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(c) 2011 All Rights Reserved by Lauren Brenner, HCR  Group  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR  Group  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR  Group  The information contained herein is general and is not offered...
Test Your Knowledge<br />I-9 information legally needs to be retained<br />In a separate file<br />In the employee’s perso...
Test Your Knowledge<br />An applicant, employee or former employee may file a harassment or discrimination complaint with ...
Test Your Knowledge<br />OSHA (Occupational Safety & Health Act) recordkeeping requirements apply to employers with<br />1...
Test Your Knowledge<br />When an employee involuntarily separates from your company, whose responsibility is it to educate...
Test Your Knowledge<br />When was your Employee Handbook last updated with the recent legal compliance changes (e.g., MA H...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR  Group  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR  Group  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
 Providing “comp” time vs overtime pay
 Not paying for “all” hours worked
  Misclassification of exempt/non-exempt  </li></ul>     employees<br /><ul><li>  Independent Contractor vs Employee Statu...
Under Massachusetts (revised) wage and hour laws, there is a presumption that any individual providing services is an empl...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
Is it due upon termination?
If not, when (Note: In NH, exempt employee must be paid for full pay period, not just the date of termination)
 Vacation Pay
 Commissions
P.S. (Don’t forget to send DUA Notice and COBRA/Mini-COBRA Notice)</li></li></ul><li>(c) 2011 All Rights Reserved by Laure...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group.  The information contained herein is general and is not offered...
Hiring
Promotions
Wage increases
Disciplinary Action</li></ul>or<br /><ul><li>Not reasonably accommodating someone in a protected category
Religious Holidays
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Top 5 HR Legal Hot Spots for Businesses

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Transcript of "Top 5 HR Legal Hot Spots for Businesses"

  1. 1. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter. <br />TOP 5 LEGAL <br />HR HOT SPOTS <br />FOR BUSINESSES <br />What Every Organization <br />Needs To Know<br />
  2. 2. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter. <br />Presented By:<br />Lauren Brenner<br />President/HR Division<br />150 Wells Avenue<br />Newton, MA 02459<br />617-614-1271<br />Lbrenner@telamonins.com<br />
  3. 3. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Agenda<br />Top 5 Reasons why Employers are Being Sued<br />Current “hot spots” in Massachusetts Against Discrimination (MCAD) Claims<br />HR Safeguards to Assist Organizations<br />Practices and Policies All Organizations Must Have<br />
  4. 4. Test Your Knowledge<br />I-9 information legally needs to be retained<br />In a separate file<br />In the employee’s personnel files<br />Either of the above.<br />(a) In a separate file that is not attached to the employee’s personnel file (NOTE: Many employers keep all I-9 Forms together, filed alphabetically, in a separate folder).<br />
  5. 5. Test Your Knowledge<br />An applicant, employee or former employee may file a harassment or discrimination complaint with MCAD (Massachusetts Commission Against Discrimination) or the EEOC (Equal Employment Opportunity Commission) within<br />30 days of the most recent offense<br />180 days of the most recent offense<br />300 days of the most recent offense<br />There is no statute of limitations to file a complaint<br />(c) 300 days of the most recent offense; it is strongly suggested that you retain applicant and employee records for a minimum of one year (NOTE: other legal requirements state longer periods of time for the retention of employee or former employee files).<br />
  6. 6. Test Your Knowledge<br />OSHA (Occupational Safety & Health Act) recordkeeping requirements apply to employers with<br />1 employee<br />11 employees<br /> 25 employees<br />More than 50 employees<br />(b) 11 employees (the law does not stipulate that the employees be only full-time).<br />
  7. 7. Test Your Knowledge<br />When an employee involuntarily separates from your company, whose responsibility is it to educate the terminated employee about unemployment benefits<br />The employee<br />The company <br />The company, but only to those employees who are involuntarily separated from your company<br />(b) The company needs to send the Division of Unemployment Assistance pamphlet to all terminated employees (regardless of whether the separation was voluntary or involuntary).<br />
  8. 8. Test Your Knowledge<br />When was your Employee Handbook last updated with the recent legal compliance changes (e.g., MA Health Insurance Reform Act, ADA, Data Security Breach Law)<br />This past year<br />Within the last 5 years<br /> Unsure<br />With all the federal and state legal compliance changes over the past 1-5 years, companies need to ensure that they do not find themselves legally exposed to fines and penalties for non-compliance or notification to employees.<br />
  9. 9. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Top 5 Reasons Employers Are Being Sued<br />1) Unlawful Pre-Employment Process and Questions <br />2) Wage & Hour Infractions<br />3) Rash Disciplinary Decisions/Termination Errors<br />4) Breach of Confidentiality <br />5) Discriminatory Practices/Actions<br />
  10. 10. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#1 Unlawful Pre-Employment Process and Questions<br />Asking questions to discover protected category information<br />Requesting criminal history information on employment applications<br />Asking non-job-related questions<br />Copying a driver’s license prior to employment offer<br />Requiring completion of background check form prior to employment offer<br />Requiring certain skill testing & /or questions of some applicants and not others<br />
  11. 11. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter. <br />Pre-Employment Process and Questions Remedies<br />
  12. 12. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#2 Wage & Hour Infractions<br /><ul><li> Illegal reduction in overtime pay
  13. 13. Providing “comp” time vs overtime pay
  14. 14. Not paying for “all” hours worked
  15. 15. Misclassification of exempt/non-exempt </li></ul> employees<br /><ul><li> Independent Contractor vs Employee Status</li></li></ul><li>#2 Wage & Hour “To Do” List<br />(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br /><ul><li> Review criteria for overtime pay – ensure legal</li></ul> compliance including paying employees for <br /> “all” hours worked<br /><ul><li> Who determined what positions were </li></ul> exempt vs. non-exempt? Do you have job <br /> descriptions<br /><ul><li> Review Independent Contractor vs Employee </li></ul> Status<br />
  16. 16. Under Massachusetts (revised) wage and hour laws, there is a presumption that any individual providing services is an employee, unless the individual meets the following three (3)-part test:<br />The individual has been and will continue to be free from control <br /> and direction in connection with the performance of such service<br /> under the contract;<br />Such service is performed outside the usual course of business for which the service is performed; and<br /> Such individual is customarily engaged in an independently <br /> established occupation, professional or business of the same <br /> nature as that involved in the service performed.<br />(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />
  17. 17. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Wage & Hour “To Do” List (cont’d)<br />Payment of Wages Upon Termination<br /><ul><li> Final Pay – depends on state requirements
  18. 18. Is it due upon termination?
  19. 19. If not, when (Note: In NH, exempt employee must be paid for full pay period, not just the date of termination)
  20. 20. Vacation Pay
  21. 21. Commissions
  22. 22. P.S. (Don’t forget to send DUA Notice and COBRA/Mini-COBRA Notice)</li></li></ul><li>(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#3 Breach of Confidentiality<br />Employee’s Work Performance<br />Terminations<br />HIPAA (Health Insurance Portability and Accountability Act)<br />REMEDY – “Need To Know” basis<br />
  23. 23. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#4 Rash Disciplinary Decisions/Termination Errors<br />Acting out of emotion vs. reason<br />Setting an example with one employee when others have not received the same discipline<br />Not allowing the employee to state their side of the incident<br />
  24. 24. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#4 Rash Disciplinary Decisions/Termination Safeguards<br />Be consistent – actions taken with one employee should be taken with other employees in similar situations<br />Ensure you are 100% sure of your facts<br />Document<br />
  25. 25. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />#5 Discriminatory Practices/Actions<br /><ul><li>Treating someone in a protected category differently than someone else
  26. 26. Hiring
  27. 27. Promotions
  28. 28. Wage increases
  29. 29. Disciplinary Action</li></ul>or<br /><ul><li>Not reasonably accommodating someone in a protected category
  30. 30. Religious Holidays
  31. 31. Time off</li></li></ul><li>#5 Discriminatory Practices/Actions Reminders<br />Be consistent <br />Review the situation, not the employee<br />Document<br />(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />
  32. 32. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Protected Categories Include<br />FederalMA<br />Race Race <br />Color Color <br />Sex Sex <br />Age Age <br />Religion Religion <br />National Origin National Origin <br /> Genetic Identity Genetic Identity <br /> ADA Disability <br /> Veteran’s Status Sexual Orientation <br />
  33. 33. (c) 2011 Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Reality Check<br /><ul><li>93,277 EEOC claims filed in 2010 </li></ul>Resulting in $376 million in monetary awards<br />Note: Increase of 7.1 % from 2009<br />Retaliation – 35, 890 claims<br />Increase in Religion, Age & Disability-based claims<br /><ul><li>3,323 MCAD cases filed in 2009 </li></ul>81.0% of claims were employment related<br />
  34. 34. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Current “hot spots” in Massachusetts Against Discrimination (MCAD) Claims<br />MCAD 2009 Top 6 Categories of Complaints by Protected Class<br />Cases Filed: 3,323 ↓<br />Disability – 20.5 % (1,140) ↑ Other Complaints:<br />*Sex – 13.0% (721) ↓ Sexual Harassment – 6.2 ↑<br />Race – 20.1 % (1,116) ↑ Sexual Orientation – 2.0<br />Retaliation – 11.5% (766) ↑ Creed – 1.7 ↓<br />Age – 10.7% (593) ↑ Retaliation – 13.8 ↑<br />National Origin – 8.1% (451) ↓<br />*Complaints with a basis for Sex – 77% (Women) <br />
  35. 35. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Did you know…<br />The average monetary award median for employment practice liability cases, which includes discrimination and wrongful termination claims was $250,000.<br />An ounce of prevention is worth its weight in gold!<br />
  36. 36. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />HR Safeguards to Assist Organizations<br />Update Employment Application<br />Employee Handbook<br />Anti-Harassment Policy & Employee Training<br />Job Descriptions (include safety, education and skill requisites)<br />Management Legal Compliance Training<br />Management Training<br />
  37. 37. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter. <br />Policies and Practices All Organizations Must Have<br />Employment at Will<br />Attendance/Tardiness<br />Computer Usage/Electronic Workplace<br />Confidentiality<br />Safety Guidelines<br />Misuse of Substances<br />Dress Code/Personal Hygiene<br />Telephone/Cell Phone<br />Salary Deductions<br />MA Health Insurance No Retaliation<br />Personal Data Security/WISP (Written Information Security Program<br />
  38. 38. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />PERSONAL CONDUCT POLICY<br />Does your policy include:<br />Sleeping on the job<br />Theft and unauthorized removal of company or employee items<br />Fraud<br />Misappropriation of funds<br />NOTE: Only have policies that will be adhered to<br />
  39. 39. Summation<br />(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />
  40. 40. Any Questions?<br />(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />
  41. 41. (c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.<br />Thank You<br />
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