What’s obscurely covered under the ADA?

30 Sep

The Americans with Disabilities Act of 1990 provides guidance for employer hiring practices and policies.

In human resources departments across the U.S., people are working diligently to comply with federal, state and municipal regulations with regard to recruiting, hiring and employee policies. However, it can be a difficult task keeping up with every law and amendment, ensuring the business is free from legal liability for noncompliance. All the same, ignorance of the law is never a defense for human resources managers and business owners. They need to understand how the various kinds of legislation impact the way they operate on a daily basis, especially laws that pertain to civil rights.

The Americans with Disabilities Act of 1990 is a landmark ruling that has changed the way companies accommodate individuals who have a disability or what other people perceive as a disability. The U.S. Department of Justice explained the disability can either be "a physical or mental impairment that limits one or more major life activities."

Under the ADA, there are several titles that provide guidance for employers, government agencies and programs, public transportation and building operators and telecommunications services.

Some of the provisions of the law, such as providing disabled individuals with equal access to employment and benefits, are fairly straightforward. At the same time, an employer can't ask about a job seeker's disability prior to making an employment offer. These concepts fall in line with many of the pillars of the Civil Rights Act of 1964. However, there can be a gray area when it comes to what qualifies as a major life activity.

Who is most misinterpreted as a covered person?
The ADA doesn't go into the greatest detail about what qualifies as an impairment, which lends to some confusion about what employers should look for. The American Cancer Society listed several of the major life activities. These include:

  • Caring for oneself
  • Seeing
  • Hearing
  • Standing
  • Speaking
  • Breathing
  • Learning
  • Reading
  • Concentrating
  • Communicating

However, this list isn't exhaustive, and the ADA Amendments Act of 2008 has expanded the definition to some extent. Now, many of the primary bodily functions are covered by the ADA, including issues relating to cell growth, as well as the excretory, nervous, respiratory, endocrine, immune and reproductive systems, the CSA wrote. As a result, many individuals who have some form of cancer are protected under the ADA, even when the disease goes into remission.

One of the most important caveats to the law is that the employee must be able to perform their essential job functions in spite of his or her disability. While an employer can't refuse to hire an individual because he or she isn't able to complete ancillary tasks, HR managers are well within their legal rights to pass over an individual who doesn't fulfill fundamental requirements for a position.

What can employers do when they're not sure about a diagnosed condition?
Recently, employers have faced the difficulty of interpreting those dealing with obesity as disabled persons. Becker's Hospital Review highlighted a 2011 case in Texas during which the Equal Employment Opportunity Commission ruled that morbid obesity was a bona fide disability. Prior to the ADAAA in 2008, the EEOC suggested obesity would rarely qualify as an impairment, but the agency has changed course on the matter specifically when there's a physiological cause for the condition.

The Texas case involved a 600-pound forklift operator who required a seatbelt extension to securely operate the machinery. The employer declined to accommodate the request and terminated his employment because he wasn't able to perform his essential job function. The company had an opportunity to provide reasonable accommodation but decided to face litigation and lost the argument.

In this case – and others like it – it's advisable for an employer to seek out the guidance of the disabled employee's medical professional. Especially with the case of a morbidly obese worker, it's important for a company to understand the underlying physiological causes of the condition before assessing their options for recourse.

What happens when an employer can't provide reasonable accommodation?
There are a few reasons why a business doesn't necessarily have to honor the request for accommodation. Organizations with fewer than 15 employees aren't required to follow ADA regulations relating to employment, the Department of Labor explained.

At the same time, when a request would cause undue hardship, the employer doesn't have to honor it. The enterprise would have to prove that, due to its size or organizational structure, the expense of accommodating a disabled worker would substantially hinder its operations.

Therefore, should an employer move to fire? What are the alternatives? One of the common misconceptions about reasonable accommodation is that it is overly expensive. The DOL indicated the majority, or two-thirds, of requests require less than $500 on the part of the employer to address the situation.

Otherwise, the responsibility resides with the employer to judge whether it's more reasonable to fire the current worker and recruit another employee in the event that the company can't accommodate a disabled staff member.

Does anyone really care about performance evaluations?

30 Sep

Avoid a Dysfunctional Performance ReviewWhy do manager’s consistently tell human resources that they dread writing and delivering performance evaluations? This is a question that human resource professionals struggle with every time they hear it. Most studies conducted by professional human resource organizations have proven that companies that provide regular feedback to their employees have higher retention rates and see greater improvement in overall performance than those that rely on annual evaluations. So, why do human resource professionals consistently need to prove this fact to their management teams? Why  are managers so fearful?

Perhaps it’s what occurs during the annual performance evaluation meeting with the employee? Let’s look at a typical scenario. The manager delivers the annual feedback; the employee is “surprised” because he or she hasn’t heard any of that feedback all year long and now the employee “challenges” their manager on the evaluation claiming his or her evaluation isn’t “fair.” Aha, there’s the dreaded confrontation associated with the review. Here it is. Face-to-face confrontation. Why would the manager fear this confrontation? Perhaps, it’s the fact that manager is suddenly put into a defensive position? Could it be that the manager failed to provide regular feedback to the employee throughout the year and has no choice but to deal with it now? Is that fair? How would that manager feel if this was done to her? Maybe this has happened to the manager before, and now the manager believes it’s perfectly acceptable to do the same thing to her direct reports? Maybe it’s a new manager who believes he knows what he is doing, but really doesn’t have a clue? Did ego come into play at all? There could be a lot of reasons.

In any case, employees need guidance. They need regular feedback. Whether that feedback is positive or negative, employees need and want to hear it. The manager needs to “manage” and learn to deal with it. How do managers expect to receive positive behavior from their employees without any reinforcement from the manager on the feedback of their behavior? How does an employee know what is expected of him or whether or not he needs to improve upon a certain behavior if he has not been given any direction throughout the year? You can clearly see how these disconnects occur.

Aside from the myriad of legal issues that often arise from continued performance feedback “avoidance,” its helpful (and necessary) for managers to educate themselves on how to deliver feedback. A lot of this is common sense. So, why do many managers feel it’s the responsibility of human resources to educate them on why employee performance feedback is so important? Why do managers tell human resource professionals, “I haven’t received any training on it so I didn’t know I should be doing it”? Why do managers feel they do not have accountability for this aspect of their management function? Like any other skill, performance feedback training needs to be cultivated. Since each and every person and situation is different, it’s impossible for the human resource professional to facilitate definitive training needed to cover every situation. It’s up to human resources to guide and counsel their management teams. What that means is that human resources should be relied upon to guide and counsel management on decisions that affect their people and the overall business. Unless it is a first-time manager, human resources can help to provide the education needed to get the manager up to speed and on the right path. There must be accountability on management’s part to take ownership of their direct reports by providing regular feedback to them, then seek human resource guidance and counsel on issues where the desired outcome of an employee’s performance has not or cannot be achieved through the development plans that the manager has set forth for the employee to follow to get that performance back on track.

Visit www.sagehrms.com to see all of the available solutions to help you manage the total employment lifecycle process.

Healthy…or NOT?

23 Sep

For mPrevent Dysfunctional Performance Reviewsany years now, wellness programs have been a fixture in work-based health benefits, and they continue to gain traction. According to the Kaiser Family Foundation, 77% of firms offering employee health benefits also provide at least one wellness program.

Increasingly, employers are focused on addressing lifestyle diseases that contribute to the poor health of their employees and to rising health care costs.  According to a survey of large companies conducted by the National Business Coalition on Health, employers believe workers’ unhealthy lifestyle habits, including a poor diet, smoking, lack of exercise and alcohol consumption, are responsible for the rise of chronic diseases, such as heart disease and diabetes.

This has led to a wider adoption of workplace wellness programs to help employees retain and/or improve their health.

Some of the more common wellness programs in which employees are asked to participate are those that involve screening activities, such as health risk assessments and other biometric assessments to collect information about an employee’s height, weight and blood pressure, among other measures.  In fact, according to the RAND Employer Survey, 80% of employers with a wellness program screen their employees for health risks.

Other programs ask employees to take action to address specific lifestyle behaviors known to impact health. For example, smoking cessation classes and weight loss programs that include education about nutrition and exercise are very common among companies with workplace wellness programs.

It’s common for employers to offer financial incentives, such as reduced insurance premiums, cash and gift cards to encourage workers to participate in wellness programs. In fact, the RAND Employer Survey found that nearly seven in ten companies offering workplace wellness programs use financial incentives as a strategy to encourage employees to get involved.  Often, companies require employees to demonstrate that they’ve made some headway toward their health-related goals before paying-up.

The Affordable Care Act only bolsters the wellness trend by increasing the amount by which companies can incentivize employees.  Starting in 2014, companies can increase the amount they reward workers for taking part in wellness programs from a maximum of 20% of the cost of health coverage, to 30%, and up to 50% for participation in anti-smoking programs.

Understandably, the growth of workplace wellness programs has raised concerns about how employee health information is being used, and whether some people are being discriminated against based on their weight or other health measures, such as blood pressure or cholesterol levels.

A recent high profile case at Penn State in which the university required employees to fill out health questionnaires or pay a penalty, caused an uproar that resulted in the university softening its position. CVS raised eyebrows earlier this year when it required employees to take a health screening that captures body weight, blood pressure and other health measures or pay a $600 annual penalty.

Employers are required to comply with HIPAA laws to protect the health-related information they collect from workers. To prevent discrimination, the Affordable Care Act requires that people with medical conditions that make it difficult for them to meet standards be given reasonable alternatives to qualify for rewards.

The jury is still out on how effective wellness programs are at changing employee health behaviors, but it’s clear that employers’ interest in using wellness programs as one way to help workers improve the state of their health and control health related costs is here to stay.



Will “ban the box” work?

22 Sep

"Ban the box" initiatives have changed the way employers screen employees for criminal history.

First of all, what is the box? Traditionally, it was a question on job applications that asked job seekers to divulge whether they've been convicted of a crime. Human resources managers should be familiar with the "ban the box" movement, its impact on employee management and activities with regard to both grassroots organizations and the Equal Employment Opportunity Commission.

The National Employment Law Project, a public policy research group, released a resource guide in July 2014 that explains how many individuals are affected by criminal histories during the job application process. In 2011, there is an estimated 65 million U.S. job seekers with records that would show up when an employer ran a criminal background check. At the same time, 92 percent of employers in an EEOC survey indicated they perform these background checks on all or a portion of the job seekers who apply for positions within their companies. Without question, the impact of criminal history is far reaching. Yet, the main goal in scrutinizing applicants in this manner is to mitigate risk in the workplace, the EEOC explained. For instance, employers want to avoid incidents involving fraud, theft and violence.

As of September 2014, there are 13 states that have comprehensive "ban the box" policies, while nearly 70 cities have implemented the change in hiring policy. According to the EEOC, a criminal record is not a protected status under Title VII of the Civil Rights Act of 1964, which seeks to prevent and penalize discrimination based on gender, race, religion and national origin. This may be part of the reason why a growing number of states, municipalities and counties are banning the box on job applications, meaning employers can directly ask about past criminal conduct.

What does it mean for employers?
Human resources managers and business owners need to understand the regulations established by their state and local governments. For example, legislation in Colorado only impacts public employers, and they need to be able to clearly identify a link between a conviction and the job the applicant is seeking. If there's no connection, then the employer can't use the conviction as a screening mechanism. In addition, arrests and expunged criminal records should be ignored during the hiring process as well. Meanwhile, the Illinois statute applies to private and public employers with 15 or more employees, but there are few other stipulations, meaning there aren't limits on screening based on time or record. In both states, however, business owners can't conduct a criminal background search until the person is provided a conditional offer of employment, and, in Illinois, until the applicant reaches the interview stage.

The EEOC also advocates for judicious hiring policies in order to give applicants with a criminal history a fair chance at employment. In other words, it's recommended that employers weigh the degree of seriousness of past criminality, conduct since the offense and whether the behavior would prevent the individual from performing the sought-after role.

Employers should also keep disparate treatment discrimination in mind during the hiring process, the EEOC wrote. In reality, African American and Hispanic people in the U.S. are arrested at much higher rates than their white counterparts. As a result, many employers – often unintentionally – have workforces that are not representative of the applicant community, which is indirectly due to the racial backgrounds of job seekers. Human resources software can help employers identify this kind of inequality, allowing them to put fair hiring policies in place.

What does it mean for convicted criminals?
While arrests don't necessarily equate with wrongdoing, convictions usually provide solid proof of misconduct, the EEOC explained. However, different states have specific policies with the way employers can use criminal history to screen applicants. Much like business owners must educate themselves, convicted criminals must also be aware of the legislation in their particular region as it pertains to their employment opportunities. For instance, the Minnesota regulations prohibit employers from using misdemeanors that included no jail time as the basis for evaluating a job seeker.

However, it's not a bad idea for job seekers with a conviction record to be prepared to answer questions about their criminal history during the job interview. Depending on the company and industry, the employer may be forthright in asking for an explanation of past behaviors and whether it will affect the person's job performance.

What industries are exempt from this?
Not everyone is expected to abide by the "ban the box" legislation. There are federal mandates that explicitly limit access to certain jobs based on a specific criminal conviction within the past 10 years, such as an airport security screener. Other industries that have their own hiring policies include federal law enforcement, child care workers in national government positions, banking, insurance, defense contractors and some health care positions.

The Americans with Disabilities Act at 23: What employers need to know

22 Sep

Lawyer and ADA specialist Mary Creighton helps explain the finer points of the law.

One of the most important pieces of legislation to influence employee management in the modern workplace was the Americans with Disabilities Act of 1991. Despite the fact that this law is in its 23rd year of enforcement, there are still a number of companies that either don't understand the nuances of the act or remain willfully ignorant. Regardless of the circumstances, business owners are responsible for educating their human resources directors and managers on the ins and outs of the ADA and its amendments to prevent legal action.

Myra Creighton has been with Fisher & Phillips, LLP since 1993 and specializes in ADA and Family and Medical Leave Act claims. She spoke with us to illuminate the finer points of the legislation as they relate to talent management and recruiting.

Q: Who's covered under the ADA?

A: Any individual who has a disability, an actual disability, which means you have an impairment that substantially limits you in a major life activity. The word "substantial" would suggest just what that term means, but it doesn't.

[When] the ADA Amendments Act was passed, Congress asked the Equal Employment Opportunity Commission to redefine this term so that it's broader. Rather than defining it, the EEOC came up with a bunch of guidelines for it.

In the statute itself, one of the issues [that hadn't been there] before was if you had a mitigating measure, such as medication or prosthetic devices, you weren't disabled. Now, you can't take into account, in analyzing whether someone is disabled, their medication. So, of course, most insulin-dependent diabetics are going to be disabled. People on high blood pressure medication, when you have to consider them in their unmitigated state, are going to be disabled.

So, then there is a record of a disability, which says, "In some point in the past, I was diagnosed with a disability."

And then one of the biggest changes was perceived as, prior to the Amendments Act, the way the court construed that term is "I, as the employer, have to perceive that you're substantially limited in a major life activity." It's pretty hard to prove. It was generally proved when, for example, you had a manufacturing environment, someone has a heart attack and they come back to work and the employers says, "We don't think we have anything here you can do." That's pretty indicative of [the idea]: "We think you're substantially limited in working."

And the other is what I call the manager [or] supervisor comment cases where a manager or supervisor would say something, would suggest that belief. Now, "perceived-as" is "I have an impairment, or my employer thinks I have an impairment, and I've suffered an adverse action." That alone will establish "perceived-as."

Q: Have you seen the laws change a lot?

A: Well, certainly the ADA has changed significantly with the passage of the ADA Amendments Act. Prior to the ADA Amendments Act, employers won probably 95 percent of ADA cases. And they won it on the issue of "You're not disabled." It is very difficult to establish disability, and, frequently, when someone established they were disabled, they also established they were not otherwise qualified.

So, it was a real problem for plaintiffs to get anywhere, and there was a lot of litigation on what's a disability and what's not, not so much on an employer's affirmative defenses, like business necessity and undue hardship.

Now it's hard to, in all honesty, advise on whether or not something's actually a disability. So, an employer is, to some extent, rolling the dice when somebody requests an accommodation, they're trying to determine is it a disability or not. Because almost every case, when they analyze it, starts with the [founding principle]: "Well, we should construe this term broadly."

Now it's the focus the EEOC wanted, and that's driving the analysis to reasonable accommodation.

Q: Can you talk about what's considered reasonable?

A: You have to accommodate an actual disability and potentially a record of the disability. You do not have to accommodate a perceived-as disability.

Basically, a reasonable accommodation is something that allows you to perform the essential functions of your job or to have the same benefits and privileges of your position. So an easy one is: "I'm in a wheelchair, there is a small cafeteria on site, and yet it's not accessible to me in my wheelchair. I can't get the door open." That's an easy fix.

Then there are things like a finite amount of unpaid leave, a reduced part-time schedule for a finite period of time. It could be that you put things to me in writing because I've got some mental impairment or learning impairment.

The easier thing is to say what's not a reasonable accommodation. It's not a reasonable accommodation to provide indefinite leave, eliminate an essential job function or be required to simply ignore misconduct, even if it's disability-related.

So, the alcoholic who says, "Yes, I know I was drunk at work, but you still can't fire me, you need to accommodate me and excuse it," you're not required to do that.

Once you hit on what's reasonable, the question is: Is it an undue hardship? It can be an undue hardship in a couple of different ways. One way is if it's a financial hardship. That's a pretty hard defense to prove unless you're a mom-and-pop employer with 15 employees. The other way is if it imposes a significant disruption to the business.

Q: What are some of the other challenges that employers might experience when complying with the ADA?

A: Let's just say you've got someone who has gone through their chemo treatment, but now they're suffering from chemo fog, which deals with somebody whose short-term memory is not good, [and] staying on task may be difficult.

There are a number of fact sheets, guidances the EOC puts out, [but] what do you do? That's a situation where it's a little bit difficult to figure out what the accommodation is. And sometimes you create [customized] tasks, and in some jobs it may work and in some jobs it may not.

So you have to look at a case [where] there's a gap between what their condition allows them to do and what the job is. What you have to do is figure out what's that bridge between those two things. Is there a bridge that would allow them to do that?

Q: Regarding compliance, would you say that HR professionals have similar challenges to employers, or would they have any unique challenges?

A: A lot of times HR people face a degree of resistance from the front-line supervisor or manager. So you have a business unit, and the business unit has their goals and that business manager has his responsibilities. People may not recognize the obligation that exists. And so it may just be that the business unit is thinking, "We can't do this," and HR is saying "Wait a minute, let's all sit down and talk about what we're doing here."

Now most companies are savvy, and still today, one of the biggest issues that comes up – and it's on the EEOC's strategic enforcement plan – is the issue of leave. So you get 12 weeks of FMLA leave, and that's job-protected and it doesn't matter what kind of undue hardship that leave imposes on the employer. Undue hardship is irrelevant for that 12 weeks of time.

The person exhausts their leave. You can't just say at that point, "Hey, you have to come back, or we'll let you go." Now you've crossed from "FMLA Land" to "ADA Land." The most frustrating part there is that undue hardship does matter, but there's not a finite period of time that's reasonable.

But there's a process, almost a flow chart in a sense, that you have to work your way through because one thing is a good-faith effort to accommodate a defense to compensatory and punitive damages under the ADA. So, even if you end up with a claim of failure to accommodate, it may be that you made this good-faith effort and you're at least cutting off some damages. And you should be making an effort to accommodate anyway.

Oh no…you received an EEOC charge in the mail

16 Sep

Employers must be ready to respond to EEOC charges by using payroll management software.

Companies both large and small have a special kind of anxiety when they receive a letter from the Equal Employment Opportunity Commission. Human resource information systems provide the first line of defense for organizations that want to proactively manage governmental investigations. Having an informed human resources department plays a huge role in making certain the company follows all regulations pertaining to hiring and employee policies that fall under the jurisdiction of the EEOC.

While unexpected and probably unwanted, an EEOC complaint may be a necessary event that ensures a company follows the rules that prevent discrimination and retaliation in the workplace. With that in mind, it's always important to be prepared in case the charge escalates into an actual lawsuit.

What should the employer do first? 
The initial response from a business owner should be to educate yourself about the charge. There are a number of violations, including discrimination based on age, disability, national origin, pregnancy, race, religion and gender. However, the EEOC treats businesses differently based on the number of employees they have on their payroll. For instance, Title VII of the Civil Rights Act, which protects against discrimination based on race, color, religion and a few other criteria, only applies to businesses with 15 or more employees, according to the human resources site The Human Equation.

Meanwhile, the Equal Pay Act of 1963 targets wage discrimination at organizations with at least one employee, which covers most companies. With this in mind, it's important for businesses of all sizes keep close records of payroll information. Employee payroll management software can help alleviate most issues that may arise in a few ways. First, it's far easier to perform self-audits that may highlight pay disparities ahead of time, which Forbes explained is one of the administrative tasks that the EEOC often requires. At the same time, software keeps all records up to date and immediately accessible in the event the EEOC asks for them. In combination with the software, Forbes suggested it's best to maintain legal counsel to bear witness to any audits.

To avoid setting off the EEOC's suspicions for other discriminatory practices, record-keeping is of paramount importance. Ensure hiring policies are not only publicly known to all applicants and new hires, but also retained in a central computer system. By taking action ahead of time by educating employees on EEOC regulations and putting necessary infrastructure in place, employers are in a far better position to respond when a charge comes in the mail.

What does the EEOC expect of the employer?
The following steps upon receipt of a charge are fairly straightforward. According to the EEOC, both the employer and the person pursuing the claim are obligated to provide information to support their cases. The EEOC will likely ask the business owner for a statement of position, which is a written document that explains his or her perspective with regard to the charge. According to Connections Magazine, it's critical that the employer fully understands the charge and the violation so he or she can effectively respond to it. At this point, legal counsel may be a necessary resource to ensure the company uses the correct language in the statement and clearly outlines their position on the matter.

The company may also be asked to supply copies of personnel files, policies and any other documents that could influence the investigation. Should the EEOC deem it necessary, the federal agency may conduct an on-site inspection, the magazine wrote. As a result, businesses should be prepared to field questions an investigator may ask in relation to the outstanding charge. Subsequently, it's often a waiting game as the EEOC judges the merits of filing a lawsuit based on its scrutiny of the complaint. The average inquiry will last more than 180 days, according to the EEOC.

What is the standard format that should be used to communicate with the EEOC?
The employer's primary responsibility is to provide all pertinent information to the investigator in the most efficient manner possible. While the federal government has made strides to make correspondence more convenient and speedier by using email and online portals, it's likely the company will be required to submit hard copies of all documentation. The EEOC provides employees interested in bringing charges against their employers with an online assessment system, but it still asks them to submit actual charges at the agency's field offices or through the mail. Employers should also expect to use direct mail and fax.

The mere fact that a company receives an EEOC charge doesn't indicate wrongdoing. It's truly a preliminary step to find out whether there are grounds for any future action. Still, employers need to take the appropriate steps, such as utilizing payroll management software, to ensure they can handle an investigation and cause the least disruption to their daily operations.

Why are there still so many huge employment law settlements?

15 Sep

Companies that comply with employment law regulations can avoid financial damages.

Employment lawsuit settlements can result in heavy financial penalties. Payments run the gamut between tens of thousands of dollars to upwards of $100 million. Each organization should realize effective human resources planning involves providing staff with access to employment law training. In doing so, businesses can avoid financially damaging lawsuits that can have a lasting impact on a company's viability.

The biggest payouts tend to grab the biggest headlines, especially when they involve household-name corporations. Still, there have been more than 10 employment law settlement lawsuits brought against various companies since August 28, 2014, raising a number of questions.

Haven't employers learned the rules yet?
For instance, the U.S. Equal Employment Opportunity Commission recently brought a lawsuit against a Popeye's Chicken franchise owner in Texas, JD Supra explained. The franchisee of the fried chicken chain consented to pay $25,000 for allegedly discriminating against an applicant on the basis of a disability. In this case, the job seeker was HIV-positive and explained his condition during an interview, after which he was told he couldn't be hired due to his medical situation. JD Supra explained the Food and Drug Administration doesn't list HIV as a restricted condition under its Food Code.

In another case, the EEOC brought a lawsuit against four farms in Hawaii owned by the California-based company Global Horizons on the grounds that they discriminated against 500 Thai workers. Retaliation charges were also raised. The $2.4-million settlement came about as result of several violations, including delayed payment for work performed, lack of food and water, and unsuitable living conditions.

Is lack of training to blame or lack of followup on the training?
Considering the heavy cost of violating labor laws, it would seem that most companies would go out of their way to ensure their staff, especially those in charge of hiring or dismissal, understand the rules. In the Popeye's Chicken case, for instance, EEOC trial attorney Joel Clark explained the Americans with Disabilities Act aims to prevent employers from making hasty decisions, especially when considering an applicant for a position. When companies unknowingly violate the law, the penalties are generally less harsh than those that actively ignore the rules, which is likely a contributing factor for why Global Horizons was forced to pay millions of dollars in fines.

In response to the ADA violation, Popeye's initiated training for all employees in a managerial position, including supervisors and human resources staff. Materials provided by the EEOC seek to give workers a deeper understanding of what's expected of them when they hire workers. Similarly, farm labor contractors at the Global Horizons facilities will have to communicate compliance policies to all staff, while corporate trainers will be responsible for educating on Title VII procedures.

From these cases, the problem seems to be a lack of preparation on the part of employers in providing their managers in charge of hiring and employee policies with requisite training. The Society of Human Resources Management also explained federal training isn't mandatory for all employers across the board, and some states have unique requirements that business owners need to understand. Most companies are required to post notices in public spaces that clearly state federal workplace policies, but it then becomes the employees' responsibility to understand their rights. At the same time, there are certain jobs in the public sector related to safety that demand Occupational Safety & Health Administration training. However, the rules aren't entirely uniform, leaving some employers at risk of violating them.

What's the trend now?
An infographic developed by the human resources news site HR.BLR.com explores the various priorities that businesses are focusing on to ensure their managerial staff are informed of compliance standards. The No. 1 topic is sexual harassment training, while discrimination education is second on employers' lists. The focus on these points aligns with many of the trends in EEOC lawsuits, which heavily reflect discrimination and harassment issues in the workplace.

Another way employers can prepare leaders to handle employment law regulations is through EEOC annual executive leadership conferences. While employees must pay for admittance to these meetings, they specifically address the requirements most companies have in keeping their senior-level staff up to date with compliance standards before a lawsuit occurs. The EEOC also provides free training sessions on a limited basis.

What should companies do about Affirmative Action plans?

11 Sep

Affirmative action plans can help companies address racial and gender disparities in the workplace.

In a variety of industries, human resources managers are responsible for developing a management tool to ensure they're meeting requirements for Affirmative Action plans. According to the Massachusetts Institute of Technology Human Resources website, the main reason that an employer establishes an affirmative action plan is to prevent discrimination on the grounds of gender, race and ethnicity in the workplace. Business owners often achieve this goal by using human resources solutions that allow them to run a detailed analysis of the talent pool and existing workforce to see if there's any discrepancy in proportions, which may reflect discriminatory hiring practices. 

Affirmative Action plans are comprised of detailed policies, practices and procedures that companies establish ahead of recruitment processes. In essence, these strategies are designed to give all applicants an equal opportunity to access employment, as well as provide uniform payment regardless of race and gender.

However, there are those who would argue the U.S. has entered a post-racial era in which bias and prejudice don't play as much of a role in workplace decisions as in previous decades.

Are they still needed?
Much has changed since the concept of affirmative action first entered the national lexicon. The Heritage Foundation wrote that former President John F. Kennedy was the first to use the phrase in 1961 as he explained the reach Executive Order 10925 would have on the American workforce. The idea bled into the threads of the civil rights movements during the early '60s, culminating with the 1964 Civil Rights Act. This piece of legislation made discriminatory practices in the workplace illegal.

As of 2011, African American employees made up roughly 11.6 percent of the total labor force, which includes individuals employed or seeking work, the U.S. Department of Labor wrote. This figure reflects a gradual increase in representation of African Americans in the U.S. workforce, up from 10.9 percent in 1991.

On the other hand, unemployment rates among African Americans is significantly higher compared to their white counterparts. Respectively, the difference was 15.8 percent and 7.9 percent in 2011. Meanwhile, Hispanic Americans hovered in the middle with an 11.5 percent jobless rate.

At the same time, the recent unrest in Ferguson, Missouri over the shooting of unarmed teenager Michael Brown by a member of the police department called attention to the realities in many workplaces. The Ferguson Police Department is comprised of mainly white officers, while the town has a large African American community. According to HR Unlimited Inc., the police department is 0.6 percent African American, which signals a need for affirmative action planning. However, the Ferguson case isn't necessarily reflective of all workplaces, and each employer must look at diversity statistics to get a fuller understanding of whether an affirmative action plan is required.

Are they effective?
Using the example of police departments, HR Unlimited Inc. cited the fact that organizations with affirmative action plans have been able to foster more representative payrolls. Between 1983 and 1992, those with a plan in place see minority officers composing upwards of 20 percent of officers in local departments.

In addition, Forbes highlighted the fact that the gender pay gap is beginning to shrink. Citing a PayScale study, there's less than a 2 percent disparity in pay among male and female millennial workers, which is one of the largest generations to enter the labor market. Both men and women exhibit a lack of enthusiasm for how much they're getting paid, according to a 2013 Gallup poll. Just 24 percent of women and 32 percent of men are satisfied by their paychecks, leaving the majority of employees unhappy with their current remuneration.

Equal payment is just one aspect of affirmative action plans, but it can play a significant role in job satisfaction and the perception of fair treatment. When individuals performing the same work are compensated differently, staff may begin to question hiring practices, especially among people of different genders or ethnic backgrounds. Still, there's no guarantee an affirmative action plan will work as intended.

Can they have a negative impact on workers?
While affirmative action plans aim to level the playing field among applicants and employees, not everyone will look at them the same way. In fact, human resources news source theHRDIRECTOR explained employees who were viewed as beneficiaries of the action plans were stigmatized as less fit for the job. They can also be seen more as competition than as colleagues, resulting in lower performance scores on employee peer evaluations. What's more, other members of the workforce may believe a minority worker was hired solely on the basis of the company meeting a quota for diversity.

Any effective affirmative action plan must take stereotypes and stigmas into consideration when it's implemented. Human resources managers must take employee engagement seriously when new hires are brought on board as a result of an action plan. While businesses have made progress toward equal opportunity, disparities still exist that may raise the need for an affirmative action policy.

What does workplace diversity look like?

10 Sep

Human resources managers can build employee engagement with better diversity planning.

Human resources professionals are at the forefront of employee management, acting as the gatekeepers in creating a high-impact and effective workforce. However, many organizations are still grappling with the role diversity plays in developing the strongest talent pool possible. One of the main issues facing HR is specifically defining diversity and accurately measuring it. At the same time, companies still struggle with implementing policies that allow for a wider range of ethnicities, races and gender distribution in the workplace.

What does diversity mean?
Traditionally, diversity has been recognized as the way a firm includes and engages workers from various cultural and ethnic backgrounds, as well as maintaining a fairly even balance of male and female employees. However, in a recent post for the SAP blog, contributor Susan Galer cited research from The Economist Intelligence Unit that may expand the very idea of diversity.

According to the report, a greater number of companies look at the role employee values play in changing the workplace dynamic. Much of the focus is on the idea of a multigenerational workforce in which it's difficult to discern whether younger employees feel they're part of the organization. In effect, HR professionals and management now have the task of evaluating workers based on their level of assimilation into a company's culture and understanding motivated them to join an enterprise in the first place.

Some of the biggest challenges lying in wait for HR managers stem from this idea. According to the EIU study, 60 percent of human resources executives highlight a demonstrable lack of interest in adhering to organizational values as a major characteristic in today's workplace. At the same time, more than 50 percent of these respondents said value-based conflicts among employees from different generations is a hurdle that needs to be overcome.

Exigent challenges
Meanwhile, there are residual issues resulting from traditional diversity initiatives that human resources professionals need to address to ensure stronger employee engagement. Fortune Magazine recently wrote that workers who were perceived to be hired specifically for diversity purposes are seen as less qualified for their positions.

"The Academy of Management Journal" recently released research which found this stigma to be present in more companies than many would assume. David Mayer, who teaches management at the University of Michigan's Ross School of Business and is one of the authors of the study, explained this issue has a fairly easy solution. One idea involves being overt in explaining to coworkers that a minority employee was hired in purview of his or her qualifications, experiences and education. Mayer explained this information can be delivered in the form of an internal email sent out to various departments. If a company has an enterprise social network, it can easily and quickly introduce new hires – regardless of their age, gender and race – so that existing members of the organization know who's coming on board.

Harvard Business Review echoed this sentiment, explaining that diversity initiatives don't always go far enough. Human resources managers should work to foster inclusion among workers from different backgrounds. A few strategies to reach this goal is to make sure minority employees are part of discussions related to their duties and roles within the organization. Also, ensure everyone has equal access to training and development opportunities so that all employees can expand their skill sets, and workers have more chances to interact with each other.

Globalization has made it possible for businesses to attract and recruit workers from a diverse array of cultures and backgrounds, but it requires significant effort to make certain all employees function as team members.

What should HR say about surgical second opinions?

9 Sep

Human resources management professionals need to take mandatory surgical second opinions into account.

The debate around mandatory second surgical opinions is far from a new one. While information about the use of second opinions is important in the medical field, it's also a discussion that many professionals involved in human resources solutions must have with employees when they're making the decision to go through with a surgical procedure.

How did the conversation begin?
Original legislation dates back to the mid 1970s, a RAND Corporation report explained, and it sought to reduce healthcare costs. In effect, the bill asked employees to seek out a second opinion if they were planning to undergo any kind of surgery. The RAND report looked at both Medicaid and non-Medicaid MSSOP, especially in Massachusetts. Those with Medicaid coverage were the least impacted by secondary surgical opinions, but the indirect influence on surgery rates showed a decline in procedures performed.

What are the issues today?
According to the Society of Human Resource Management, companies have explored various avenues when trying to reduce costs for employees and the organization as a result. Some have even gone to the lengths of making a secondary surgical opinion required. Bill Carew, managing principal with Hartford, Connecticut-based Digital Benefit Advisors, told SHRM that the current healthcare environment errs on the side of strongly suggesting second opinions instead of outright mandates. Still, the focus is to provide employees with the most accurate information that they can use to make informed decisions about their personal well-being. 

Gary Young, director of the Northeastern University Center for Health Policy and Healthcare Research in Boston, Massachusetts, went on to explain that research involving MSSOP doesn't demonstrate a clear path forward exactly. The underlying trend is that second opinions often reinforce the original finding, suggesting a second opinion may not make that much of a difference. SHRM also raised the question of what happens when another voice in the conversation recommends a more expensive procedure. It's not always guaranteed that doctors' advice will result in lower costs for the employee.

What should HR keep in mind?
Ultimately, the decision human resources professionals make regarding surgical second opinions must fit the company's needs and preferences, as well as those of the employees. Members of the workforce have a choice in deciding which healthcare providers to visit, but every plan will likely include a specified list of preferred medical professionals. As HR workers guide employees to make educated choices, it's also important to maintain compliance with the most recent changes in the Patient Protection and Affordable Care Act.

Switch to our mobile site