The Legal Environment of Human Resources Management Chapter 5 The Legal Environment of Human Resources Management

Learning Objectives Understand the impact of legal considerations on key human resources management activities and functions Define employment at will and its public policy exceptions Enumerate the major pieces of federal equal employment opportunity legislation Explain the rational for government intervention in the workplace to prevent discrimination Describe the strategies that organizations use to prevent and identify discrimination in the workplace Understand the concepts of disparate impact and disparate treatment and the types of evidence to demonstrate each form of discrimination Discuss key features of the ADA, including the concept of undue hardship and reasonable accommodation Describe the complexities of equal employment opportunity complaint process

Learning Objectives Cont. Describe the complexities of equal employment opportunity complaint process Discuss the Uniformed Services Employment and Reemployment Right Act Understand that sexual harassment is a form of employment discrimination Address employee rights and responsibilities and distinguish among statutory, regulatory and common law rights Describe recent developments in the area of federal anti-retaliation law List employee privacy issues, including HIPAA Recognize the legal backdrop for a variety of healthcare specific employee rights and responsibilities issues Discuss the contractual implication of employee handbooks, employment agreements, personnel manuals, separation agreements and disciplinary documents Define the concepts of dismissal for cause and due process Explain the concepts of progressive discipline and know the steps required for employee termination Enumerate the types of role and ADR methods in the workplace

Employment Laws Consolidated Omnibus Budget Reconciliation Act (COBRA) Consumer Credit Protection Act Drug Free Workplace Act of 1988 Employee Polygraph Protection Act of 1988 Employee Retirement and Income Security Act of 1974 (ERISA) Equal Pay Act of 1963 Executive Order 11246 and Executive Order 11375 Consolidated Omnibus Budget Reconciliation Act (COBRA) Give employee the right to choose to continue to receive their health benefits for a period of time after leaving a job Consumer Credit Protection Act Prohibits and employer from discharging an employee because their wages are being garnished and limits the amount that can be garnished Drug Free Workplace Act of 1988 Requires that all organizations that receive federal grants in any amount or contracts in the amount of $25,000 or more must certify that they are providing a drug free workplace. Employee Polygraph Protection Act of 1988 Generally prohibits employers from using a polygraph test in pre-employment screening or during employment. There are several exceptions Employee Retirement and Income Security Act of 1974 (ERISA) Regulates private pension plans and sets minimum standards for most voluntary established pension and health plans. Equal Pay Act of 1963 Requires employers to pay employee equal pay for equal work, regardless of gender. Jobs are considered equal if they involve equal levels of skill, effort, and responsibility and if performed under similar conditions. Executive Order 11246 and Executive Order 11375 Prohibits discrimination on the basis of race, color, religion, and national origin in federal employment and in employment by federal contractors Continue……

Employment Laws Cont.. Family Medical Leave Act (FMLA) Genetic Information Nondiscrimination Act of 2007 Immigration Reform and Control Act of 1986 Occupational Safety and Health Administration (OSHA) Uniformed Services Employment and Reemployment Rights Act of 1994 Workers Adjustment and Retraining Notification Rights Act (WARN) Family Medical Leave Act (FMLA) Requires employers to provide 12 weeks of unpaid leave for family and medical emergencies Genetic Information Nondiscrimination Act of 2007 Prevents and employer from using genetic information in its decision to fire, fire or promote Immigration Reform and Control Act of 1986 Intended to control unauthorized immigration in to the US and designates penalties for employers who hire people not authorized to work. Occupational Safety and Health Administration (OSHA) Is used to set standards and conduct inspections to ensure employers are providing safe and healthful workplaces. Uniformed Services Employment and Reemployment Rights Act of 1994 Requires that, in most cases, employers are required to re-employ workers who are returning from active medical leave. Workers Adjustment and Retraining Notification Rights Act (WARN) Requires employers gives 60 notice of plant closing or major layoff.

Employment Discrimintation Employment at will Illegal Discrimination Will Market Forces Correct this? Statistical Discrimination Employment at will Assumes that both employee and employer have a right to sever the work relationship at any time without notice, for any reason, no reason or even a bad or immoral reason Illegal Discrimination Discrimination against a particular individual or group of individuals based on non-job related characteristics such as race, ethnicity, age, gender, sexual orientation or disability. Will Market Forces Correct this? – Some economist believe that companies that hire solely on skill will perform better then those discriminate. Statistical Discrimination When an employer makes a calculated decision about a particular individual based on ones perception of a larger group.

Employment Discrimintation Discrimination can occur if the following tools are applied inconsistently Detailed application form Interview Honesty Test Handwriting analysis Drug screening Criminal background check Credit report check Reference check Motor vehicle record check Educational records check Personality tests

Equal Employment Opportunity Legislation Equal Employment Opportunity (EEO) 14th Amendment Fair Labor Standards Act The Equal Pay Act of 1963 Comparable Worth Equal Employment Opportunity (EEO) Refers to the government attempt to ensure that all individual have an equal chance for employment regardless of race, age, religion, disability and other non-job related characteristics. 14th Amendment This prevents the denial of equal protection of the laws. Used primarily in case of reverse discrimination. Fair Labor Standards Act The major provision concern minimum wage, overtime pay, child labor and equal pay. Forbids the employment of individuals under 18 in hazardous occupations (mining, logging) Places restriction on teenagers ability to work The Equal Pay Act of 1963 It was originally thought that men needed to make more money because they supported a household Prevents discrepancies in pay only if based on gender. If pay is different for another reason it is ok Still not equal – In 2006 women earned about 76.9 on the dollar of what men made Comparable Worth –calls for equal pay for jobs that require similar skills, effort and responsibility This is a good concept for healthcare. If nurses (mostly female) were only compared to other nurses it would be difficult to remedy g ender based discrepancies!!

Equal Employment Opportunity Legislation Title VII of the Civil Rights Act of 1964 Damages The Age Discrimination in Employment Act (ADEA) The Older Workers Benefit Protection Act (OWBPA) The ADA Reasonable Accommodation Title VII of the Civil Rights Act of 1964 Bars discrimination in hiring, promotion, compensation, training, benefits and other aspects. Discrimination is specifically prohibited on the basis of race, color religion, gender and national origin. Applies to employers involved with interstate commerce with 15 or more employees. Does not prohibit discrimination based on sexual orientation. But several state laws due. Damages – Allows for compensatory and punitive damages The Older Workers Benefit Protection Act (OWBPA) Protects employee when they sign liability waivers for age discrimination as part of a severance package. Requires the waiver must be in writing, specifically refer to the ADEA rights or claims, may not waive rights or claims that may arise in the future, must offer the employee value beyond that which the employee would have received without the package, must advise in writing to consult an attorney, must provide 21 days to sign and 7 days to revoke after signing. The ADA Prohibits discrimination against persons with disabilities Does not require employers to hire someone with a disability who is not otherwise qualified for the job Requires employers to make a reasonable accommodation Required unless this will cause an undue hardship for the employer This rule is ambiguous No strict rule but typically the cost of the accommodation is compared to the overall operating budget Sears study = 69% of accommodations cost nothing, 28% cost less then $1000, 3% more then $1000

Implementing the EEO Principles Affirmative Action Interview Questions Screening Selection Disparate Impact Disparate Treatment Defenses Defenses Against Discrimination Affirmative Action Applies to Federal contractors and subcontractors Must take affirmative action to ensure that all individuals have an equal opportunity for employment Plans are not a quota system. Instead must work towards greater inclusion Interview Questions If a interview question can only be asked of certain applicants then it should not be asked Screening Screening is a necessary step to limit employer liability and prevent employee discipline Must be applied consistently to avoid an adverse impact on a protected class Selection See the Uniform Guidelines on Employee Selection Procedures. (www.uniformguidlines.com) Selection requirements must be job related and positively associated with job success Disparate Impact - Discrimination does not have to be intentional to be illegal Disparate Treatment – Does required intent to discriminate Defenses – Other person hired had better qualifications. Or, the protected class characteristic (ie: gender) was a bona fide occupational qualification (BFOQ) Defenses Against Discrimination 1 – Educate employees 2 – Create standard policies 3 – Publicize desired employee conduct

Implementing the EEO Principles Sexual Harassment Quid Pro Qua Hostile Environment Employer Liability Sexual Harassment Governed by Title VII of the Civil Rights Act Quid Pro Quo When a job related benefit is contingent upon submission to sexual advances Hostile Work Environment May include posting of sexually explicit pictures, using sexually laden jokes and sexually explicit language Employer Liability Must have taken “tangible employment action” If no tangible action occurred employer can defend: a. that the employer exercises reasonable care to prevent and correct promptly any sexually harassing behavior and b. that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer The plaintiff must not have invited the sexual advances or sexual advances must be unwelcome The harassment must have been severe enough to alter the terms of employment Courts will look to the employer to see if they knew about the harassment and if they did anything about it Nearly ¾ of women in the healthcare setting have been sexually harassed Foutune© 500 companies spend an average of 1.6 Million each year to manage sexual harassment claims

Implementing the EEO Principles Retaliatory Discharge Workplace Searches Electronic Monitoring Employee Polygraph Protection Act (EPPA) Drug Testing HIPAA Compliance Retaliatory Discharge Occurs when an employer takes any materially adverse action that is likely to deter an employee form asserting a claim Several federal statutes prohibit this action Workplace Searches Employers have an interest in monitoring employees for theft and attendance Employees have limited privacy rights against search of a desk, office or work area Electronic Monitoring Employers use monitoring in the workplace to investigate organizational problems (IE productivity) EPPA – provides guidelines for the use of polygraph test. Exemption apply to many in the healthcare field who manage controlled substances Drug Testing Healthcare organization have a desire to test workers due to the existence of controlled substances in the workplace Several states have adopted laws that outline the administration of drug tests HIPAA Compliance Employers who provide self-insured health coverage for employees are subject to these rules in relation to their employees.

Employment at Will and Its Exceptions May terminate the employment relationship for any non-illegal reason Can not terminate for the following Refusing to commit perjury Employees reporting of safety violation Whistleblower Protection It is illegal for an employer to retaliate or mistreat an employee for whist blowing

Employment at Will and Its Exceptions Personnel Policies Policies, documents, disciplinary write-up may inadvertently imply a promise of continued employment Employment Agreements May erode the at will status through contract law

Termination Procedures Documentation of the events leading to the termination are important Employees have a right to receive ample notice and explanation of the employers dissatisfaction Documentation is used to demonstrate fair treatment

Termination Procedures Separation Agreements Releases of legal claims Employee promises not to sue

Grievance Procedures EEO Complaint Process Public Employees’ Right to Due Process ADR EEO Complaint Process Employees must first file with the EEOC Three phases: counseling, formal complaint and appeal If EEOC finds no cause employee can still file lawsuit in court Public Employees’ Right to Due Process Employment at will does not apply to public employees Can not be fired without good reason Must have notice and a hearing ADR Some employers require ADR ADR does not prevent an EEOC process Do not apply to unemployment or workers comp claims