How should employers handle harassment investigations in the workplace?

3 Oct

Harassment investigations should be handled quickly and thoroughly.

Employers have a high degree of responsibility to both prevent and respond to harassment investigations. If it's not already, it should be high on the list of priorities for employee management.

There are guidelines the Equal Employment Opportunity Commission has established, and employers are expected to follow them. In reality, a harassment investigation should be addressed proactively by providing all personnel with clear indication of what is and isn't appropriate behavior at the workplace.

However, employees don't always follow the rules as intended, or there may be misinterpretations that ultimately lead to a complaint. In this case, employers should have an effective strategy in place to ensure investigations run as smoothly as possible.

Begin immediately
There's no reason to wait before conducting a harassment investigation. Supervisors, provided they're not the subject of the complaint, should notify the human resources manager as soon as possible. Since HR is usually the intermediary in these cases, the department should identify an internal investigator who can act impartially on behalf of both the claimant and the individual charged with the indiscretion, according to the American Bar Association. This person should also have a clean record and full knowledge of the company's harassment policies, as well as EEOC guidelines.

Get written documentation
According to HR Hero, it's important to ensure the investigator keeps track of all statements and reports and maintains them in case the situation escalates and moves to trial. All documentation should be verified and signed by the witnesses in the investigation. This will lend credibility to the investigation and better protect against subjectivity. At the same time, clearly document that the claimant, the individual charged with harassment and witnesses won't face any kind of retaliation.

Interview both parties
The American Bar Association suggested the investigator begins by speaking with the alleged victim. Establish a clear background by asking the five primary questions: who, what, when, where and how. It's also a good idea to maintain anonymity of both parties. The alleged harasser should be given the chance to explain the circumstance from his or her perspective as well. In the case that an employee brings a charge against a superior, it's advisable to send him or her home until the investigation culminates.

React quickly
Once the investigation concludes, make an expeditious, but accurate judgment based on the events, witness testimonies and interviews. Don't belabor the process because it may end up damaging relationships to a greater degree.

An effective anti-harassment policy should be the first step in eliminating this issue in the workplace. However, employers need to take the proper steps to enable both fair and decisive investigations.

What impact will the OFCCP’s proposed rule on wage data collection have?

2 Oct

The OFCCP is asking government contractors to supply wage data.

The Office of Federal Contract Compliance Programs may not be a household name, but it assumes an important role for those who do business with the federal government.

Out of the ashes of the Employment Standards Administration came the OFCCP, as well as three other independent entities that report to the Secretary of Labor. In 2009, the agency assumed responsibility for enforcing contractual agreements relating to affirmative action and equal opportunity among federal contractors.

Specifically, the OFCCP provides guidance to businesses working with the federal government to understand regulations and perform compliance evaluations and investigations to ensure contractors are complying with government policies.

However, recent proposed changes to OFCCP guidelines will likely have a significant impact on human resource planning and will require federal contractors to adjust their internal processes to comply with the new rules.

What's expected under the new Equal Pay Report requirement?
The Department of Labor's recent proposal will likely change the way many federal contractors and subcontractors operate to some extent. It requires them to submit compensation-related information to the OFCCP. However, the proposal doesn't impact everyone, Inside Counsel explained. The change would affect federal contractors and subcontractors that:

  • File Employer Information report EEO-1
  • Have more than 100 employees
  • Are under contract with the government for at least $50,000
  • Have held the contract for a duration lasting more than 30 days

The OFCCP asks for companies that meet these requirements to supply an Equal Pay Report containing three specific pieces of information. First, contractors and subcontractors need to provide the total number of employees who fall under EEO-1 job categories by race, ethnicity and sex. Second, employers need to supply total W-2 wages following the same EEO-1 standards. Finally, companies have to supply the total number of hours worked for these employees.

What are EEO-1 job categories? The Equal Employment Opportunity Commission developed a very thorough list of these job groups. While there are nine distinct categories, each one has an extensive listing of defined roles that qualify. Included in the classifications are officials and managers, professionals, technicians, sales, office and clerical, craft workers, operatives, laborers and service. For further clarification, it's worth the time to look at the more specific job titles.

What's the logic behind the proposal?
According to the OFCCP, the agency will use the data for enforcement purposes. In essence, the information will provide evidence and support for allegations of pay violations and other noncompliance issues.

It's also using the opportunity to develop public reports – keeping employees' personal data confidential – that will summarize aggregate data for each industry in hopes of clarifying any pay gaps based on race and gender. From these reports, employers can review the broad metrics and proactively address any disparities in their own organizations.

What if the data gets into the wrong hands?
One of the biggest question marks for the proposed rule change is how the information will be transmitted between contractors and the OFCCP. The agency is hoping to leverage many of the existing electronic submission processes in place. For instance, human resource software that keeps track of payroll records and W-2 earnings. The OFCCP also indicated it will develop a Web portal that employers can use to communicate with the agency.

However, data security is a high priority. Contractors and subcontractors are often competitive when seeking out agreements with the government. According to the DOL, all information will be kept private to the extent that it can under the Freedom of Information Act. In addition, the OFCCP said it wouldn't publicly release any information that may have negative influence on contractors that are currently active. This could be a big factor for many employers. What happens when a competitor submits a FOIA request about pay and gender disparities? If made public, this information can do a lot of damage.

As with many government projects, details will likely emerge as time passes. However, data security will likely be a key factor for many companies looking to do business with the federal government. Given the rise in cybercrime, it remains to be seen whether or not the government agencies can keep information transmitted over the Internet secure.

How should job seekers use social media to find a job and connect with a prospective employer?

1 Oct

Social networks have become a frequent go-to resource for recruiters.

Where do most job seekers begin their search for jobs? Job boards? Aggregators like Indeed? Ratings sites, such as Glassdoor? In most cases, applicants have ditched the daily newspaper's want-ads section for the far more efficient and wide ranging appeal of the Internet. However, that leaves a wide variety of options open for today's job seeker.

There's a trend that's gaining momentum that may influence employee engagement ideas. Social media has rapidly evolved from a space where friends and family connect over various geographies into an all out digital networking environment. This extends far beyond LinkedIn, although that particular social site remains the forerunner in the world of online job seeking and recruiting. In fact, employers have taken to social media profiles to gain insight into the backgrounds, interests, activities and personalities of job seekers at rapid pace.

U.S. News & World Report cited the Society for Human Resources Management 2013 report, "Social Networking Websites and Recruiting Selection," that found more than three-quarters of employers have used social media as a resource for recruiting strategies. What's more, nearly 7 in 10 use these sites to specifically target applicants based on the need for unique skills. The vast majority also use social networks as a means to strengthen their brand awareness and give job seekers a fairly direct channel to connect and contact their organization.

What are the leading social media sites?
LinkedIn is the preferred choice among employers, with 92 percent using the site. The second most popular network is Facebook, while Twitter and Google round out the top four sites.

However, this doesn't mean that a job seeker should stick with LinkedIn alone. In many ways, social networking sites are a way for applicants to build their online presence. Accordingly, they need to keep in mind how they present themselves online because the content posted on sites like Facebook and Instagram coalesce to give an employer a holistic perception. It's the responsibility of the job seeker to ensure their online "brand" is consistent across the various platforms.

Yet, one of the main draws of social networks is the fact that they level the playing field to some extent. Job seekers have a unique chance to connect with specific companies, discuss topics with industry leaders that they admire and take the initiative in reaching out to a company to build a relationship. In doing so, they have the chance to proactively initiate the recruitment process.

What is the correct protocol?
Is there social media etiquette? In a sense, each social network provides a fairly distinct way to engage prospective employers, but job seekers can begin with small steps. One of the simplest ways they can ease their way into engaging a company that interests them is to follow it. While somewhat passive, this move signals to the organization that the person has an expressed interest in what it does or the brand in general.

Another key element that many job seekers forget to address is social profile cleansing. A recent article for The New York Times tech blog went into detail about the cottage industry of profile "sweeping" service providers. Many are startups that have devised various ways to scrutinize and wipe clean Facebook and Twitter profiles that may include content that will raise the eyebrows of a recruiter. Some providers can even identify photos that may send up red flags. Without resorting to hiring a social network maid service, job seekers can take it upon themselves to be judicious in what they post as public and private on the various networks.

Get involved

From this point, the job seeker can take a more active role by liking specific pieces of content the company posts and then joining the conversation using the comments box. Linda Descano, president and CEO of Citi's Women & Co., told Fox Business that this approach helps job seekers make a positive first impression. It also shows the person is engrossed in a particular aspect of the company.

Specifically looking at the possibilities of LinkedIn, there are additional steps that job seekers can take to increase their visibility in employers' eyes. The Muse explained it's important to stay active on the platform. For example, instead of following what others in a relevant industry have written or posted, a job seeker can take the initiative and write his or her own articles. Coherent, relevant content can draw the attention of an employer looking for an individual who is not only up-to-date on industry events, but also addressing them with original ideas.

Choose networks wisely
Depending on a job seeker's skills or interests, different networks have unique strengths. For example, Pinterest is a great site to post visual content that a job seeker created. Mashable highlighted the fact that this particular platform allows people to be creative in the ways they present their resume. Although it's easy to upload the document to the Pinterest board, it's a better idea to connect various aspects of a work history or professional experiences to relevant pictures and other content.

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 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 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.

Switch to our mobile site