hr2015
TRANSCRIPT
Legislative NewsSexual Orientation Protected by SCOTUS/EEOCDiscrimination: The Protected Classes **
‘Spouse’ redefined for FMLA
FMLA Notice Decisions – Email, Snail Mail?Family Medical Leave Act
State Parental Leave Movement
Ban the Box signed for ‘State of GA’ applicants
3
Background Checks
Employment Law Hot SpotsLily Ledbetter Fair Pay Act 2009◦ Changes the time frame for filing Equal Pay
discrimination suits (180 days)
Disability Discrimination◦ Verizon settlement is one of the largest
discrimination settlements to date - $20 millionDisability Discrimination and Accommodation for Managers
ADA https://www.pryor.com/trainingrewards/Training/OnDemand/46138
National Labor Relations Board (NLRB)◦ Protected concerted activity and social mediaThe Impact of Social Media Within Your Organization
3
Employment Law Hot Spots
Misclassification of Workers◦ Contractors◦ White Collar Exemptions
FLSA Rules, Regulations and Classification Standards
QETP – Questionable Employment Tax Practices
DOL “Hot Goods” Provision
3
Who is An Employer?
FLSA defines and ‘employer’ as “any person acting directly or indirectly in the interest of an employer in
relation to an employee.” 29 USC §203 (d).
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Penalties can be assessed against the employer or a
‘person acting on behalf of an employer.’
2011-2013 – the courts re-defined ‘employer ‘ in
all employment law issues. States also followed.
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Audit-SecureYour Business!
What will the Auditors
find swimming in
YOUR waters?
Have you caught your fish?
1. Reasonable Basis File◦ Professional Resources
◦ Government Resources
◦ Desk References/Software/Templates
◦ Training Resources
◦ Consultant/Attorney advice in writing
2. Standard Operating Procedures◦ Step by step guidance for each position
◦ Follow a Rule of 3 + and reference your Reasonable Basis
◦ Must contain update and revision dates
◦ Include employee training dates
3. Employee Handbook – Policies/Procedures◦ Must reflect federal and state laws
◦ Must include specific company policies when law is silent
◦ Must include documentation of review and updates annually
4. Job Descriptions◦ Not optional
◦ Must detail Essential Functions and BFOQs
◦ Must detail Exempt qualifiers - especially duties
◦ Must be accompanied by interview checklists for EEOC compliance
◦ Review annually – minimum – document
5. Internal Audit Documentation *KEY*◦ Annual audit documentation for each area
◦ Must include corrective action plan and outcome
Rule of 3s!
Audit-Secure Checklist
Executive Order 11246 (1964) - Affirmative Action
Applies to companies with federal government contracts over $10,000 annually
Must abide by equal opportunity, refraining from discrimination of minorities, women, handicapped persons, and Vietnam era and special disabled veterans
4
Civil Rights Act 1964Original Protected Groups
Cannot discriminate on the basis of:
Race
Color Discrimination: The Protected Classes
Sex
Religion
National origin
5
Civil Rights Act of 1991Money for damages
Defines employer “good faith” defense
Further defines discrimination
Extend anti-discrimination to US citizens working abroad for US-owned companies
Prohibits test score norming. Employers cannot inflate or vary test scores of protected group members to bring them in line with nonprotected group members.
5
Protected Groups Added
Also cannot discriminate on the basis of:
Handicap (later broadened to “disability)
Age
Pregnancy
Veterans
Genetic Information
5
Equal Pay Act
Designed to bring salaries of both men and women to equal
levels for those employed:
In the same establishment,
For work requiring substantially equal skill,
For work requiring equal effort,
For work requiring equal responsibility, and
For work performed under similar working conditions.
6
Fair Labor Standards Act
Responsible for TOP audits and investigations in the USA
Employers must be clear on who is exempt from OT
White collar exempt tests are changing soon
State and federal wage and hour laws may differ
Covers child labor laws, too
Fair Labor Standards Act Parts 1 and 2
7
The TruthRegularly, 75% of employers make payroll errors! – SHRM
Approximately 1 million workers each week suffer a
payroll error = $56,000,000 per week x 52 =
$2.9 Billion/year.
- The Payroll Answer Book
Most Errors Come from FLSA Violations
Estimated 80% of employers are getting it wrong.
- Department of Labor
Science and Learning Exemption
Must have 4 year degree – Usually
Must always need the degree for the job
---------------------------
Court in California held:
A receptionist cannot be exempt just because a degree is held in business communications or a person is highly experienced in public relations.
Age Discrimination in Employment Act
Designed to bring salaries of both men and women to equal
levels for those employed:
In the same establishment, Age Discrimination in Employment Act
For work requiring substantially equal skill,
For work requiring equal effort,
For work requiring equal responsibility, and
For work performed under similar working conditions.
8
Americans with DisabilitiesADA Amendment Act of 2008◦ Establishes ‘rules of construction’ for determining
whether an employee is substantially limited in performing a major life activity
◦ Makes it easier for an employee to establish coverage under the ‘regarded as’ part of the definition of disability
◦ An individual must be covered under ‘actual disability’ or ‘record of disability’ to qualify for reasonable accommodation
9
Disability Discrimination and Accommodation for Managers
Americans with Disabilities
Current drug and alcohol users are not protected
Alcoholics covered unless under influence in the workplace
Cannot require a medical test pre-offer
Can require a drug test pre-offer
9
Family and Medical Leave Act FMLA is unpaid, job protected leave (12 weeks)
Applies to companies with more than 50 employees, public
agencies and schools
Employers can require employees to use accrued paid
leave first – Paid leave and FMLA run concurrent
Military Caregiver Leave (26 weeks)
Qualifying Exigency – Call to Active Duty Leave (15 days)
10
Military FMLA
Trainer Bonus Giftswith any order placed during this seminar
SOP Development GuideWith samples of W-4 SOP and others
Affordable Care Act UpdatesTwo documents – Total 17 pages of updates/checklists
FMLA5 Part FMLA Webinar Series
Front Loading PTO Policy
Safe Recruitment Strategies
List job openings with outplacement firms, minority recruiting
sources, and social media
Do not rely solely on social media for recruitment – it may
constitute disparate impact
Review recruitment materials for disparate impact and
discriminatory advertising
Monitor advertising and recruitment results for disparate impact
12
Exercise:Replacing an Aging Workforce
Reasons to hold on to older workers
Challenges older workers face and your solutions
Ways to approach the conversation of retirement
13
Be a TOP Place to Work!1. Flex time2. Home commute3. Job sharing4. Compressed work week
Create a Culture of Accountability/RecognitionBudget for training and development
Tuition assistance programsProvide ‘low to no’ cost incentives
Definition: Who are WE?
13
Audit Applications and Job Descriptions
Use one standard application
Eliminate references to protected classes
Provide more than one means of completing/submitting
(See Sample in Appendix 11)
Job Descriptions
1. Determine job-related criteria.
2. Examine bona fide occupational qualifications and essential job functions. Screen them for adverse impact.
3. List job experience and knowledge in order of requirement.
4. Identify core functions of the job and list in order to weight and importance.
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Interviewing QuestionsBehavior-based – examine past behavior and predict future performance
Open-ended – encourage the applicant to talk and provide an assessment of verbal skills
Close-ended – give the interviewer complete control
Probing – used to gather additional information
Hypothetical – evaluate knowledge and core performance abilities
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Make the Hiring DecisionAt-will – Really?
Contractual wording: ‘Permanent Employee’
Non-competes limit the employee’s ability to find work.--------------------------------------------------------------
Match the job criteria to the candidate’s tangible and intangible qualities.
Use a checklist and a comparison grid.
Meet with all involved in the selection.
Consider the fit
Document decision
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Background ChecksBackground Checks
1. When is it necessary?
2. Observe privacy issues and Consumer Credit Reporting Reform Act.
3. Use an outside vendor.
4. Identify job-related criteria to search for.
5. Share only that the best suited/most qualified candidate has been chosen – and no other information
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Manage Contract LaborAppoint a Decision Maker
Use ABC Test - Checklist
Require proof of business entity
Identify job parameters in a contract
Require a W-9
If using a “sourced” contractor, directly deal with the outsourcing agency, not the contractor for employment issues
Do not require a non-compete
Consider charging usage fees for office, support, etc. if working at your job site for an extended period
Secure OSHA Training
19-20
Manage Contract Labor9. Do not require independent contractors to attend company meetings.
10. Do not require independent contractors to work only for your organization.
11. Structure independent contractor agreements with a specific beginning and end date. Do not use automatically renewing agreements.
12. Terminate independent contractors only as outlined in the contract agreement. Do not discipline.
20
Reverse Discrimination
Hiring someone who is less qualified than another JUST because of a protected class.
Example:
Hiring a 42 year old woman when a 35 year old white man is clearly more qualified.
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True Story!Reverse Discrimination or Not?
You Make the Call!
A Latino dentist hires a white woman over a Latina woman. The white woman is less qualified. They are the same age.
Why might this happen?
Is this discrimination and / or something else?
Issues in Health InsuranceHIPAA Changes 22 HIPAA Videos◦ Updates to requirements
Domestic partner qualification/benefits eligibility:◦ Create a policy defining coverage
◦ Provide health insurance to partner and dependents as defined by the policy
◦ Use the consistency rule
◦ Err on the side of being lenient
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COBRA1. What are the responsibilities if a former employee is late with COBRA payments?
a. Send a letter notifying the employee of intent to terminate coverage at thirty days late.
2. How are COBRA benefits handled when an employee divorces?
a. Benefits are to be extended to spouse of covered employee and can continue under the plan for a maximum of 36 months.
3. What about military leave?
a. If active for more than 30 days, the employee and dependents will be covered by military health care.
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Accidents Not Covered by Worker’s Compensation
Injuries arising as a result of: Introduction to Accident Investigation
1. Intoxication by alcohol or drug use
2. A felonious act committed by the employee
3. An aggressive altercation by the injured employee
4. Self-inflicted harm or suicide
5. Careless or imprudent behavior
6. Personal travel
Appendix – 7,8,9
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IRS Section 125 Cafeteria Plan Qualified Benefits
◦ Employer provided accident and health
◦ Group term life insurance
◦ Short and long term disability
◦ Dependent care FSA
◦ 401(k) contributions
◦ Health FSAs
◦ AD&D policies
◦ Contributions to HSAs
◦ COBRA premiums
◦ Adoption assistance programs
◦ Individual accident and health policies
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Flextime and Off-Site ConsiderationsFlextime employees
Set up a defined work schedule
Closely monitor workflow and productivity
Require attendance at department/company meetings
Off-Site Employees
Review and monitor the cost to set up the off-site office
Schedule regular office hours and availability
Require periodic on-site meetings
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Flextime and Off-Site Considerations
Benefits of Off-site workers◦ Promotes environment of trust and respect.
◦ Increases productivity
Challenges◦ Decreases personal interaction. Employee can inadvertently
be left out of the communication loop
◦ When working with hourly employees, workflow can extend to more than 40 hours - difficult to monitor.
28
Organizational Development and Training
Create a program that allows advancement based on training and performance
Clearly define organizational ethics and integrity values – in writing
Provide multiple training formats and opportunities
Evaluate training and development payoff to the organization
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Organizational Development and Training
Do Outsource:◦ Interviewing ◦ Background and reference checking
Don’t Outsource:◦ Succession planning - this is at the heart of organizational
development and should be a part of the management planning process.
◦ Documentation and preparation for court - you are on the hook for employment decisions and must document first-hand. Likewise as your HR, managers, or supervisors are closest to any issue that would go to court, those closest need to do the advance preparation and will most likely be the ones called on to testify.
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ArbitrationTo successfully use arbitration and avid having the courts allow an employee suit, structure arbitration agreements that allow the employee to vindicate his/her statutory rights and provide for the following:
1. Neutrality of arbitrators
2. Adequate discovery
3. A written decision that provides for limited judicial review
4. A limitation on costs, requiring that the employee pay no more than the cost would have been to litigate the claim.
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Personality StylesWorkers must be spoken to in a way they understand.
Each worker will have a unique experience and must not be handled in a cookie cutter way.
Adapting for DISC Styles – multi-part series
My Role in Life
I am the ___________________ in my peer group.
◦ Mother◦ Father◦ Child◦ Organizer◦ Student◦ Teacher◦ Nurse/Doctor◦ Patient◦ Counselor……………..
Difficult Personality TypesDr. Rick Brinkman and
Dr. Rick Kirschner
Know It AllThinks They Know It AllTankPassiveGrenadeSniperWhinerYes PersonNo Person
Dr. Tony Alessandria's Platinum RuleWhen Dealing with Difficult Personalities:
Treat other as THEY would like to be treated.
Be Adaptable
Master the Art of Pacing
Find Common Ground
And MOST of All……………
Handle Depression in the Workplace
Take Action:
Tie behaviors to performance
Meet with employee to identify source
Refer to outside assistance if needed
Provide ongoing points of contact and support internally
Set small goals; encourage and evaluate
D.A.N.C.E.
Where we can use this system:Work
School
Spouse/partner
Kids – especially teens
Social circle
When dealing with the public
Or in Any other type of conflict
Implement Diversity Training The Latest Thinking on Company-Wide Diversity Training
What to avoid:
• Training focused to a defined group
• Assimilation training
• Training exercises with a “how does it feel” context
• Training in an emotionally charged situation
Valuing Diversity for Managers – 8 videos
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Covered Employers
Occupational Safety and Health Act
of 1970 (OSHA)
29 CFR 1975.4(a)
General.
Any employer employing one or more employees would be an "employer engaged in a business affecting commerce who has employees" and, therefore, he is covered by the Act as such.
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General Duty Clause
5. Duties
(a) Each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.
39-41
Results of Abusive or Violent Behavior◦ Decreased morale
◦ Increase in number of violent incidents
◦ Increased stress
◦ Increase in employee turnover
◦ Injury
◦ Decreased productivity
◦ Legal action
Establishments Affected by Workplace Violence
According to the Bureau of Labor Statistics, the
highest number of homicides occur in night retail
establishments.
The highest number of nonfatal assaults occur in
the health care and social service sectors.
What Is Workplace Violence?
Any physical assault, threatening behavior, or verbal abuse
occurring in the workplace.
The workplace may be any location either permanent or temporary
where an employee performs any work-related duty.
Acts of AggressionWhich May Indicate Risk
Disorderly conduct, such as shouting, pushing or throwing objects, punching walls, or slamming doors;
Verbal threats to inflict bodily harm including vague or overt threats;
Fascination with guns or other weapons, demonstrated by discussions or bringing weapons to workplace;
Acts of Aggression Which May Indicate Risks (Continued)
Obscene phone calls;
Intimidating presence; and
Harassment of any nature.
Types of Workplace Violence Incidents
Based upon the relationship between the assailant/worker/workplace, violent incidents can be divided into categories:
◦ Violence by strangers
◦ Violence by customers/clients/patients
◦ Violence by co-workers
◦ Violence by personal relationship
The Affordable Care Act – ObamaCare – says we must begin interviewing patients for
Domestic Violence to meet Meaningful Use.
Domestic Violence and the Workplace
1 in 3 women will be abused by an intimate partner.
1 in 4 of these women will tell someone.
2-5% of men will be abused by their female partner.
Race has no bearing on the statistics.
74% of working women in abusive relationships will be confronted at work on some level.
DV causes Americans to miss 175,000 workdays each year.
DV costs employers $5.8 billion annually
A woman is battered every 9 seconds in America
Domestic Violence and the Workplace
How to recognize signs of abuse:◦ Coming in late or very early
◦ Crying
◦ Excuses
◦ Strange calls or visits
◦ Incessant calls or texts
◦ Odd ways of thinking – child-like
◦ Defensiveness
◦ Easy to startle
◦ Court dates
◦ Extreme concern regarding ◦ errands for partner
Reduce Company Liability◦ Screen employees
◦ Enforce a zero tolerance policy
◦ Provide a confidential reporting process
◦ Train and educate
◦ Review and assess workplace safety regularly
◦ Limit workplace accessibility
◦ Supervise termination sessions
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Reduce Company LiabilityRecognize the triggers:
◦ Performance counseling◦ Discipline◦ Being passed over for promotion◦ Criticism or harassment from co-workers◦ Failed romance (particularly with co-worker)◦ Personal crisis◦ Termination◦ Domestic crisis and violence that comes to the
worksite
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Overcome Substance Abuse in the WorkplaceTesting Guidelines
Test randomly
Test for cause
If testing pre-offer, test every applicant or candidate
Keep results confidential
Consistently follow the discipline/termination process for a positive test
Only use a reputable lab for testing - false positive tests can come back to bite you; the lab must be able to provide chain of evidence and results ties to the employee tested.
Do not test in the application stage.
Substance abuse in the workplace
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Harassment in the Workplace1. Hostile Work Environment2. Quid Pro Quo – This for That
Understanding the 5 Levels ◦ Remarks◦ Touching◦ Solicitation◦ Textbook harassment – This for That◦ Assault
Understanding Harassment - Levels of Sexual Harassment
43-44
Workplace BullyingRepeated, intentional, and malicious abuse of an individual
Abusive use of words or deeds to discredit, discourage, harm the spirit, dignity, reputation, or integrity of an individual
Lack of manners and social graces
Psychological or physical violence
Animosity and a lack of respect for individual value
Attempt to control or intimidate an individual
Workplace Bullying – 8 videos
Employee Privacy RightsBest practices:
Publish and follow company policy
Consistently follow precedent
Act conservatively
Keep best interests of the company – and the employee – in mind
Before you act, take time to research
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Employee Self-EvaluationThe benefits:
LBs and NTs
Employee takes ownership of performance
Speeds up the appraisal process
Employee usually more critical and develops improvement plan
Creates a team approach to goals, results, and employee development
360 Degree Feedback – Good or Bad??
48-49
Progressive and Constructive Discipline
Written plan, actions
consistent
A
Written plan, actions
inconsistent
F
No written plan, actions
consistent
C
No written plan, actions
inconsistent
D
How the courts view your management grade:
50
Elements of a Performance Improvement Plan (PIP)
Identify the performance gap
Define the expectations for improvement
Document specific steps to take to improve performance
Prescribe training / development plan
Provide a detailed timeframe for improvement
Detail results and remedies for both failing to improve and achieving improvement
Sign and date by both the employee and manager
50-51
Objective DocumentationNo adjectives
No drawn conclusions
No speculation or inferences
Examples include:◦ “I saw…”
◦ “Caroline stumbled and could not answer questions…”
◦ Conner and Michael raised their voices and Michael punched Conner in the jaw…”
Document immediately while information is fresh
Document Disciplinary Actions
3/10/2015
8. Retain a record to file for a specified period of time depending on the infraction• If a part of the performance improvement plan is to purge the record of a minor
infraction given improved performance, follow through and do so.
9. Note both good and bad performance results in the file. A file that only contains good documentation can create an inaccurate picture when disciplining or terminating an employee for performance problems. • Performance appraisals should always contain suggestions for improvement as
well as kudos on good performance. • Unlawful discharge suits are difficult to defend if the documentation appears to
support the employee claim of unlawful discharge.
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Lawful Termination Guidelines◦ Follow policy and procedure consistently
◦ Inform employee every step of the disciplinary process
◦ Meet in private, but require a witness
◦ Do not apologize
◦ Provide documentation to the employee
◦ Outline specifics of the termination, including benefit information
◦ Terminate at the beginning of the week if possible
◦ Answer questions
◦ Respect the employee’s dignity
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The Danger of Building a File or Paper Trail
Lampley v. Onyx Acceptance Corp., 7th Circuit Court of Appeals, No. 02-3201, (2003)
What to destroy:
Documents dated beyond record keeping requirement period
Inaccurate or false information
Biased accounts using excessive adjectives - subjective documentation.
Unnecessary documents and information.
Third and fourth party accounts. These are not reliable and considered to be
highly subjective.
HR 0204 # 107 of 50
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Edit Handbooks for Implied Contract Language
◦ Temporary employee
◦ Permanent employee
◦ Probationary period
◦ Only terminated for cause
◦ Promising adherence to disciplinary process,
regardless of circumstances
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Electronic Distribution of Employee Handbooks
Include verification of receipt process when distributing handbooks on-line
When making and distributing handbook changes, include a memo outlining changes and requiring return receipt of changes
Provide alternative means of distribution for those employees who do not have on-line access
Meet ADA requirements
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Documentation That Can Be Subpoenaed
◦ Manager notes
◦ Applications
◦ Performance appraisals
◦ Disciplinary records and performance improvement plans
◦ Promotion records
◦ Test results
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Act Responsibly
◦ Be fair to and treat all employees equally
◦ Treat employees with dignity and respect
◦ Communicate expectations and share information freely
◦ Recognize when you need help and ask for it quickly
◦ Take disciplinary action when required
◦ Keep solid documentation