Forgotten, but not gone: laws affecting the workplace.

For years, several major pieces of workplace legislation have taken the spotlight and drawn most of the attention of employers, employees, and the legal community.

So vast is the publicity surrounding the New Jersey Law Against Discrimination, the Americans with Disabilities Act, the Family and Medical Leave Act and the New Jersey Family Leave Law that one could think that these were the only laws having anything to do with employee fights and employer responsibilities.

But in a very real sense, they are just the tip of the iceberg when it comes to workplace laws and rules. Too often, while keeping an eye on the "big issues," employers and employees, and even their legal advisors, overlook many other laws that affect the workplace that create significant rights and obligations. These must be considered in weaving the fabric of good employee relations. What follows are a few of the more significant laws and regulations that are mostly forgotten, but certainly not gone.

The National Labor Relations Act and Non-Union Employees

Most people are familiar with the National Labor Relations Act ("NLRA") and its protection of employee rights to join, form and assist labor organizations. But what many people don't know or often forget is that non-union employees have substantive rights under the NLRA, even when there is no union in the picture.

Many commonly held employment practices of non-union employers can constitute unfair labor practices under the NLRA. For example, a simple nosolicitation rule that prohibits employees from soliciting one another, can violate the act. Moreover, a little-known Board rule provides that the common employer practice of prohibiting employees from discussing their pay rates can be an unfair labor practice. Disciplining or discharging an employee for violating such a rule can result in charges against an employer.

Similarly, most employers take for granted that they can terminate an employee for being disruptive. But what about an employee who conducts him or herself this way in a group meeting while complaining about wages, benefits or other working conditions? An employer that discharges or disciplines that employee does so at its peril, as doing so may violate the NLRA. The Board, with approval of the federal courts, considers such conduct to be "protected concerted activity" under the NLRA. Any employer who disciplines or fires an employee for such conduct in a group setting while discussing matters relating to himself/herself and others, commits an unfair labor practice. Board remedies of reinstatement and full back pay are often imposed in such cases.

Lie Detectors and Truth Testing Lie detectors, voice stress analyzers and physical or psychological tests are said to be able to detect if someone is lying. It sounds like a good idea: An employer suspects an employee of doing something wrong, or wants to verify that it will only employ truthful people, so management wishes to use one of these devices. Both federal and state laws, however, make such use in the workplace illegal in most instances. The Federal Employee Polygraph Protection Act and the New Jersey equivalent make it unlawful to require or cause an employee to submit to almost any kind of truth testing, whether lie detectors, voice stress analyzers or psychological testing. Even the mere request that an employee submit to such a test violates these laws. With the many new emerging devices that claim to be able to tell if someone is telling the truth, employers need to be careful not to embrace the use of such new technology because doing so can violate either or both of these laws.

Employment Eligibility Forms under the Immigration Reform and Control Act

The Immigration Reform and Control Act ("IRCA") has been around since 1986. One of the many requirements that was put in place under the law was the requirement that employers complete an employment eligibility verification form for each new hire, regardless of whether or not the employee is a United States citizen.

The form, known as the I-9, requires employees to provide proof of eligibility to work in the U.S. Too often, employers simply ignore this requirement or just photocopy relevant documents and staple them to a form and throw them in a file. What most employers don't realize is that failing to complete the form fully with the required information can lead to a fine of between $100 and $1000perform that is not completed properly.

Access to and Storage of Medical Records

In New Jersey, most employers take for granted that they are not required to allow employees access to their personnel files. But regulations promulgated under the Occupational Safety and Health Act ("OSHA") establish that employees and their designated representatives have the right to examine and copy their own medical records that are in the possession of their employer. Employers must maintain these records for the duration of an employee's employment, plus 30 additional years, an unusual record-keeping requirement of which most companies are wholly unaware. Violations of these rules are generally viewed as serious violations by the Occupational Safety and Health Administration and can lead to penalties up to $75,000.00.

Commissions as Wages

Many companies make the mistake of viewing commissions as a discretionary bonus and believe that related formulas can be changed, even retroactively, if an employee is considered by the employer to be earning too much. Further, some companies will withhold payment for extended periods and not account for them. However, all of this can run afoul of the New Jersey Wage and Hour Law.

Conclusion Obviously, employers must maintain a "big picture" view of all of the well-known anti-discrimination laws because, of course, such laws deal with important issues like sexual harassment in the workplace. It is nonetheless critical that employers keep an eye on the lesser-known and often forgotten laws, which can give rise to substantial liability on the part of employers. The examples above are but a few of the many laws, rules and regulations, forgotten but not gone, that lie in wait for the unwary.

* Steven R. Weinstein and David J. Sprong are members, and Daniel L. Pascoe is an associate of the law firm necker Meisel LLC, Livingston, N.J. The), practice labor and employment law and commercial litigation.