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Workforce planning and employment


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Review of Laws for PHR / SPHR Preparation

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Workforce planning and employment

  1. 1. Workforce Planning and Employment Laws and Legislation PHR/SPHR Preparation
  2. 2. Employee Rights Legislation
  3. 3. Employee rights legislation  Numerous laws and regulations aims to end discrimination (a sensitive issue in the American society).  Discrimination practices hold employers liable
  4. 4. Title VII of the Civil Rights Act (1964)  The cornerstone of antidiscrimination legislation in US.  Prohibits discrimination or segregation in all terms of employment based on:  Race  Color  Gender  Religion  National Origin  Make it unlawful to limit, segregate or classify employees in any way that would deprive them employment or career progression opportunities based on the characteristics above.
  5. 5. Title VII of the Civil Rights Act (1964)  Provides equal opportunity to participate in training and have opportunity for advancement.  Makes it illegal to discriminate based on pregnancy, childbirth, or related condition as amended by Pregnancy Discrimination Act.  Prohibits sexual harassment  Prohibits discrimination in compensation.
  6. 6. Title VII – Coverage  Most private employers with 15+ employees on payroll.  All educational institutions  Federal, state and local governments.  Public and private employment agencies as employers and when referring for employment.  Labor unions with 15 or more members  Joint (labor-management) committees for apprenticeships and training
  7. 7. Title VII – Exceptions  Work-related requirements: practices that may lead to discrimination against a protected class can be considered legal if it is job-related and required by a business necessity.  Bona fide occupational qualification : if gender, religion, or national origin is a bona fide occupational qualification necessary for a job.  Seniority systems
  8. 8. Civil Rights Act  Allowed jury trials for cases where plaintiff seeks compensatory or punitive damages.  Provides (with limits) damage awards to victims of intentional discrimination in violation to:  Title VII  Americans with Disabilities Act  Section 501 of the Rehabilitation Act (which applies to federal governments employees only)
  9. 9. Age Discrimination in Employment Act-ADEA (1967)  Prohibits discrimination against persons of age 40 and over.  Exceptions:  If age is a bona fide occupational qualification  Executive and high policy makers can be required to retire at age 65 if they are entitled to receive company-sponsored retirement benefits of at least $ 44,000 and have held their position for two years prior to retirement.
  10. 10. Pregnancy Discrimination Act (1978)  Under the law it is illegal to fire or refuse to hire a woman because of pregnancy.  Employer can not force a pregnant to leave as she ready, willing and able to perform her job.  Employer should continue accrued seniority of an employee on leave to give birth or have an abortion.
  11. 11. Americans with Disabilities Act- ADA(1990)  Applies on employers with 15+ employees  Prohibits unlawful discrimination against qualified individuals with disabilities because of the disability.  Qualified means can perform the essential functions of the job with or without accommodation.  ADA Amendment Act –ADAAA (2008) amended and added more details to ADA
  12. 12. ADA- Key Definitions  Disability: physical or mental impairment that substantially limits one or more major life activities. Major life activities include:  Transferring/ mobility  Toileting/ personal hygiene  Bathing and dressing  Essential functions of the job: the primary duties of a job that can be performed by a qualified individual with or without accommodation.
  13. 13. ADA- Key Definitions  Reasonable accommodation: adjustments or modifications of job application process, work environment or circumstances to enable a qualified individuals with disability to be considered for a job and perform the essential functions of the job.
  14. 14. Genetic Information Nondiscrimination Act – GINA (2008)  Prohibits discrimination based on genetic information in both employment and health insurance.  Prohibits the employer from requesting, requiring or purchasing genetic information on the individual or family member. But, these exceptions apply:
  15. 15. GINA Exceptions  If the employer inadvertently requires or requests family medical history of the employee or family member.  For genetic services offered by the employer including wellness programs.  For compliance with Family and Medical Leave Act.  When employer purchases commercially available documents
  16. 16. Lilly Ledbetter Fair Pay Act (2009)  Creates an open time frame for filing wage discrimination claims.  Before this law, the employee could file discrimination claim within 180/300 days of the occurrence of the discrimination according to Title VII.  the clock renews (regarding the 180/300 days) each time employee receives compensation that is based on the alleged discrimination
  17. 17. Uniform Guidelines on Employee Selection Procedure  A procedural document created to assist employers in complying with Title VII, Executive Order 11246 and other laws.  Covers all aspects of selection process.  Adverse impact: occurs when a selection procedure works to the disadvantage of a protected class. If the selection rate of a protected class is less than 80% of the selection rate of the class with highest rate, this is considered adverse impact.
  18. 18. Adverse Impact-Example  It is also known as four-fifths rule.  Example:  Males are the majority group:  20/50=40%  Selection rate for females is less than 80% of selection rate of males adverse impact Group Interviewe d Hired Selectio n rate Males 40 20 50% Female s 30 6 20%
  19. 19. How to remedy adverse impact  Analyze data in more depth. Analysis of selection process components may not reveal adverse impact.  Modify the procedure  Stop the procedure and discard existing results.  Validate the job relatedness of the procedure  Justify the procedure as a business necessity.
  20. 20. Vietnam Era Veterans Readjustment Assistance Act  Law enacted to enable Vietnam veterans rejoin labor market and prohibit discrimination against them.  It applies to the federal government and federal government contractors and subcontractors of $50,000 entered before 01/12/2003  It prohibits discrimination against these categories of veterans:
  21. 21. Protected veterans  Specially disabled veterans  Vietnam era veterans  Recently separated (within one year of discharge)  Other protected veterans (the book contains more details)
  22. 22. Jobs for Veterans Act  Amended VEVRAA  It applies to the federal government and federal government contractors and subcontractors of $100,000 entered after 01/12/2003  Extended the protection of VEVRAA in many aspect as:  Included all disabled veterans  Discharged veterans within 1-3 years.
  23. 23. Rehabilitation Act (1973)  Prohibited discrimination based on mental or physical disabilities.  Applies to federal government and federal contractors with contracts over $10,000.  According to the law, employers are required to provide reasonable accommodation for the qualified disabled employees/ candidates unless undue hardship can be demonstrated
  24. 24. Rehabilitation Act (1973)  Undue hardship may be based on business necessity or financial costs.
  25. 25. Immigration Reform and Control Act (1986)  Regulate the work of foreigners in the US  Determines the types of visas for different worker categories  Determines the acceptable documents that demonstrate the identity and right to work in the US  Determines the mechanism for employers to verify the eligibility of employees to work in US.  A lot of detail, read thoroughly
  26. 26. Worker Adjustment and Retraining Notification Act (1988)  The law requires that covered employers to give a minimum of 60 days notice for plant closing or mass layoff to reduce the impact on affected employees.  Covered Employers:  Employers who employ 100 full time employees  Or Employers who employ full and part time employees working at least 4,000 hours/week
  27. 27. Congressional Accountability Act  It requires that federal employee relations legislation enacted by the congress apply to the employees of the congress.
  28. 28. Legislation Affecting Privacy and Consumer Protection
  29. 29. Privacy Act (1974)  This law protects the employment records of the federal government from disclosure without written authorization by the employee.
  30. 30. Employee Polygraph Protection Act (1988)  It prevents employers from using lie detector tests for pre-employment screening or during employment, with certain exceptions.  it prohibits the employer to require, request, suggest, or cause an employee or prospective employee to take or submit to any lie detector test.
  31. 31. Employee Polygraph Protection Act (1988)  it prohibits the employer use, refer, or inquire about the results of any lie detector test of any employee or prospective employee.  Prohibits discharge, discipline, discriminate against, deny employment, or threaten to take action against an employee or prospective employee for refusal to take a test, on the basis of the results of a test, for filing a complaint under the act or for exercising any rights afforded by the act
  32. 32. Exceptions  Federal, state and local governments  Tests administered by the federal government for federal contractors engaged in national security, intelligence or counterintelligence functions  To employees reasonably suspected of involvement in a workplace incident that results in economic loss to the employer  To prospective employees in certain jobs and industries, security guards, employees of pharmaceutical firms
  33. 33. Consumer Credit Protection Act (1968)  The acts limits the amount of wages that can be garnished or withhold in any week by an employer to satisfy creditors by 25% of disposable income in general.  It allows for 50% of disposable income for court orders related to child support or alimony.
  34. 34. Fair Credit Reporting Act (1970)  Employer must obtain a written authorization before a consumer report is ordered.  Consumer reports may include reports about: credit reports, criminal background checks, motor vehicle history and reference checks.
  35. 35. Fair Credit Reporting Act (1970)  Employer must provide:  Written notice that a consumer report may be used.  A copy of the report and notice of adverse action (if taken) within three days.  Written response to any request for complete disclosure within 5 days
  36. 36. Fair and Accurate Credit Transactions Act (2003)  Amended Fair Credit Reporting Act and relieved employers to use third parties for workplace investigations  Eliminated consent and disclosure when a third party conducts investigation that involves:  Suspected misconduct  Violation of law or regulations  Violation of any preexisting written policies of the employer
  37. 37. Equal Employment Opportunity/ Affirmative Action
  38. 38. Equal Employment Opportunity - EEO  Antidiscrimination legislation promised to stop taking employment decision based on race, gender, ethnicity, religion, age, color, military/veteran status or disability.  Decisions must be job and business related.  Protected class: people who are covered under a particular antidiscrimination law
  39. 39. Types of Discrimination  Disparate treatment: occurs when intentionally treating a protected class differently than other employees.  Examples:  Refusing to promote a female employee to a managerial position because women usually “does not succeed here”  Disciplining black employees when they violate policies while neglecting the violations of the white.
  40. 40. Types of Discrimination  Adverse/disparate impact: occurs when applying the same rules to all employees results in a negative effect on a protected class. Usually unintentional.  Examples:  Hiring high school graduates for a specific job may affect classes with limited access to education.  Requiring that applicants should lift specific weight in order to be hired may reduce the opportunity of women
  41. 41. Types of Discrimination  Perpetuating past discrimination: practices that repeats past policies like giving preference to applicants referred by current employees may appear neutral, but it may maintain the current mix.
  42. 42. Landmark Cases for Antidiscrimination Legislation
  43. 43. Griggs vs. Duke Powers (1971)  Employment discrimination need not to be overt or intentional to be illegal  Employment practices can be illegal even if applied to all employees  Places the burden on the employer to prove that requirements are job related.
  44. 44. McDonnell Douglas Corp vs. Green (1973)  Established the criteria for disparate treatment.  Ruled that a “prima facie” (on first view) case of disparate treatment can be shown if an employee:  Belongs to a protected class  Applied for a job when employer sought applicants  Qualified yet rejected  Was rejected by the employer kept looking for candidates.
  45. 45. Albemarle Paper vs. Moody (1975)  Tests used for selection/ promotion must be valid predictors for job success.
  46. 46. Washington vs. Davis  Test is legal if it is job related even though it has adverse impact
  47. 47. St. Mary’s Honor Center vs. Hicks (1993)  Employee must prove that an employer’s reason for adverse impact is based n a lie and that lie was to cover up discrimination
  48. 48. Mckennon vs. Nashville Banner Publishing Co. (1995)  After acquired evidence cannot free employer from discrimination liability
  49. 49. EEO Reporting  A governmental body has been created to enforce antidiscrimination laws; Equal Employment Opportunity Commission (EEOC).  employers with 100+ employees or federal contractors with 50+ employees and contracts of $50,000 are required to send annual reports about their workforce.
  50. 50. Report Form  The report should include breakdown of the workforce by race, ethnicity and gender for nine job categories.  different forms available based on industry.
  51. 51. Applicant flow data  Federal contractors and subcontractors must be able to identify, where possible, the gender, race, ethnicity of each applicant.  Applicant can be defined as anyone who expresses an interest in employment regardless of being qualified.  Employer can request applicants voluntarily to fill a self-identification form to provide gender, race, ethnicity.  Visual survey is a second option.
  52. 52. Affirmative Action  Affirmative action (AA) is a practice in which employers identify and correct any imbalances in underrepresentation of protected classes in the workforce (if exists).  Federal laws that apply to federal contractors and subcontractors that impose AA include:  Executive order 11246  VEVRAA and JVA  Rehabilitation Act  Legal obligations depend on contract value and number of employees.
  53. 53. Affirmative Action Plans (AAP)  Definition: written plans that focus on hiring, training, compensating, promoting and terminating underrepresented groups.  AAP contains narrative and statistical components.
  54. 54. Major elements of AAP  Organizational profile: shows the staffing patterns to determine if barriers to EEO exist within any organizational unit.  Organizational display: provides graphical representation of organizational units.  Workforce analysis: a list of job titles ranked from the lowest to highest paid within the organizational unit  Job group analysis: list of all job titles that comprise each job group.  Availability analysis: study of the internal and external sources to determine theoretical availability of women and minorities for established job groups
  55. 55. Availability analysis  Organization must examine the percentage of minorities or women with requisite skills in the reasonable recruitment area and percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization  The organization must compare percentages of minorities and women with availability and establish placement goals if considerable differences (underutilization) exist.
  56. 56. Auditing for EEO and AAP  Compliance review: comprehensive analysis and evaluation of the organization hiring and employment practices, AAPs and the result of AA efforts.  Off-site review: consists of analysis and evaluation of AAP and supporting documentation.  Focused review: consists of on-site review focused on one or more areas of AAP and its application.
  57. 57. Fairness issues  Reverse discrimination: courts has consistently allowed temporary preference to protected classes. Many cases have dealt with this situation.  Quota vs. merit hiring: Quota involves hiring fixed number of individuals based on protected classes that must be met at all costs. Quota are usually not allowed by courts.  Bona fide occupational qualification: very narrow exception and checked thoroughly by courts.
  58. 58. Employment Practices Liability Insurance  Covers organizations against workers claims of rights violations.  Covers legal costs regardless of the final judgment.  Does not cover:  Punitive damage  Liabilities covered by other insurance.  Employer may have duty to notify the carrier upon receipt a letter from a lawyer even if no claim has been filed.
  59. 59. Gender Discrimination and Harassment in the Workplace
  60. 60. Types of Sexual Harassment  Quid pro quo: means “this for that”. Occurs when an employee is forced to choose between giving in to superior’s sexual demands or forfeiting an economic benefit.  Hostile Environment: occurs when sexual or other discriminatory conduct is so severe and pervasive that it interferes with an individual’s performance. It can be created by supervisors, coworkers or nonemployees such as customers.
  61. 61. Precedent-Setting Harassment Cases  Meritor Savings Bank vs. Vinson: Held that sexual harassment violates Title VII of the civil rights act.  Harris vs. Forklift System, Inc.: established the “reasonable person” standard.  Onacle vs. Sundowner Offshore Services, Inc.: established same gender harassment is actionable.  Faragher vs. City of Boca Raton and Ellerth vs. Burlington Northern Industries: held employer liable for supervisory harassment that resulted in adverse employment action.
  62. 62. Employer Response to Harassment  Have a written policy with clear definition of harassment and a statement that it will not be tolerated.  Establish effective complaint procedure  Provide training  Investigate every complaint  Discipline if necessary  Communicate using multiple methods to management and employees.