Legal Issues In Human Resources

11,819 views

Published on

Presentation regarding the various legal aspects concerning Human Resources

Legal Issues In Human Resources

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

×