The latest installment of Carnival of HR is hosted by HRO Manager, a blog dedicated to human resources outsourcing information and comment. There are several interesting posts including one by HR Wench lamenting about the lack of support for HR professionals in a post entitled “There is No HR for HR.” Along similar lines, Debra Owen of 8 hours and a lunch posts on “how sensitive should HR be?”
Many managers view the efforts of HR to bring order to the hiring process as meddlesome, bureaucratic and dilatory. “Just find me someone to fill this position” is the usual approach. There are several things that an HR generalist can bring to the table in terms of education and organization without slowing the process:
Uniformity of Process: Companies should develop an interview process and follow it. Haphazard hiring practices are difficult to defend from discrimination claims. Every interview process includes the following actions:
Documentation: In response to any government investigation or as part of discovery in litigation, an employer will be required to turn over its written documentation of the hiring and interview process. To the extent possible, I recommend controlling the documentation that is created so that there are no smoking guns. Many legitimate hiring selections are called into question because of things that are written by interviewers in the margins of resumes. Try to review the interview forms for inappropriate comments and send them back for revision, if necessary. Furthermore, an “institutional memory” is created by written documentation that survives the departure of interviewers and other personnel.
Prohibited Questions: Many state anti-discrimination laws and regulations prohibit certain types of employment inquiries. For example, the Pennsylvania Human Relations Act (43 P.S. Section 955 (b) (1)) prohibits employers from eliciting information or using any form of application that contains questions or entries concerning race, color, religious creed, ancestry, age, sex, national origin, past handicap or disability. Federal law prohibits asking for disability information except as part of a voluntary questionnaire under an affirmative action plan for the purpose of applicant tracking. Otherwise, it is unlawful to discriminate and ask for medical information prior to an offer of employment under federal law. There is not an absolute prohibition on soliciting other protected class information, but it should be done only as to a bona fide occupational qualification.
Applicant Communication: Many organizations take a minimalist approach to communications with applicants foregoing acknowledgment of applications and rejection letters. While this correspondence may seem like a recruiting nicety, it serves a legal purpose by defining the applicant pool for a particular position. If the parameters of consideration are not defined, enforcement agencies will look to all applicants to analyze discrimination claims. At a minimum an employer should identify who was considered for a position and how long an individual’s application will remain active for future consideration. This exercise is very important for government contractors that may face OFCCP audits; particularly in light of the agency’s definition of “internet applicant”.
Training: Very few managers and supervisors are good interviewers. Asking irrelevant questions, seeking unlawful information, or alienating good prospects are only some of the problems. Without training, many managers do not obtain enough information to critically evaluate the abilities of the applicants they have interviewed. Training on the interview process and techniques might prove invaluable to reducing turnover created by poor hiring decisions.
*Not meant to be an exhaustive list.
The average corporate health benefit expenditure in 2008 will be $9,312 per employee—an increase of 7 percent over 2007—with annual per-employee contributions exceeding $2,000, according to Towers Perrin's 2008 Health Care Cost Survey. Some highlights of the survey are as follows:
The Towers Perrin Survey also tracks the cost variations across “High-Performing” and “Low-Performing” Companies noting a cost disparity per employee per year of $8,844 and $10,320 which is explained as follows:
According to the Towers Perrin data, these [high-performing] companies have clear strategies in place to drive improvements in employees’ overall health and wellness, engagement in health care decisions and health-related behaviors, as well as to identify problems early and take advantage of opportunities for improvement by understanding the current state of their benefit program and the health care system overall.
To the extent that high performance is enhanced by plan design, I am seeing a strong trend to High Deductible Health Plans coupled with either Health Savings Accounts, Medical Savings Accounts or Health Reimbursement Arrangements. The pros and cons of some of these arrangements have been discussed previously in Problems with Health Savings Accounts (HSA).
There is also a clear trend among employers to adopt wellness programs with financial incentives for behavior changes. Some of the issue surrounding wellness programs have been discussed in Wellness Programs Must Comply with HIPAA Restriction;Successful Wellness Programs Implemented by D&E Communications; Sizing Up Obesity: Can Wellness Programs Curb BMI?
On October 16, 2007, Kathleen Casey-Kirschling, a former teacher from New Jersey, applied for benefits over the Internet becoming the nation’s first baby boomer to make a claim for Social Security. The Chicago Sun-Times reports that Casey-Kirschling was born one second after midnight on January 1, 1946, making her the first baby boomer -- a generation of nearly 80 million born from 1946 to 1964.
The social, economic, and political implications of this “demographic tsunami” will have dramatic impact on employers through worker shortages and increased government spending. Tony Allison has a great summary of these issues in his article The Boomer are Coming, The Boomers are Coming- Demographic Tsunami is at the Gate, where he comments on impact of government spending and Medicare costs.
From a legal perspective, the greatest impact on employers of baby boomer retirements may be on employee benefit plans. I would expect that government efforts to cover the sky rocketing expenses of the Medicare Program and Social Security will result in increased cost shifting to already strained employer health and retirement plans.
Cost shifting mechanisms already exist from Medicare to employer sponsored health plans in the form of Medicare’s Secondary Payer Rules (MSP). MSP rules act as coordination of benefit provisions shift first payer status to medical plans, auto insurance policies and worker’s compensation insurance coverage. It is likely that these types of coordination of benefit approaches may increase. For example, H.R. 2549 would extend Medicare Secondary Payer to recover Medicare payments from workers' compensation settlements.
The Medicare Secondary Payer Rules apply when an employee or an employee’s spouse is covered by or entitled to Medicare and the group health plans of employers with 20 or more employees as more fully described in extensive regulations. However, there is an excellent booklet entitled Medicare and Other Health Benefits: Your Guide to Who Pays First which describes the various scenarios that can arise. The biggest issues for employers arise from two areas. First, an employer/insurer may not discriminate in terms of coverage or charge more for individuals who are covered or entitled to coverage under Medicare. Second, Employers and insurers are prohibited from offering a financial incentive not to enroll or to terminate enrollment in a group health plan so as to make Medicare a primary payer.
Employers will need to be increasingly cautious in plan design to anticipate the impact of future government efforts to shift the cost of medical and retirement benefits to private employers.
Daniel Schwartz of the Connecticut Employment Law Blog reports that New Employment Verification Rules on Indefinite Hold After Court Ruling. The decision bars the Social Security Administration from sending out an estimated 114,000 no-match letters covering some 8 million employees. The primary basis for the judge’s opinion seems to be the likelihood that legally authorized workers might be fired because of their inability to resolve the discrepancies giving rise to the no-match notification. As the NY Times notes, government audits found significant problems with the data base:
In a December 2006 report cited in the court documents, the inspector general of the Social Security Administration estimated that 17.8 million of the agency’s 435 million individual records contained discrepancies that could result in a no-match letter being sent to a legally authorized worker. Of those records with errors, 12.7 million belonged to native-born Americans, the report found.
We have previously posted on the no match and other immigration issues as follows:
Four Reasons to take a "Wait and See" approach to using E-Verify
No-Match Letters Place Undue Burden on Employers
When is a "Safe Harbor" not so Safe: New Immigration Regulations for No-Match Letters
Reconciling Hazelton's Illegal Immigrant Ordinance and the Nation's Predicted Worker Shortage
The National Labor Relations Act (NLRA) is notoriously complex and there are numerous exceptions to almost every rule. As an HR Generalist in a nonunion company, the following are five areas where questions frequently arise and you may be called upon to know your way around the issue on the spot:
1) Section 7 Rights: Nonunion employees may be protected from discipline or discharge by the NLRA. Section 7 of the NLRA gives all employees (union and nonunion) the right to engage in protected concerted activities which are usually group activities (two or more employees acting together) attempting to improve working conditions, such as wages and benefits. Employers may not interfere with, restrain, or coerce employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective-bargaining purposes, or engaging in protected concerted activities, or refraining from any such activity. An employee is engaging in section 7 activity when he or she complains about wages, hours or working conditions on behalf of himself and other employees, and may not be disciplined or discharged for these actions. Likewise, nonunion employees who engage in a work stoppage (strike) as a form of protest may not be fired for doing so. However, partial strikes, sit ins and work slow downs are generally not protected.
2) Employer’s Private Property Rights: Unions and non-employee union organizers may not enter onto an employer’s private property to picket or leaflet. Employees may distribute literature and solicit on an employers private property during non-work time and in non-work areas.
3) Handbook Nonsolicitation Clauses: An employer may adopt a policy prohibiting solicitation and distribution of literature during working time and in work areas so long as the rule is (a) unambiguous with regard to the definitions of work time and work areas, (b) promulgated in advance of organizing activities, (c) not applied for the first time to known union adherent, and (d) uniformly applied to union and nonunion solicitations. The NLRB is currently considering the scope of the application of Nonsolicitation policies to an employer’s e-mail system.
4) TIPS (or SPIT) Training: Supervisors can commit NLRA violations by their comments and reactions to employees during an organizing campaign. Almost every lawyer and consultant will use the acronym T-I-P-S to train supervisors about what they can and can’t do in during an organizing campaign:
T stands for threaten. Supervisors cannot threaten individuals participating in union activities with reprisals such as reducing their benefits, termination of employment, or any other kind of retaliation. Companies also cannot commit the threatened acts.
I stands for interrogate. Supervisors cannot question any employees about whether they signed a union card, whether they support the union effort, how they would vote in a union election, how they feel about union representation, or how others feel about the same subjects.
P stands for promise. Supervisors cannot promise wage or benefit increases, promotions, or future benefits to employees for opposing the union. You also cannot grant any such benefits.
S stands for spy. Supervisors cannot watch union activities in order to determine who is attending meetings, signing cards, or supporting the union. This applies on- and off-work time and on- and off-work premises
5) Card Check Recognition: Pending legislation called the Employee Free Choice Act would require the NLRB to certify a union when a majority of workers sign authorization cards that designate the union as their bargaining representative. The card check process would eliminate the secret ballot election traditionally used to determine union representation. Under the current law, union organization of a workforce occurs after a showing of interest to the NLRB by the presentation of authorization cards together with a recognition petition identifying what the union believes to be an appropriate unit for organizing. The employer may contest the appropriateness of the unit by demanding a hearing before an NLRB representative. After the unit is certified as appropriate by the NLRB, a secret ballot election is held (generally within about 30-45 days after the petition was filed). If the union receives a majority of the ballots cast by employees in the unit, it wins the right to represent the employees in an appropriate bargaining unit. Eliminating the secret ballot has a tremendous impact on an employer's ability to combat organizing attempts. The downside of card checks is the subject of another post in connection with the Employee Free Choice Act.
*Not meant to be an exhaustive list.Salting refers to paid or unpaid union organizers who apply for jobs for reasons of either getting a job and advocating for union affiliation from inside the company, or setting an unwitting employer up for an unfair labor practice. It is unlawful for an employer to refuse to hire an applicant merely because the applicant plans on expressing pro-union views. Typically, a salt will apply for a job making it known on the application, cover letter, or by other communication that union organizing is his or her intention. The reaction of many nonunion employers is to turn down pro-union applicants in violation of the NLRA.
In Toering Electric Company, the NLRB modified its rules for analyzing unfair labor practice charges arising when an employer refuses to hire or to consider hiring an applicant because of union considerations. The Board will now require the General Counsel [which prosecutes ULP charges] to prove that an applicant was "genuinely interested in seeking to establish an employment relationship with the employer." The rationale for the Board’s decision was expressed as follows:
[T]he Board's experience has shown that in some hiring discrimination cases, particularly those involving 'salting' campaigns, unions submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with intent to seek employment, were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer.
Salting is only one of the union hiring tactics that target small nonunion employers that may be less prepared to respond. Other tactics include the following:
A Federal Court judge in Philadelphia added another $62.3 million to a previous $78.5 million class action award for Wal-Mart workers who were working off the clock. The additional award was under Pennsylvania’s Wage Payment and Collection Law (WPCL) which, among other things, imposes penalties on employers that don’t pay wages within 30 days of the time they are due. The WPCL penalty is the greater of $500 or 25% of the unpaid wages. The additional award pays each of the 125,000 class members $500 each.
Class action wage & hour lawsuits pose a significant risk to large employers as observed in a recent BusinessWeek article. Class action cases are attractive to employees and lawyers because dollars grow quickly and attorney’s payoffs are big. Some of the specific aspects of these suits are as follows:
1) Calculations of Damages under the FLSA. Awards to class members consist of back pay (for a period of two or three years); back pay may be doubled for willful violations as liquidated damages; interest and attorneys fees. Sometimes examples can better make a point. Employers can mismanage lunch periods by automatically deducting 30 minutes a day from employee’s pay. An employee may later allege he or she regularly worked through lunch. For an employee, who is paid $12.00 per hour and who work only 40 hours per week, the mismanaged 30 minute lunch yields 2 ½ hours of unpaid overtime each week. That's fifteen dollars of unpaid overtime a week, for 52 weeks, for 2 years, for one employees or a total back pay of $1,560. Then the amount is doubled for a grand total of $3,120. For a small employer with 20 employees that amounts to $62,400.00. For Wal-Mart with 100,000 employees, it amounts to $624 million.
2) Ease of Proof in Class Actions. Class action claims involve challenges to employer’s policies or practices that implicate a large group of similarly situated individuals. There is a relaxed standard of proof for the individual employee. Therefore, the particular facts of each employee’s situation are less important, so long as the policy or practice applied to them.
3) Attorneys Fees. The FLSA provides for attorneys fees award to successful litigants. Typically legal fees in a class action dwarf recoveries by individual class members. Contingent fees are typical. Imagine 20-30% of $62.3 million. Although classifying the fees as “excessive” is the subject of some debate. The race to the courthouse for some class action cases has lead to allegations of kickbacks and other attorney misconduct.
I have previously posted on wage and hour issues that could be the subject of class action claims.
The Five Most Common Wage and Hour Mistakes
Wage and Hour Violations: What are the Consequences?
Ten Tips for Surviving a Wage and Hour AuditYesterday’s $11.6 million jury verdict in the Isiah Thomas/New York Knicks sexual harassment case is generating tremendous blog commentary. Here’s what some are saying about the Knicks’ lawsuit and its “Wake-Up Call” potential:
Kris Dunn at HR Capitalist has a post on Fire, Suspend or Play On?... Isiah Thomas Trial Verdict.... Since the start of the trial, Kris has been soliciting opinions on how the Knicks should address Mr. Thomas’ employment. Now that the verdict is in, it is easier to address his employment and many sports analysts are calling for his termination.
Rush Nigut at Rush on Business has a post on Could the Knicks Have Avoided Sexual Harassment Claims? Rush gives some good advice on avoiding sexual harassment claims in the context of Knicks approach to the sexual harassment claim.
Daniel A. Schwartz at Connecticut Employment Law Blog has a post on Sexual Harassment Prevention Checkup - The Basics of Training and Posting Dan highlights the importance of supervisor training.
Michael Fox at Jottings by and Employer’s Lawyer has a post Isn't It Time for Basketball Yet?. Michael analyzes the jury’s deliberations.
What I take away from this case is that the investigation was botched because a high level executive used his power to derail or dissuade the company from doing an adequate investigation. When a company’s executives or board members stand accused of harassment, the investigation needs to be done by outside experts. Only an experienced outsider can effectively accomplish what needs to be done to protect the company and manage the whole situation including the following:
The Pennsylvania Employment Law Blog participates in and will host the HR Carnival on May 28, 2008. The HR Carnival is the brain child of Evil HR Lady who was the subject of a recent and exclusive interview by this blog. This weeks carnival is hosted by The Work Clinic a blog in the UK and features a compilation of interesting HR related posts from different perspectives..
Continue Reading...The Sunday News features an article In job searches, women take hit that discusses the gap in legal protections under federal and Pennsylvania law for women when it comes to prohibitions against discrimination based on marital status or family status. The article contains the following legal summary that screams out for context and clarification:
When you apply for a job in Pennsylvania, an employer is prohibited from asking you about, among other things, your age, race, religion or ancestry.
But he can ask you if you have children. He can ask you when and if you plan to have kids. He can ask if you're married, single, separated or divorced.
And he can refuse to hire you on the basis of your marital or familial status.
In Pennsylvania, there is nothing illegal about treating employees and prospective employees differently, based on marital or family status. You can be refused a job or refused a promotion simply because, for instance, you're a single parent.
While it is technically correct that it is not unlawful to discriminate based on marital or family status, there are legal prohibitions against employment practices that have a disparate impact against individuals based on their gender or disability. Gender Stereotyping is a recognized and growing basis for discrimination claims. An employer’s gender stereotyping can be demonstrated by interview questions, workplace comments and attitudes about a woman’s role in family matters. For example, in Back v. Hastings on Hudson Union Free Sch. Dist., the court ruled that comments made about a woman's inability to combine work and motherhood -- in particular, that a woman cannot "be a good mother" and have a job that requires long hours or that a mother who received tenure "would not show the same level of commitment [she] had shown because [she] had little ones at home," constituted direct evidence of sex discrimination under a stereotyping theory. Other cases follow similar reasoning.
The EEOC is also seeking to fill this void with its recently published Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities in which the agency acknowledges that there are no express protections from discrimination based solely on parental or caregiver status. However, unlawful disparate treatment may arise when a caregiver is subject to discrimination based on sex and/or race or because of his or her association with an individual with a disability. The Guidance highlights some common circumstances that the EEOC believes might constitute unlawful disparate treatment:
The EEOC is serious about its enforcement actions. On September 27, 2007, the EEOC announced that it has filed suit against Bloomberg L.P. for demoting a class of women and reducing their pay after they announce pregnancies and after they took pregnancy leave. An EEOC trial attorney is quoted in the announcement concerning sexual stereotyping: "This case exemplifies an increasing trend where employers engage in stereotyping of female caregivers and act to limit their employment opportunities. Pregnant women and mothers who work hard and perform well should be valued for their work, not penalized for their gender."
Employers should ask only job related interview questions, treating male and female applicants identically. Avoid stereotyping the roles of men and women in your interview, evaluation and promotion procedures. Don’t get caught off guard with a claim of family responsibility discrimination.
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