Legal Issues In Human Resources
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Legal Issues In Human Resources

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Presentation regarding the various legal aspects concerning Human Resources

Presentation regarding the various legal aspects concerning Human Resources

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Legal Issues In Human Resources Presentation Transcript

  • 1. Legal Issues in Human Resources
    Heather Clark Reynolds, JD
  • 2. Required Posters
    Federal and State Laws
    Pre-employment and hiring process
    Employment
    Post-employment
    Overview
  • 3. Required Posters
    Indiana Minimum Wage Poster
    Indiana Workforce Development Act
    Indiana Equal Opportunity
    Workers Compensation Notice
    Indiana OSHA
    Indiana Child Labor Law
    Federal Fair Labor Standards Act
    Workers with Disabilities
    Migrant and Seasonal Agricultural Workers
    Minimum wage
    Family and Medical Leave Act
    Federal Equal Opportunity – new poster as of 11/1/09 (GINA)
    Employee Polygraph Act
    http://www.in.gov/dwd/2428.htm - provides free copies
  • 4. Age Discrimination & Employment Act
    Pregnancy Discrimination Act
    Family & Medical Leave Act of 1993
    Americans With Disabilities Act
    Rehabilitation Act of 1973
    Executive Orders 11246 and 11701
    Fair Labor Standards Act (Minimum wage, Child Labor & Overtime)
    Davis-Bacon Act
    Walsh-Healy Act
    Portal-To-Portal Act (When travel time is compensable)
    Federal and State Laws
  • 5. Equal Pay Act
    Immigration Reform & Control Act
    WARN: Plant Closing Bill
    Drug-Free Workplace Act
    Polygraph Protection Act
    Fair Credit Reporting Act
    National Labor Relations Act
    USEERA (Veterans Re-Employment Act)
    COBRA and HIPPA notification requirements
    Civil Rights Acts of 1964 & 1991
    Federal and State Laws (cont)
  • 6. Interviewing
    Investigating
    Discrimination
    Testing
    Independent Contractors
    Pre-employment / Hiring Process
  • 7. Questions that are prohibited:
    Whether the applicant has children
    or intends to have children.
    Marital status of applicant.
    Applicant's race.
    Applicant's religion.
    Applicant's sexual preference.
    Applicant's age (other than inquiring whether over age of 18).
    Whether applicant suffers from a disability.
    Applicant's citizenship status.
    Questions concerning drug or alcohol use by the applicant
    Interviewing
  • 8. Have you ever had or been treated for any of the following conditions or diseases?
    List any conditions or diseases for which you have been treated in the past three years.
    Do you suffer from any health-related condition that might prevent you from performing this job?
    How many days were you absent from work because of illness last year?
    Do you have any physical defects that preclude you from doing certain types of things?
    Do you have any disabilities or impairments that might affect your ability to do the job?
    Are you taking any prescribed drugs?
    Have you ever been treated for drug addiction or alcoholism?
    Have you ever filed a worker's compensation claim?
    Questions You Should Never Ask
  • 9. Can you perform all of the job functions?
    How would you perform the job functions? (If you want to ask any applicant this question, you should ask all applicants this question.)
    Can you meet my attendance requirements?
    What are your professional certifications and licenses?
    Questions You Can Ask
  • 10. Inquires are related to the job
    Ask for consent
    Be reasonable
    Check the rules for specific instances
    Investigating
  • 11. School transcripts
    Credit reports
    Bankruptcy
    Criminal background check
    Workers comp records
    Medical records
    Military records
    Driving records
    Investigating (special rules)
  • 12. Civil Rights – race, sex, color, national origin, religion
    Age
    Disability
    Servicemen
    Discrimination – who are protected parties?
  • 13. Refuse to hire
    Discipline
    Firing
    Deny training
    Fail to promote
    Pay less / demote
    Harass
    Disparte impact
    Discrimination – what is it?
  • 14. Is employee in a protected class?
    Is employer subject to anti-discrimination laws?
    Is employers conduct discriminatory?
    Is the reason the employer discriminated violate the law?
    Discrimination – what must be proven?
  • 15. Skills Test
    Aptitude Test
    Personality Test
    Lie detectors / honesty test
    Medical tests
    Drug Tests
    Be very cautious testing an applicant with disabilities!!! You are measuring skills required for the job, not their disability
    Testing
  • 16. Benefits
    Save you money
    Offers flexibility
    Saves on liability
    Allows you to “test” the waters
    Independent Contractors
  • 17. Disadvantages
    Less control over workers
    Workers come and go
    Right to fire depends on
    agreement
    May be liable for injuries
    IC suffers on job – Workers comp won’t protect you here
    May not own copyrighted materials
    May face risk of government audits
    Independent Contractors
  • 18. Make sure you have a written agreement!
    Make sure you get copies of documents
    Have them fill out a questionnaire
    Look at listed provisions in handout
    Be careful of the IRS!!!!
    Independent Contractors
  • 19. Can be used against you in 1st and 3rd party lawsuits
    Can invalidate some insurance provisions
    The test is “reasonably foreseen” actions of the employee/contractor
    Investigate
    Follow up on references
    Written policy
    Negligent Hiring
  • 20. Employment
  • 21. Employment at will
    Handbooks
    Employee files
    Performance Evaluations
    Employee agreements
    Workplace safety
    Workers compensation
    Sexual harassment
    Discrimination
    Wrongful termination
    Negligent Entrustment
    Employee Privacy
    Exempt v. non exempt
    Breaks
    Employment Issues
  • 22. Law in Indiana is that you can fire anyone at any time for any reason, UNLESS that reason is illegal.
    What is illegal? Can’t fire someone
    If they are exercising a statutory
    right
    Discrimination
    Refusing to do something illegal
    Employment at Will
  • 23. Why do you need them?
    Good business practice
    Sets boundaries and expectations
    Communicates directly to employee – no misunderstandings
    CYA
    Handbooks
  • 24. Make sure you have certain documents filed in this folder
    Do not put medical info/records or I-9 forms in here!!
    Keep files secure and confidential
    Be cautious what you place in here…remember employees
    have a right to view these files!
    Employee files
  • 25. Why have them?
    Sets individual goals, expectations, standards
    Open communication with employee
    Measures employee performance
    It CYA!!!!
    Performance Evaluations
  • 26. Non compete agreements
    Non disclosure agreements
    Confidentiality agreement
    Non solicitation agreement
    Employee Agreements
  • 27. OSHA - role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education
    Many workplace injuries you wouldn’t think of
    H1N1
    Ergonomics
    Workplace violence
    Motor vehicle safety
    Workplace Safety
  • 28. Worker’s Compensation –protects employers from civil liability when employee gets injured on job
    Is mandatory
    Employers pay,
    Not employees!
    Fault is irrelevant!!
    Workplace Injury
  • 29. When submission to or rejection of unwanted advances, to another employee or witnessed by an employee, explicitly or implicitly affects the individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment
    Examples: rubbing shoulders, lewd comments, conduct between two other employees, email jokes, pictures posted
    Sexual Harassment
  • 30. Illegal to consider certain characteristics with regards to promotions, job assignments, wages, termination, etc.
    Discrimination
  • 31. Refusing to break the law
    Retaliation for filing discrimination or safety claim
    Taking leave under the FMLA
    Not following own stated rules and policies
    For reasons not contained in the employment contract, if one exists
    Wrongful termination
  • 32. Failing to remove an employee from the position of authority or responsibility after it becomes apparent that the misuse of authority poses a danger to others
    Negligently providing an employee an object (dangerous instrumentality) which then causes injury to a 3rd party
    Negligent Entrustment/retention
  • 33. Surveillance – not a problem so long as employee does not have an expectation of privacy (i.e., bathroom stalls)
    Personal appearance – reasonable guidelines
    Off duty behavior
    Union activity – off limits
    Political / religious beliefs – off limits unless employee brings it to work, than subject to discipline
    Moonlighting – only if it conflicts with employers own business
    Marital status – off limits
    Illegal activities – cannot terminate unless activity concretely impacts employers business or workplace
    Employee Privacy
  • 34. Drug and Alcohol testing – Supreme court said both blood and urine testing were minimally invasive so long as:
    Not harmful to applicant or employee
    Conducted in employment environment
    Not directly observable by testor
    Searches
    Review best practices
    contained in handout
    Employee Privacy – cont.
  • 35. Phone calls
    Emails
    Voice mails
    Internet use
    Social media
    Texting / cell phones
    Employee Privacy - communications
  • 36. How does an employer protect itself?
    Adopt a policy
    Monitor only for legitimate reasons
    Be reasonable
    Communications
  • 37. Follows the rules of the FLSA
    Don’t fall into the trap of comp time
    Child labor laws differ from general rules relating to adult workers
    Exempt v. non exempt
  • 38. Teens / child laborer laws differ
    Breastfeeding provision
    No provision in Indiana for providing breaks to workers under 20 minutes
    Breaks
  • 39. Indiana received national attention last year when it discussed the concept of “workplace bullying”
    Similar to sexual harassment guidelines
    Workplace Bullying
  • 40. Unemployment
    Severance
    References
    Termination
    Post employment
  • 41. Employees terminated without cause are eligible for 26 weeks out of 52 week benefit period
    Employees who quit or are fired for misconduct are not eligible
    Visit the State of Indiana website for detailed info
    www.in.gov/dwd
    Unemployment
  • 42. Not required unless
    WARN
    Lead an employee to believe he/she would get it
    Employment agreement
    Oral agreement
    Handbook
    Given it to other employees
    Why? Soften the blow of termination AND helps avoid lawsuits
    Severance
  • 43. Warn an employee if it will not be favorable
    Keep it brief
    Stick to the facts
    Don’t be spiteful
    Don’t give false flattery
    Designate one employee to
    handle references
    INSIST ON A WRITTEN RELEASE
    References
  • 44. Think it through
    Is the firing for a valid
    reason?
    Don’t get personal
    Paper trail everything!!!
    Keep it confidential and private
    Be frank
    Ask for all access keys and passwords
    TERMINATION
  • 45. Questions?