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We are thrilled to continue updating our series on federal laws that are applicable to the issues of workplace harassment, discrimination, & retaliation in New York. In that spirit, this blog is Part IV of the series, but a continuation of our discussion on the coverage of the federal laws on both employees and employers. Accordingly, this blog focuses on the coverage of the laws discussed in Part II of the series, including the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301–4335, Section 1981, 42 U.S.C. § 1981, the Immigration Reform and Control Act, 8 U.S.C. § 1324b(a)(1)(B), (a)(3), the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 18116, the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–2654, and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1140.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

As provided for under 38 U.S.C. § 4303(4), all public and private employers, irrespective of the size, are covered by USERRA. With regards to those employees working in the U.S., USERRA requires compliance from foreign employers who operate a physical location within the country. Further, with respect to all foreign operations, U.S. companies that operate either by controlling an overseas entity or directly overseas is required to comply with USERRA, unless doing so would violate the law under which the particular site is governed.

Section 1981

All employees, working for both public and private employers, are covered by Section 1981, irrespective of the size of the employer. The federal law permits all employees to bring a Section 1981 claim, although it prohibits discrimination in contracts. Further, courts in some circuits have also explicitly held that independent contractors (gig workers) are also covered by Section 1981.

Immigration Reform and Control Act (IRCA)

As provided for under 8 U.S.C. § 1324b(a)(2)(A), all employers with four or more employees are covered by IRCA’s antidiscrimination provisions. However, the federal law is not applicable to (1) an entity’s or individual’s discrimination since a person’s national origin provided that the discrimination with regards to that entity of individual and they are covered by Section 703 of the Civil Rights Act of 1964.

Patient Protection and Affordable Care Act (ACA)

As provided for under 29 C.F.R. § 1984.102(a), employers are prohibited from retaliating against employers in line with ACA’s whistleblower provisions. These whistleblower provisions were expanded in 2014 to include prohibitions against retaliation by health issuers that provide individual or group health coverage, irrespective of the whether the individual who allegedly experienced retaliation was employed by the issuer. However, in line with 42 U.S.C. § 18011(a)(3)–(4), grandfathered plans are not currently covered under the ACA’s whistleblower provisions.

Family and Medical Leave Act (FMLA)

As provided for under 29 U.S.C. § 2611(4)(i) & 29 C.F.R. § 825.104(a), private employers with 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar year are covered by the FMLA. Under the federal law, an “employer” includes (1) any individual acting, directly or indirectly, in the employer’s interest to any of such an employer’s employees, (2) all public agencies, irrespective of the count of employees, including state, local, or federal governments, and (3) any successor in the employer’s interest.

Employee Retirement Income Security Act (ERISA)

This federal law covers most employers in the private sector, including, but not limited to not-for-profit organizations, sole proprietorships, limited liability companies, partnerships, and corporations. Covered employers must understand that as provided for under 29 U.S.C. § 1140, it was not the intention of the Congress to limit, with regards to the use of the term “person,” those who could violate statute to employers. Accordingly, 29 U.S.C. § 1140 holds liable any “person” who interferes with the rights of employees under any qualified benefits plan, irrespective of whether “person” is a fiduciary, a corporation, or an individual.

Stay tuned for Part V of this series and strive to be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.