Column: Employment law by the numbers

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The applicability of many employment laws, including some proposed laws, is often tied to the number of employees a particular company has.

Representative Alan Grayson (D. Fla.) is introducing a bill in Congress that would require companies with more than 100 employees to offer a week of paid vacation to all employees.

The Minnesota Legislature also recently considered a bill, called the “Healthy Families, Healthy Workplaces Act,” HF 612, that would have required companies with more than 10 employees to provide paid sick leave for every 30 hours worked by an employee. The act was ultimately defeated in committee, but may be back next year.

In addition, recent amendments to the COBRA laws regarding health insurance remind us that COBRA requirements only apply to employees with 20 or more employees.

The fact that each of these pieces of legislation has a different measure of eligibility points to the fact that employers and their counsel need to keep track of their headcount and consider what laws apply to their company. Smaller employers may be able to use these definitional requirements as a defense to potential liability.

Employment law requirements are imposed according to size in order to not overburden tiny and small employers. A business with a single employee, for example, could be bankrupted by certain financial requirements. A company with 100 or more employees, on the other hand, is presumably better able to diversify its risk and better able to afford the cost of providing additional rights, benefits and protections to its workers.

These days many employers are laying off workers and, as a result, may face potential liability under certain state and federal laws. A smaller portion of enterprises in this economy are adding employees to their payroll, and thus becoming subject to more laws as they grow. Both types of employers — and their counsel — must keep in mind that the size of the workforce may govern what laws apply to the company.

Number of employees and the consequence

1 Time to request an employer I.D. number, obtain workers’ compensation and unemployment insurance and draft a sexual harassment policy. The Minnesota Human Rights Act applies to any size employer. Minn. Stat. sec. 363A.03, subd. 15. So does the Minnesota Whistleblower statute, Minn. Stat. sec. 181.931, subd. 3, the Minnesota Drug Testing Statute, Minn. Stat. sec. 181.950, subd. 7, and many other laws.

10 Must maintain OSHA Forms 300 and 300A regarding workplace injuries. (Proposed Minnesota law would have required paid sick leave for every 30 hours worked by employee.)

15 Title VII of the Civil Rights Act; 42 U.S.C. sec. 2000E; Americans with Disabilities Act. (“ADA”) 42 U.S.C. sec. 12111(5)(A).

20 Consolidated Omnibus Budget Reconciliation Act (“COBRA”); American Recovery and Reinvestment Act of 2009 (“ARRA”) (requires companies with more than 20 employees to provide a subsidy for COBRA premiums of 65 percent for nine months.); Minnesota Bone Marrow Donation Leave and Organ Donation Leave statutes, Minn. Stat. sec. 181.945, subd. (c) and Minn. Stat. sec. 181.9455, subd. 1 (c); Minnesota Personnel Record Statute, Minn. Stat. sec. 191.960, subd. 3.

21 Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. sec. 630(b); Minnesota parenting leave, Minn. Stat. sec. 181.940.

50 Family Medical Leave Act (“FMLA”) 29 U.S.C. sec. 2611(4)(A)(i).

100 Worker Adjustment and Retraining Notification (“WARN”) Act, 29 U.S.C. sec. 2101(a); employers with at least 100 employees also have an EEO-1 filing requirement. Also time to consider a full-time Human Resources professional for each 100 employees.

This is not a comprehensive list and employers should refer to counsel for specific advice.