Mirror of Justice

How to Reduce the Potential for Employee Discrimination

July 18th, 2009 at 03:01pm Under Uncategorized

Employment discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. Discriminatory practices include exhibiting a bias in hiring, promotion, job assignment, termination, compensation, and various forms of harassment.

The U.S. Equal Employment Opportunity Commission reported 72,302 individual discrimination charge filings in 1992. By 2004, the number had grown to 79,432. As a Human Resource Manager or business owner, you may be able to reduce your chances of an employee suing you by instituting the following policies and practices:

1. Hire employees without consideration of their race, national origin, gender or age.
2. The handicap of an applicant should only be considered in the context of whether it will impede their job performance. It is important to take into account whether or not you could reasonably accommodate the individual’s handicap so that they could perform the job.
3. If you are turning down an applicant because of something on their reference or security check, you should inform them of the reason why.
4. Have written job descriptions, including qualifications and requirements for all positions within your company.
5. Post all job openings and promote without any bias.
6. Review all current benefit, pension and retirement plans for any discriminatory language.
7. Inform employees of performance standards and penalties for violating company policy.
8. Provide written reprimands and opportunities to correct deficiencies.
9. Evaluate all employees regularly and in writing. Provide a copy of the evaluation to the employee for their records.
10. Institute a zero-tolerance policy for discriminatory actions on the part of any employee.

One final important practice that you should follow is to document, in writing, every phase of an employee’s time with your company. From hiring to the firing/layoff/resignation, every step should be well documented. In the event that there is a lawsuit, courts will expect to see written records of important decisions, meetings, problems, and company policies. Additionally, they will want to see proof that you were treating all employees the same.

While there is no list that can cover all possible safeguards, instituting the policies and practices listed above can reduce your chances of facing a lawsuit. More importantly, they just represent sound business practices that any business with employees should follow.

HAWAII EMPLOYMENT LAW ALERT: DEPARTMENT OF LABOR TO INCREASE AUDITS

July 18th, 2009 at 04:10am Under Employment Law

HAWAII EMPLOYMENT LAW ALERT:  DOL TO INCREASE AUDITS

On March 24, 2009, the Department of Labor (“DOL”) issued a statement making clear that employers, including Hawaii employers, can expect an increase in DOL audits.  The statement, issued through Secretary of Labor, Hilda Solis, can be found at the DOL’s website, http://www.dol.gov/opa/media/press/esa/esa20090324.htm.

Among other things, Ms. Solis stated that she is “committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”

In addition:

The department’s Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

Finally, Ms. Solis stated that:  “I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country.”

Given the expressed intent of DOL, it is critical that Hawaii employers take the necessary steps, now, to both reduce the risk of potential liability connected to a possible audit AND to prepare for audit itself. 

Thus, Hawaii employers should at a minimum take the following steps prior to and during the audit:

After the audit is completed, it is critical that the Company not repeat any errors in policies or procedures identified by DOL.  Accordingly, any necessary revisions should be made promptly with assistance of counsel.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

California Labor Law Challenges, and Solutions

July 15th, 2009 at 01:06am Under Labor Law

Being an employer is a daunting task. Hundreds of employment regulations, insurance guidelines, Senate bills and Federal Acts (such as FMLA, FLSA, HIPAA, TEFRA and FEHA, to name a few) distract business owners from focusing on their core operations and profitability. In particular, California employers need to be aware that California Labor Law differs from federal law in significant ways that can make life even more difficult, if not downright treacherous, for businesses with limited human resources expertise.

Although the Fair Labor Standards Act sets a minimum standard of protection for employees working in the USA, individual states are permitted to extend the Act to provide a higher degree of protection to employees in that state.  California has taken full advantage of that facility, and there are many aspects of this act that California has applied more liberally than practically any other state.

Take overtime law for example. California law requires an employer to pay an employee overtime after 8 hours work in one day at 1.5 times the normal rate, and after 12 hours work in any one day at twice the standard rate. However, this does not apply to ‘exempt’ employees, such as those involved in managerial or intellectual work. Federal law only requires time and a half to be paid for any time worked over 40 hours in a week.

The California Fair Employment and Housing Act (FEHA) differs profoundly from the federal law, particularly in employment discrimination law where it is much wider reaching and more rigorous than federal law.  A case in point occurred recently, where an employee of a prestigious California hotel filed a discrimination lawsuit against his employer on the basis of sex, and also for retaliation, in violation of the FEHA. 

The act forbids discrimination against an employee on the basis of sex, race, color, age, religion and other grounds, and illegalizes retaliation by the employer against an employee carrying out a ‘protected’ activity such as filing a charge of discrimination.  There are a number of defined protected activities, and this act is likely beyond the capability of the average human resources department of most companies to handle.  This is the sort of case best passed on to a human resources (HR) consulting firm.

The case, Jones v. The Lodge at Torrey Pines Partnership, had originally been heard in front of a jury, and debated whether or not an individual could be held personally responsible for proceedings relating to retaliation against an employee.  The jury decided for the plaintiff and awarded compensation against the Lodge and the supervisor accused of the retaliation. However, their verdict was overruled by the judge who stated that there was insufficient evidence to prove the case against the supervisor that an adverse reaction had been carried out for reasons of discrimination or retaliation for the sexual orientation of the plaintiff.

The judge stated that individuals (the supervisor) cannot be held liable for retaliation in the same way that they can be for harassment.  The case went to the Court of Appeal, which disagreed with the judge, and stated that individuals can be held responsible for retaliation.  The case ultimately reached the California Supreme Court which disagreed, stating that the individual cannot be held responsible..

What chance does company human resource personnel have in correctly interpreting law if even the law courts disagree?  It is next to impossible for a company in California to apply company policy when the law itself is so difficult to interpret that judges, Courts of Appeal, and the Supreme Court disagree. The labor laws of California are too difficult to understand for a company to rely on non-specialized personnel to manage their labor relations policies.  The consequences of getting it wrong could be catastrophic. Many employers are feeling frustrated with this lack of clarity and constant risk of violating the law, and are turning to experts in the Human Resources Outsourcing industry for help.

While many businesses employ highly educated staff, most do not have the experience to understand the finer points of law.  It is not just the understanding that matters here, it is knowing the right course of action to take in such circumstances.  Perhaps things could have been done differently in the Jones v. The Lodge case to prevent it from reaching court, or perhaps the supervisor could have been better trained by the company.

Whatever the answer, you are more likely to come to the right solution with the help of professionals who manage these complex issues on a daily basis. California labor law is sufficiently complex for your company to turn to the professionalism and expertise of a Human Resources Outsourcing firm to keep you out of trouble. HR outsourcing is not as expensive as you might believe, especially when you consider the alternative.

Suggested resource:

California labor law is very complex, and ignorance can cost you plenty. If you are considering Human Resources Outsourcing as part of your HR satrategy, and want to reduce your California employment risks, check out http://www.cpehr.com for a free HR analysis.  It costs nothing to investigate.

Changing Employment Laws in 2009: What You Need to Know

July 14th, 2009 at 04:11pm Under Employment Law

For many, the dawn of 2009 holds a great deal of uncertainty, while for others it represents a chance at a fresh start and the potential for improvement – whether personal, professional, financial, or some combination of the three. For the human resources industry, 2009 will undoubtedly be a year in which changes in our government and our economy will be noticeably reflected in changes to employment law. The election in 2008 played host to a huge number of ballot issues regarding hiring processes and worker benefits. Such issues are again at the top of the incumbent legislature’s agenda in 2009, and will have a direct impact on not only the American worker, but on the employers and HR professionals responsible for their pay and benefits.
After examining a number of the bills proposed and voted into action for 2009, leading research indicates some overall legislative trends emerging in three major areas of human resources:Healthcare Reform
As the number of Americans without insurance continues to rise, finding a way to provide individuals with better access to affordable healthcare was at the forefront of heated issues in the 2008 election. While already a major issue in 2008, the incoming Congress has recently announced that healthcare reform will be among its top priorities this year. Just prior to the start of 2009, for example, Congress passed the Mental Health Parity Act, a measure requiring many employers to broaden their mental health and substance abuse coverage for employees.
Meanwhile, a number of states and municipalities introduced new legislation addressing employers’ responsibilities concerning the health of their employees. Washington, DC and Milwaukee, for instance, passed initiatives mandating that employers provide paid sick leave for workers. New Jersey joined the movement by signing into law a bill requiring employers to give six weeks paid leave to staff members caring for a sick relative or new child.
However, in light of the economic crisis, further healthcare legislation may not increase quite as dramatically as once expected – on the state level, at least. The Society for Human Resource Management (SHRM) predicts that in light of “widespread budget shortfalls predicted in nearly half of the nation, health care reform is likely to be less of a front-burner issue in the states.” Instead, SRHM predicts that cash-strapped state legislatures will be looking to the new administration to handle this issue on a federal level.Immigration Reform
A hot-button issue with immediate implications for employers and HR professionals, immigration was the topic of a significant number of bills introduced in 2008. A total of 26 states passed new legislation addressing immigration concerns, many of which imposed new penalties on companies employing undocumented aliens.
Playing a large role in much of the new immigration legislation was E-Verify, the government’s Employment Eligibility Verification System. In 2009, all federal contractors and subcontractors will be required to use the system. Likewise on the state level, many immigration bills passed in 2008 require employers to use E-Verify or similar systems to ensure they are not hiring illegal workers.
Unlike the issue of healthcare reform, immigration legislation is predicted to continue occurring mainly at the state level while, according to SHRM, any sort of comprehensive reform at the congressional level is considered “unlikely.” Again, however, due to the budget shortfalls and the economic crisis it is difficult to predict whether states across the country will see a continued push for immigration reform. However, in some more conservative U.S. regions like the South and Midwest, employer penalties for hiring illegal workers may be more severe.Workplace Safety
Concerns about workplace safety and efforts to increase employee health and wellness were evident in a number of new state laws put into effect in 2009. Safety concerns ranged from matters such as office air quality to more grave issues like gun control in the workplace.
On a federal level, increased attention to workplace safety was made clear in a large increase in government money directed toward the Occupational Safety and Health Administration (OSHA) for its 2009 fiscal year. OSHA received a budget increase of $15.7 million, part of which is being used to conduct increased workplace inspections in 2009. Likewise, the incoming presidential administration has touted workplace safety as a priority, and is predicted to take a second look at several previously failed workplace safety bills, including the regulation of combustible dusts in the workplace and mandating stricter ergonomics requirements for employees working in the healthcare industry.
On a state level, Oregon passed a law requiring all workplaces to be “smoke free,” prohibiting smoking within ten feet of the entrance to a building or worksite. In the meantime, eight other states, concerned with a growing number of gun-related incidents in the workplace, have enacted various laws concerning an employer’s right to limit the possession of weapons on company property.
While only time will tell how these potential changes to federal and state policies will play out over the course of the next year, staying aware and informed of proposed legislation can help employers and HR professionals prepare in advance for new regulations, develop appropriate contingency plans, and ensure a smooth and compliant transition if and when the changes occur.

Do You Really Need New Labor Law Posters?

July 14th, 2009 at 07:06am Under Labor Law

by Janet Attard

If you run a business and have employees, there are a slew of federal and state labor law notices you’re required to post where employees can see them each day. These are often called labor law posters, or compliance posters. They include things like minimum wage laws, the federal USERRA, non-discrimination notices, and more.

Keeping up with everything that ought to be posted and making sure that the most current notices are posted in the workplace can be a real chore for big and small businesses alike. What’s more, posting a collection of paper notices can make your office look messy.

To solve the problem, a number of companies sell labor law posters that combine all the state and federal regulations on one or two posters. The posters, in general, are a good thing. They tidy up offices and help businesses stay in compliance with labor laws.But unfortunately, some of the companies that market labor law posters by mail use hard-sell marketing tactics to get you to replace your labor law posters before you really need to. In fact, some of the marketing materials that get sent in mail seem somewhat misleading and deceptive.

One ploy that’s been used in various parts of the country is a mailing that has the word FINAL NOTICE in all capital letters on the top of the page of an official-looking document. Below the “Final Notice” headline was text stating that the employer must comply with the new labor posting requirements and that failure to do so could lead to government fines of up to $17,000 and other possible dire consequences.

Other tactics include mail-merging the name of the recipient company into the letter and using text in the letter such as a Notice Number, Reference Number, and a Reply By date designed to make recipients think the mail is somehow an official warning.

If your business gets a notice like that, take the time to look at who it really comes from. If you see the words poster service, or compliance service, or if you see an out-of-state address, you can be sure the official-looking “Notice” is just a sales letter. Another dead giveaway: the letter will tell you how to order labor law posters from a private company.

If you’re unsure when labor law notices you need to post were last changed, check with the US Department of Labor and your state labor department to find out if there have been any changes in required postings. Remember, too, that no matter what the labor law poster companies tell you, you don’t need to buy a new poster just because it’s a new year. You only need to replace your posters when the state or federal laws listed on them change. For a list of the latest changes in state and federal labor law posters see http://www.businessknowhow.net/posters/updates.asp.

© 2008 Attard Communications, Inc. Janet Attard is the founder and CEO of Business Know-How, a popular small business website that has been providing information and resources to businesses for 20 years. BusinessKnowHow.com is a source for labor law posters and safety posters. The website also provides a wealth of ideas, tips and hints for marketing and managing small businesses. Subscribe to the Business Know-How newsletter at http://www.businessknowhow.com/newsletter/subscribe.htm

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