9. Legislative News
Sexual Orientation Protected by SCOTUS/EEOC
Discrimination: 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
10. Employment Law Hot Spots
Lily 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 million
Disability Discrimination and Accommodation for Managers
ADA https://www.pryor.com/trainingrewards/Training/OnDemand/46138
National Labor Relations Board (NLRB)
◦ Protected concerted activity and social media
The Impact of Social Media Within Your Organization
3
11. 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
12. 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.
37
15. 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
16. 16
We are the ONLY
SURVIVORS!!
IMPORTANT ANNOUNCEMENT!!!
17. 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
18. Civil Rights Act 1964
Original Protected Groups
Cannot discriminate on the basis of:
Race
Color Discrimination: The Protected Classes
Sex
Religion
National origin
5
19. Civil Rights Act of 1991
Money 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
20. Protected Groups Added
Also cannot discriminate on the basis of:
Handicap (later broadened to “disability)
Age
Pregnancy
Veterans
Genetic Information
5
21. 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
22. 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
23. The Truth
Regularly, 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
26. 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.
32. I-9 FORMS
# 3 AUDIT AREA
Nationally!
Are your I-9s Compliant?
82-86
33.
34. 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
35. Americans with Disabilities
ADA 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
36. 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
37. 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
41. Trainer Bonus Gifts
with any order placed during this seminar
SOP Development Guide
With samples of W-4 SOP and others
Affordable Care Act Updates
Two documents – Total 17 pages of updates/checklists
FMLA
5 Part FMLA Webinar Series
Front Loading PTO Policy
42. 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
43. 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
44. Be a TOP Place to Work!
1. Flex time
2. Home commute
3. Job sharing
4. Compressed work week
Create a Culture of Accountability/Recognition
Budget for training and development
Tuition assistance programs
Provide ‘low to no’ cost incentives
Definition: Who are WE?
13
45. 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.
14
46. Interviewing Questions
Behavior-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
15-16
47. Make the Hiring Decision
At-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
17
48. Background Checks
Background 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
18
49. Manage Contract Labor
Appoint 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
50. Manage Contract Labor
9. 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
51. 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.
21
52. 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?
54. Issues in Health Insurance
HIPAA 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
24
55. COBRA
1. 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.
25
56. 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
26
57. 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
27
58. Flextime and Off-Site Considerations
Flextime 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
28
59. 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
61. 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
30
62. 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.
30
63. Arbitration
To 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.
32
64. Personality Styles
Workers 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
65. Who Am I?
Who AreThey?
FOUR Main Personality Types
Rob and Mary Hambleton
RED
YELLOW
GREEN
BLUE
66. My Role in Life
I am the ___________________ in my peer group.
◦ Mother
◦ Father
◦ Child
◦ Organizer
◦ Student
◦ Teacher
◦ Nurse/Doctor
◦ Patient
◦ Counselor……………..
67. Difficult Personality Types
Dr. Rick Brinkman and
Dr. Rick Kirschner
Know It All
Thinks They Know It All
Tank
Passive
Grenade
Sniper
Whiner
Yes Person
No Person
69. Dr. Tony Alessandria's Platinum Rule
When 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……………
71. 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
79. 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
81. 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
38
82. 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.
39-41
83. 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
84. 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
86. 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.
87. 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.
88. Acts of Aggression
Which 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;
89. Acts of Aggression Which May Indicate
Risks (Continued)
Obscene phone calls;
Intimidating presence; and
Harassment of any nature.
90. 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.
91. 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
92. 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
93. 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
41
94. Reduce Company Liability
Recognize 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
41
95. Overcome Substance Abuse in the
Workplace
Testing 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
42
96. Harassment in the Workplace
1. Hostile Work Environment
2. 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
97. Workplace Bullying
Repeated, 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
98. Employee Privacy Rights
Best 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
45
100. Employee Self-Evaluation
The 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
101. 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
102. 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
103. Objective Documentation
No 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
104. 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.
51
105. 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
52
107. 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
57
108. Edit Handbooks for
Implied Contract Language
◦ Temporary employee
◦ Permanent employee
◦ Probationary period
◦ Only terminated for cause
◦ Promising adherence to disciplinary process,
regardless of circumstances
61
109. 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
61
110. Documentation
That Can Be Subpoenaed
◦ Manager notes
◦ Applications
◦ Performance appraisals
◦ Disciplinary records and performance
improvement plans
◦ Promotion records
◦ Test results
63
112. 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
