?” or “Have you ever
participated in a strike?” are against the law.
Employers should take careful notes during interviews. Besides being helpful in defending hiring
decisions if they’re challenged in the future, keeping accurate, job-related interview notes
improves the quality of the selection process. However, employers only write notes that pertain
to an applicant’s ability to perform the functions of a job.

Reference Checks

Both federal and state laws regulate the ability of employers to request references and other
information. Reference checks that unnecessarily request private information or use
unreasonable methods to gather data may subject an employer to liability for invasion of privacy,
though such liability is admittedly rare. As a rule, when conducting reference checks, employers
should inquire only about issues relating to an individual’s past work performance.

(Fall 2006)

"The Law on Summer Jobs"

The Law on Summer JobsMillions of young people spend their summer vacations working in restaurants, stores, offices, and elsewhere. Many young people continue to work through the school year, often doing freelance jobs such as babysitting or gardening. However, most young people (and their parents) don’t realize that federal laws limit the hours that people under 18 can work, and the types of work that young people can do. Many employers are also in the dark about what the law has to say about employing young people. This article gives a brief outline of child labor law. If you employ young people on a regular basis, you should consult your lawyer to ensure that you are complying with the law.

The federal Fair Labor Standards Act (FLSA), which dates back to the New Deal, limits when and under what conditions employers can hire individuals under the age of 18. The law is designed to protect the educational opportunities of young people and to ensure that young people are not employed under conditions that could be detrimental to their health and well-being. The FLSA applies to all employers whose annual gross volume of sales or business is more than $500,000 and to employers engaged in interstate commerce. Even if an employer is not covered by the FLSA, it may be covered by state laws regulating child labor. Breaches of the federal law can be costly: employers are subject to a penalty of up to $11,000 per worker for each violation of the FLSA child labor provisions.

To comply with the FLSA, employers must set minimum-age requirements for certain jobs. As a general rule, employers cannot employ children under the age of 14. There are three exceptions to this rule. Children under 14 can:

  • work for a parent who is the sole proprietor of a business;
  • work as actors; and
  • work as news carriers.

Minors who are 14 or 15 years old can work in some retail and service industry jobs but are prohibited from working in certain hazardous occupations. Some jobs that are generally considered hazardous for 14- and 15-year-olds are:


  • transportation jobs,

  • construction jobs,

  • mining jobs,

  • jobs that require operation of power-driven machinery (including lawn mowers and trimmers),

  • jobs that require maintenance or repair of equipment, and
  • jobs in or around boiler rooms.

The law also limits the number of hours that young people aged 14 and 15 can work. They cannot work any hours during which they are expected to be attending school. They may work a maximum of three hours on a school day, up to 18 hours per week. On nonschool days, 14- and 15-year-olds can work for a maximum of eight hours a day. During school vacations, they can work up to eight hours per day, and up to 40 hours per week. Children under the age of sixteen cannot work before 7:00 a.m. or after 7:00 p.m. (9:00 p.m. in the summer).

The FLSA does not restrict the number of hours 16- or 17-year-old minors can work, but it does state that they cannot be employed in certain types of hazardous jobs. Jobs considered hazardous for 16- and 17-year-olds include:


  • logging jobs;

  • jobs operating elevators;
  • jobs that require the employee to operate power-driven meat-processing, bakery, or paper-product machinery;

  • jobs that require driving a motor vehicle on public roads;

  • jobs performing wrecking and demolition work;

  • roofing jobs; and

  • excavation work.

Finally, the FLSA provides that employees under 20 years of age may be paid a sub-minimum wage of $4.25 an hour during their first 90 consecutive calendar days (not work days) of employment. After the first 90 days, however, employers must pay the regular minimum wage (the federal minimum wage is $5.15). The law prohibits employers from discharging or reducing the hours of employees who are paid the regular minimum wage in order to hire youths at the sub-minimum rate.

Some states have stricter legal limitations on child labor than those found in the FLSA. For example, some states have a more extensive list of hazardous jobs and activities, and also limit the number of work hours for all minors under 18―not just for those under 16. Some states also require that employers obtain age certificates to verify the age of employed minors, or require minors to get work permits from school authorities. Your lawyer can give you more detailed information about the child labor law requirements and regulations in your state. If both state and federal laws apply, the law setting the higher standards must be observed.

If you employ young people under 18, you can take several simple steps to ensure that you do not unintentionally violate child labor laws. Ask employees for legally acceptable proof of age at the time of hiring, and keep copies on file. You may wish to provide a worksheet for youth to sign when they are hired, to test and verify their understanding of what equipment is off limits to them, and the hours that they can work. Be aware that you may need to exercise caution if you permit shift-swapping among employees, to ensure that the FLSA work hour requirements are not breached. And finally, ensure that all managers understand the need for compliance with youth employment laws.

(Summer 2006)

"Facts about Youth Employment"

Facts about Youth Employment

  • The National Institute for Occupational Safety estimates that more than 210,000 American children suffer injuries at work every year.

  • According to the Department of Labor, more than 30 percent of 16- and 17- year olds were employed in 2005.

(Summer 2006)

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