Workplace: Key Concepts
12. DIVERSITY AND INCLUSION: Inclusion
A Deloitte white paper, "Global Human Capital Trends 2014,"cites a study by Yoshino and Smith on a behavior they term covering. This defensive behavior occurs when an organization recruits a diverse workforce but, consciously or otherwise, promotes assimilation rather than inclusion. The subtle (if unintended) message to recruits is "you are welcome despite of who you are, not because of who you are." Covering affects workers' behavior along four dimensions: Appearance. Adjusting their attire, grooming, and mannerisms to "blend in." Affiliation. Avoiding behaviors associated with their "identity group" (culture, ethnic minority, sexual orientation, etc.). Advocacy. Avoiding engaging in advocacy on behalf of their identity group. Association. Avoiding associating with members of their identity group.
14. CORPORATE SOCIAL RESPONSIBILITY: CSR Maturity Curve
A critical issue for HR professionals is determining where along the curve their organizations are at present and what next steps are logical and feasible for moving the organizations closer to the next higher phase. Curve low- compliance mid- integration high- transformation
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Civil Rights Act of 1991
According to the Civil Rights Act of 1991, jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Legislative Terms
Amendment Bill Public Comment Period Regulation Veto
11. HR IN THE GLOBAL CONTEXT: Types of Global Assignments
An employee who is being reassigned to an international jurisdiction is now generally referred to as an international assignee, or IA (while "expat" now generally refers to anyone who is not a citizen of the country in which they reside and doesn't intend to become a permanent resident).
15. U.S. EMPLOYMENT LAW AND REGULATIONS: ADA and ADA Amendments Act
As it pertains to employment, the act prohibits discrimination against a qualified individual with a disability because of his or her disability. The passage of the ADA established many responsibilities relating to this class of individuals for all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. The ADA does not cover the federal government when it acts as an employer. The Rehabilitation Act of 1973 (an affirmative action statute) applies to the federal government and its contractors and subcontractors. Section 501 applies only to the federal government as an employer; Section 503 applies only to federal contractors and subcontractors with contracts over $10,000. Essential functions refers to the primary job duties that a qualified individual must be able to perform, either with or without accommodation. A function may be considered essential for a variety of reasons, including (but not limited to) the following items: The reason the job exists is to perform the function. There are a limited number of employees available among whom performance of the job function can be distributed. The function may be highly specialized and require specific expertise or ability. The ADA Amendments Act (ADAAA) of 2008 overturned several U.S. Supreme Court decisions that narrowly interpreted the definition of disability. While the ADAAA retains the basic definition contained in the ADA, it expands the interpretation of these elements, making it much easier for individuals seeking the law's protection to demonstrate that they meet the definition of disability. It also directed the EEOC to amend its ADA regulations to reflect the changes made by the ADAAA. Engaging in reasonable accommodation means modifying or adjusting a job application process, a work environment, or the circumstances under which a job is usually performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions. The ADAAA makes it clear that employers will not be required to provide reasonable accommodation to individuals who associate with a person with a disability or who are regarded as and do not actually have a disability, but consideration for the reasonableness of the accommodation must be given.
13. RISK MANAGEMENT: Drug Use
Before engaging in any drug testing, it is important to verify that organizational policies and procedures comply with all applicable federal laws and regulations and state laws. Varying jurisdictions may have laws that impact testing procedures following an incident at work or during pre-employment testing and other workplace screenings. Laws may specify acceptable recourse following a positive test. For example, some jurisdictions will mandate that an employee has the option of participating in a rehabilitation program following his or her first positive test, barring the organization from dismissing the employee as a result.
14. CORPORATE SOCIAL RESPONSIBILITY: Compliance
Compliance and ethics issues often overlap in areas including employment rights, the environment, consumer interests, child welfare, corporate disclosure and transparency, conflict of interest, corruption, bribery, maintaining business records, discrimination, and so on. These issues span entire organizations and can govern organizational conduct even across jurisdictional lines.
11. HR IN THE GLOBAL CONTEXT: Hyperconnectivity
Compliance with the varying requirements of data privacy laws is a major obligation for global HR, but the range and complexities of data privacy issues that new technological capabilities create suggest that HR's role will need to reach far beyond regulatory compliance.
12. DIVERSITY AND INCLUSION: Making a Business Case
Core business strategies generally face reevaluation and repositioning every five years or so. This means that D&I must be ready, at the least, to realign itself with new directions and, ideally, be positioned to influence the direction strategic changes take. Organizational leadership will also eventually change. Alignment with an organization's evolving core goals enables D&I to continue a central role even after an executive-level (corporate-suite level or senior management) champion moves on.
14. CORPORATE SOCIAL RESPONSIBILITY: Role of Governance in CSR
Good governance is the outcome of a thoughtful assessment of an enterprise's legal, ethical, and civic obligations to the communities it serves and the development of systems that support fulfillment of these obligations.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Civil Rights Court Cases
Griggs v. Duke Power (1971) set the standard for determining whether discrimination based on disparate impact exists. When an employer establishes an employment practice (such as an education requirement or a test score), the employer must be able to justify its actions as being job-related and consistent with a business necessity. Practices, procedures, or tests that appear neutral on their face, and even neutral in their intent, and that result in a discriminatory effect on a protected class without the above justification are illegal. Phillips v. Martin Marietta Corporation (1971) was one of the first cases to apply the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool-aged children while hiring men with such children.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Complexities and Criticality of Records Management
HR also needs to ensure that, in the event a claim is asserted or filed or a government investigation is initiated or threatened, documents even remotely related to the claim or investigation are retained for the duration of the claim or investigation until final disposition (including appeals), even if longer than the retention guidelines ordinarily applied. A final key point about records retention: Record keeping begins long before a job candidate is hired and extends long after an employee leaves the organization.
13. RIAK MANAGEMENT: Defining Risk
ISO defines risk simply as "the effect of uncertainty on objectives." Although risk is commonly seen as something negative, strictly speaking it is neither positive nor negative. It is potential—what could happen. This wording was deliberately chosen by ISO. It underscores the fact that uncertainty can bring good surprises (opportunities) and bad surprises (threats). It can also bring change, which may be good or bad depending on what the organization makes of it. This broader meaning of the word "risk" challenges traditional perceptions of risk as solely negative, and changing these perceptions in the organization may therefore take time and persistence. An organization that is skillful at managing risk in a socially responsible and ethical manner can benefit from risk taking. Willingness to take risks is key to the success of entrepreneurs and the introduction of disruptive technologies that redefine industries. Author Nassim Nicholas Taleb has coined the term "antifragility"—the ability to not just withstand high-impact events or shocks but to improve and benefit from them.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: HR Compliance Checklists
If an organization has legitimate concerns that an HR audit may reveal organizational noncompliance with employment laws and regulations, the organization should follow strict audit procedures and protocols and consider hiring outside legal counsel to conduct the audit. When using audit checklists or other such tools, you should keep in mind that, during a compliance audit, an administrative agency may be more or less rigorous in its efforts (e.g., request fewer documents or request additional documents beyond those on the checklist), depending on the scope of the audit. Checklists and other resources are a good starting point to help an organization assess basic compliance. But such resources are guides only and not a definitive source to determine if appropriate human resource practices are in place and if the organization is 100%-compliant with laws and regulations.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Portal-to-Portal Act
If the employer restricts an employee's activities and does not allow any personal business, then the hours are included as time worked, including overtime. Employers may not be required to pay wages or overtime when an employee is off the premises and on call (asked to stay by the phone or computer, carry a mobile device, or respond to a beeper) as long as the employee generally is not otherwise restricted. All travel that is compensable by contract, custom, or practice must be counted as work time, regardless of the above limitations on counting travel as work time.
13. RISK MANAGEMENT: ISO Principles
In its Standard 31000, ISO has articulated 11 principles for risk management, shown in Figure 25, that allow an organization to assess its ability to manage risk and its level of risk management maturity.
13. RISK MANAGEMENT: Evaluating Risk
In some cases, risks with a large potential impact may be subjected to further analysis before evaluation. For example, scenarios may be created for events at different levels of severity or opportunity—different levels of success with a new executive recruiter and what that will mean to the organization's ability to execute its strategic plans, loss of productivity caused by storms of different magnitudes. This aspect of risk analysis can be highly technical.
14. CORPORATE SOCIAL RESPONSIBILITY: CSR Strategy
It is critical to recognize that any business case to be made for a CSR strategic initiative must be specific to the needs and goals of the particular organization for which that case is being made. This requires a preliminary assessment of possible impacts across the organization's many functions and locations. (A more detailed assessment is required to develop the strategy; it is part of the second step of the process.) An organization should have clear whistleblowing procedures, systems, and policies—enabling individuals within the organization to call attention to harmful, wasteful, or unethical practices they see in the organization, at whatever level. As is so often the case, a balance must be reached. Employees must feel, on the one hand, that they have a clear, confidential (shared strictly on a need-to-know basis) means of reporting perceived wrongdoing without fear of retaliation. On the other hand, they must also feel that there is an effective system in place for timely, impartial, and fair investigations of such reports—that they needn't fear malicious accusations made for personal motives.
13. RISK MANAGEMENT: Strength of Org's Governance
It is important that all of these criteria are aligned. The organization should invest in managing the correct risks, the ones that have strategic impact. The risk appetite and tolerance should be appropriate for the organization's resources and legal requirements. When the organization's risk attitude and the positions it seeks are not aligned with these other factors, it is the responsibility of those who have greater understanding of these risks to educate decision makers about issues. Three common examples of misaligned risks are moral hazard, the principal-agent problem, and conflict of interest.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Employee Retirement Income Security Act
Most private-sector employee benefit programs are subject to some provisions of ERISA. The legislation applies to and regulates qualified private retirement plans and welfare plans such as employer-sponsored group medical programs, group life insurance, and long-term disability coverage. Many public-sector employers and churches are not subject to ERISA. The Pension Benefit Guaranty Corporation (PBGC) insures payment of certain pension plan benefits in the event that a private-sector defined benefit pension plan lacks sufficient funds to pay the promised benefits. Covered plans or their sponsors are required to pay premiums to the PBGC. In turn, the PBGC guarantees payment of vested benefits (up to a maximum limit) to employees covered by these pension plans. It does not insure retirement plans that do not promise specific benefit amounts—defined contribution plans such as profit-sharing or 401(k) plans.
13. RISK MANAGEMENT: Increase or Decrease Effect
One should note here that enhancement and mitigation efforts can be expensive. They should be thoroughly tested under realistic conditions and modified if necessary before they are implemented. Organizations must also carefully examine: Whether the cost exceeds the tangible and intangible benefits of the opportunity or the cost of the avoided or diminished threat. The degree of success for the enhancement/mitigation plan. If the plan creates another layer of opportunity or risk, termed "secondary risk," that must be managed as well. For example, say that HR implements mandatory background checking to reduce hiring risks. However, the screening takes a considerable amount of time and creates a secondary risk that the delay will decrease the chances that the firm will be able to hire its top choices. HR will have to identify vendors who can guarantee fast screening times.
13. RISK MANAGEMENT: Security Threats
Organizations must be proactive with regard to workplace violence. There should be a written workplace violence prevention policy outlining the organizational stance toward workplace violence and outlining response procedures designed to prevent possible threats from escalating. Designating a response team, employing security personnel, and developing resources for employees are additional steps that can assist in the prevention of workplace violence. Conducting drills, including active shooter drills, can ensure that employees know how to react if an instance of workplace violence occurs.
12. DIVERSITY AND INCLUSION: 4 Layers of Diversity
Personality. At the center are matters unique to each individual—style and characteristics, preferences, perceptions, behavioral predispositions, cognitive and learning styles—all of which are influenced by, and in turn influence, the successive outer layers. Internal dimensions. These are aspects of self, often assigned at birth, over which we have little control. They include gender, sexual orientation, physical abilities, ethnicity, race, and age. External dimensions. These are the results of life experiences and choices. They include geographic location, income, personal habits, recreational habits, religion, education, work experiences, appearance, marital status, and parental status. Organizational dimensions. These are similarities and differences based on an individual's position in the organization. They include functional level or classification; content or field of work; division, department, unit, or group; seniority; work location; union affiliation; and management status.
14. CORPORATE SOCIAL RESPONSIBILITY: Redefining Bottom Line for Sustainability
Porter and Kramer contrast corporate shared value (CSV) with corporate social responsibility (CSR) as traditionally defined. They argue that traditional CSR efforts are too often focused on reputation and only tangentially related to the core business, making their costs too hard to justify and maintain in the long run. CSV efforts, on the other hand, are more supportable because they are "integral to a company's profitability and competitive position."
13. RISK MANAGEMENT: Promoting QA and Continuous Improvement in Risk Management
Risk management is not a static process. Risks are inherently dynamic, increasing and decreasing with changes in internal and external environments. Identified risks must be regularly reassessed to see if the risk still exists or has dissipated or whether the level or characteristics of the risk have changed.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Sarbanes-Oxley Act
SOX created ERISA Section 101(i), which requires administrators of 401(k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 days, but not more than 60 days, in advance of a blackout period. The act added a civil penalty for a plan administrator's failure or refusal to provide timely notice of a blackout period. The blackout period is a period of more than three consecutive business days during which participants or beneficiaries cannot direct the investment of or diversify assets credited to their accounts or obtain loans or distributions, other than certain exceptions specified in ERISA Section 101(i). The 30-day minimum, 60-day maximum blackout notice must be in writing and must be stated in a way that the average plan participant can understand. Electronic notification is permitted if the notice is "reasonably accessible" to participants. The notice must include: Reasons for the blackout period. Identification of the investments and participant rights that are affected. Expected beginning date and length of the blackout period. Statement that individuals should evaluate the appropriateness of their current investment decisions in light of their inability to direct or diversify their accounts during the blackout period. Employees are protected under the act when they: Raise the allegations of fraud to either a federal agency or a member of the organization who has authority to "investigate, discover, or terminate misconduct." File, testify in, participate in, or assist in a proceeding filed or about to be filed related to securities fraud.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Workplace Harassment
Sexual harassment claims fall into two categories. Quid pro quo. Quid pro quo means "this for that" or "something for something." Quid pro quo harassment occurs when an employee is forced to choose between giving in to a superior's sexual demands and forfeiting a benefit. The benefit may be economic in nature, such as a pay increase or continued employment, or it may be noneconomic, for example, a better shift. It can also be an offer for a trade of such a benefit with no resulting benefit actually being exchanged. Hostile environment. Hostile environment harassment occurs when sexual or other discriminatory conduct is so severe and pervasive that it unreasonably interferes with an individual's performance; creates an intimidating, threatening, or humiliating work environment; or perpetuates a situation that affects the employee's psychological well-being. Precedent setting harrassment claims Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998) are two U.S. Supreme Court rulings distinguishing between supervisor harassment that results in tangible employment action (such as discharge, failure to promote, or demotion) and supervisor harassment that does not. When harassment results in a tangible adverse employment action, the employer is always liable. This legal responsibility of the employer is a form of vicarious liability. Vicarious liability is a legal doctrine under which a party can be held liable for the wrongful actions of another party. Because of this doctrine, employers are legally responsible for the discriminatory acts of their supervisors and managers and may be for their nonsupervisory employees as well.
11. HR IN THE GLOBAL CONTEXT: Global Assignment Process
Stage 2: Management and Assignee Decision Once the candidate has been selected, the organization has the information it needs to engage in due diligence regarding the costs, benefits, logistics, and other aspects of the global assignment. Likewise, the candidate must evaluate the assignment offer to be sure he or she is making a sound career and personal decision.
14. CORPORATE SOCIAL RESPONSIBILITY: Redefining CSR Stakeholders
Sustainability requires that the organization's value be defined by a broader definition of stakeholders. Stakeholders are all those affected by the organization's social, environmental, and economic impact—shareholders, employees, customers, suppliers, regulators, and local communities.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Consolidated Omnibus Budget Reconciliation Act and Amendments
The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 provides individuals and their dependents who otherwise would lose their coverage due to a COBRA qualifying event with an opportunity to continue receiving health-care coverage under the employer's group health plan at the individual's expense. COBRA qualified beneficiaries must pay the full premium for the coverage. In addition, the plan may elect to charge a qualified beneficiary a 2% administrative fee.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: EEOC Complaint Process
The EEOC has field offices nationwide. Charging parties who believe that they have been discriminated against can file a charge in any field office.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Employee Polygraph Protection Act
The Employee Polygraph Protection Act (EPPA) of 1988 generally prevents most private employers from requiring applicants or employees to take a polygraph test for preemployment screening or during the course of employment. There are very limited exceptions. Even in the above cases (other than with respect to polygraph tests administered by the federal government to employees of federal contractors engaged in national security intelligence or counterintelligence functions), an employer may not discriminate against prospective or current employees and may not discharge any current employee based solely upon refusal to take a polygraph test or analysis of a test. If an employee voluntarily agrees to take the test, the employee may terminate the test at any time.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Equal Pay Act
The Equal Pay Act (EPA) of 1963, technically an amendment to the FLSA, prohibits unequal pay for equal or "substantially equal" work performed by men and women. Once a pay disparity is established between a male worker and a female worker performing substantially equal jobs, the burden of proof shifts to the employer to justify its actions. An employer can defend its pay disparity by showing that the pay disparity was based on: A seniority system. A merit system. A difference in the quality or quantity of work. Geographic work differentials. Any factor other than sex. Comparable worth deals with pay differentials between women and men who perform comparable—but not equal—work. Comparable worth looks at different jobs that women and men hold that require comparable skills, effort, responsibility, and working conditions. Although the EPA does not require consideration of comparable worth, some states require all public jurisdictions such as school districts to eliminate any sex-based wage inequities.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Fair Credit Reporting Act and Fair and Accurate Credit Transactions Act
The Fair Credit Reporting Act (FCRA) of 1970 regulates the collection and use of consumer credit information. The FCRA's purpose is to protect the privacy of background information and to ensure that the information supplied is accurate. FCRA calls for full disclosure of consumer reports (including credit reports, criminal background checks, motor vehicle history, employment verifications, and reference checks) by consumer reporting agencies (CRAs) so that individuals subject to them can dispute the accuracy, wrongful use, or interpretation of the information. The legal obligations that the FCRA imposes on CRAs did not apply to employers at the law's inception. A 1999 memorandum, however, did extend the compliance requirement to employers who use a third party (CRA) to pull credit consumer reports, run criminal background checks, or conduct detailed background checks on applicants, employees, and independent contractors. This requirement was addressed in the Fair and Accurate Credit Transactions Act (FACT Act) of 2003, which is discussed below. The Fair and Accurate Credit Transactions Act (FACT Act) of 2003 amends the Fair Credit Reporting Act and provides some relief to employers using third parties to conduct workplace investigations. Under the FACT Act, an employer who uses a third party to conduct a workplace investigation no longer needs to follow the consent and disclosure requirements of the FCRA before commencing the investigation if the investigation involves suspected misconduct, a violation of law or regulations, or a violation of any pre-existing written policies of the employer.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) of 1938 establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full- and part-time workers in the private sector and in federal, state, and local governments. The FLSA applies to public and private employers with at least $500,000 in annual dollar volume of business (with some limited exceptions). It also applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce. An employer has no ongoing obligations under the FLSA to self-employed independent contractors. Therefore, it is critical that the organization clearly identify which of its workers are employees (covered by FLSA regulations) and which are independent contractors (not covered by FLSA regulations). The exempt/nonexempt distinction is important. Under the FLSA, exempt employees are excluded from the minimum wage and overtime pay requirements of the law. Nonexempt employees are not excluded from minimum wage pay requirements and are entitled to overtime pay. FLSA exemptions. Generally, in order for an employee to be exempt, three requirements must be met: (1) minimum salary, (2) paid on a salary basis (without improper deductions), and (3) primary duties. Exempt employees must work in a bona fide manner in, for example, executive, administrative, professional, or outside sales positions. In general, they must be paid on a salary basis, with a guaranteed minimum amount no matter how many hours are worked per week, at not less than $684 per week. Improper deductions and safe harbor. A safe-harbor provision prevents an employer from losing an overtime exemption for improper pay deductions—regardless of the reason for the improper deductions—where the employer: Has a "clearly communicated policy" that prohibits improper pay deductions and includes a complaint mechanism. Reimburses employees for any improper deductions. Makes a good-faith effort to comply in the future. Note that willful violations of the policy by continuing the improper deductions after receiving employee complaints will remove the employer from safe harbor. Blue-collar workers are defined as those who perform work involving repetitive operations with their hands, physical skill, and energy. The DOL has stated that individuals in these positions will not be exempt no matter how highly they are compensated. Each of these provisions once again states that exemptions are based not on job titles but on job duties. Thus, while the specific jobs listed are likely to fall into the categories suggested by the DOL, case-by-case analysis will still be necessary. The job description becomes a key document for determining FLSA status. However, a job description alone is not determinative as to exempt status. Therefore, organizations need to keep their job descriptions up-to-date to ensure that they accurately reflect job duties. The FLSA also stipulates that employers must be sure that nonexempt employees are fully relieved of their duties during lunch or other unpaid breaks and that lunch and other breaks are of the length of time required under federal and state law. For example, nonexempt employees who answer business e-mails while eating lunch at their desks may be owed compensation not only for the time that is worked but also for the entire break period—depending on the amount of work that is performed during that break. Again, while an employee who works during a break is entitled to be compensated for such time, the employee may also be subject to corrective action. Along with employee status, the FLSA regulates the following. Child labor provisions. The FLSA restricts the hours and conditions of employment for minors and protects children under 18 years of age from "oppressive" employment conditions. Employers should obtain an employment and/or age certificate approved by the Wage and Hour Division of the DOL (the enforcing agency); this certificate is usually issued by the appropriate state agency or the minor's school. Child labor provisions under FLSA are designed to protect the educational opportunities of youth and prohibit their employment in jobs that are detrimental to their health or physical and mental safety. The FLSA restricts the hours that minors can work and lists hazardous occupations too dangerous for young workers to perform. Employers need to display the DOL's required "Federal Minimum Wage" poster. Employers can get a free copy by visiting the DOL website, www.dol.gov. Employers should also visit their states' departments of labor websites to download state-required postings regarding minimum wage.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Genetic Information Nondiscrimination Act
The Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance. Employment decisions based on genetic information are inappropriate because genetic information does not tell the employer anything about an individual's current ability to work.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Immigration Reform and Control Act
The Immigration Reform and Control Act (IRCA) of 1986 is designed to accomplish two somewhat divergent purposes. IRCA prohibits discrimination against job applicants on the basis of national origin or citizenship and, at the same time, establishes penalties for hiring undocumented workers, with certain exceptions. Employers who hire someone who is not entitled to work in this country face civil and/or criminal penalties. IRCA is enforced by U.S. Citizenship and Immigration Services (USCIS), a special branch of the Department of Homeland Security (DHS).
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Labor Relations Act and Amendments
The National Labor Relations Act (NLRA) of 1935 was passed with the purpose of protecting and encouraging the growth of the union movement. The act established workers' rights to organize and bargain collectively with employers. The NLRA also established a new independent agency—the National Labor Relations Board (NLRB). The Labor-Management Relations Act (LMRA) of 1947 significantly amended the NLRA and imposed several restrictions and requirements on unions. The Labor Management Reporting and Disclosure Act (LMRDA) of 1959 further amended the NLRA and imposed regulations on internal union affairs and the relationship between union officials and union members. Employers should remember that, even if there is no organizing campaign under way or contract in place, they must abide by the provisions of the NLRA and respect covered activities. These may include one employee acting on the authority of one or more coworkers or two or more covered employees: Objecting to harassment. Refusing to work under dangerous conditions. Honoring a picket line, refusing voluntary on-call work, filing grievances, or protesting discrimination. Complaining about wages or hours of work. Petitioning the employer for resolution of some issue. NLRB v. Weingarten (1975) is a landmark labor relations case. The case dealt with the right of a unionized employee to have another person present during certain investigatory interviews—the so-called Weingarten rights. Over the years, the NLRB has vacillated on the applicability of Weingarten to nonunion employees: In 2000, the NLRB extended these rights to nonunion employees. Nonunion employees who were not supervisors were able to bring along a coworker to an investigatory meeting with an employer. In 2004, the NLRB ruled that the Weingarten rights apply only to unionized employees, reversing the 2000 decision. In 2016, the NLRB was petitioned to change its position and again apply Weingarten rights to nonunion employees; the NLRB declined to do so.
14. CORPORATE SOCIAL RESPONSIBILITY: CSR Framework and Guidelines
The OECD Guidelines—derived from International Labour Organization (ILO) Conventions—are recommendations from OECD member governments, consistent with their laws, to multinationals. Adherence is voluntary and not enforceable by the governments. Disclosure Human rights Employment and industrial relations Environment Combating bribery, bribe solicitation, and extortion Consumer interests Science and technology Competition Taxation The Global Reporting Initiative Sustainability Reporting Standards (GRI Standards) are a universally accepted standard for reporting the results of an organization's sustainability programs. ISO 26000 is a quality standard that provides guidance on key themes of social responsibility. It contains principles of social and environmental responsibility as well as guidance for action and expectations for implementation. The standard provides definitions as well as principles and practices that can be used to develop CSR strategies.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Occupational Safety and Health Act
The Occupational Safety and Health (OSH) Act of 1970 established the first national policy for workplace safety and health. This federal law requires employers to provide safe and healthful working conditions for employees.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Patient Protection and Affordable Care Act, Amendment, and Case Law
The Patient Protection and Affordable Care Act (PPACA) of 2010, amended by the Health Care and Education Reconciliation Act, is one of the largest U.S. health-care reforms since Medicare legislation in 1965. PPACA provisions are extensive and include a rolling time line of effective dates. Since 2014, virtually all citizens and legal residents of the U.S. have been required to have minimum essential health coverage. (An exception is made for lower-income individuals.) Failure to do so results in an excise tax penalty. A key PPACA provision requires employers with more than 50 full-time employees to offer minimum essential health coverage that meets minimum benefit specifications or pay a penalty of $2,000 per full-time employee per year. This provision became effective for employers with at least 100 full-time employees beginning in 2015 and for employers with at least 50 full-time employees beginning in 2016. In National Federation of Independent Business v. Sebelius (2012), the U.S. Supreme Court considered two key PPACA provisions: Medicaid expansion and the individual mandate.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Worker Adjustment and Retraining Notification Act
The Worker Adjustment and Retraining Notification (WARN) Act of 1988 requires some employers to give a minimum of 60 calendar days of advance written notice if a plant is to close or if mass layoffs will occur. This act allows displaced workers adequate time to search for a new job and allows government entities to determine whether any assistance may be available for affected workers; therefore, it potentially reduces the impact of any mass layoff or plant closing. Employers must check state and local law. Some states have WARN acts that have stricter criteria. A number of states and some municipalities have "mini WARN" laws that may apply even when federal WARN does not.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Family and Medical Leave Act and Amendments
The act covers private-sector employers with 50 or more employees (full- or part-time) for 20 or more workweeks in the current or preceding calendar year. It applies not only to private employers but also to nonprofit organizations and public agencies (regardless of the number of employees), including Congress. To be eligible for FMLA leave, an employee must have worked at least 12 months (total) for the employer, for at least 1,250 hours in the 12-month period preceding the commencement of the leave, and at a site within 75 miles of which 50 or more employees work. The definition of a "serious health condition" has evolved over time. The 1993 FMLA regulations defined a serious health condition as one requiring inpatient hospital, hospice, or residential care or continuing treatment by a health-care provider (with multiple definitions). DOL regulations issued in 2009 clarified one of the definitions of a serious health condition, which involves employee incapacity for more than three consecutive, full calendar days plus two visits to a health-care provider or one visit to a health-care provider plus a regimen of continuing treatment. The first health-care provider visit must occur within seven days of the first day of incapacity. Where applicable, the two visits must occur within 30 days of the beginning of the period of incapacity, absent extenuating circumstances. In addition, for chronic serious health conditions, the employee must visit a health-care provider at least twice per year.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Age Discrimination in Employment Act and Amendments
The act prohibits discrimination in every aspect of employment against employees and applicants age 40 and over, with a few limited exceptions to recognize that advanced age may, in some circumstances, affect an individual's ability to perform certain jobs effectively. Other exceptions to ADEA's nondiscrimination requirements may occur under the following circumstances: The employer is adhering to a genuine seniority or benefit plan. The employer is disciplining or firing a person for reasonable factors other than age. The employee is a top executive or policy maker. (High-level managers and certain bona fide executives or high policy makers can be required to retire at age 65 if they are entitled to receive organization-sponsored retirement benefits of at least $44,000 per year, in the aggregate, and have held their position for two years immediately prior to retirement.) The top executive exception to the prohibition on mandatory retirement does not apply in some states. If the exception does not apply in a particular state, then the federal exception is irrelevant in that state. In some states, however, there may be a cap of age 70 for protection. In those states, a top executive can be required to retire only if he or she meets the criteria established under federal law and is age 70 or older under state law. The Older Workers Benefit Protection Act (OWBPA) of 1990 amended the ADEA to prohibit discrimination in two areas: Employee benefits. The act provides guidance on the ADEA requirement that benefits offered to older workers must be equal to the benefits offered to younger workers. Waivers of claims. The act provides standards that an employee's waiver of the right to sue for age discrimination must meet in order to be upheld by a court.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Title VII of the Civil Rights Act of 1964, Amendments, and Cases
The cornerstone of federal antidiscrimination legislation is the Civil Rights Act of 1964. This landmark piece of U.S. legislation was the nation's first comprehensive federal law making it unlawful to discriminate in employment on the basis of race, color, religion, sex, or national origin. Now, under various statutes, there are a number of additional federally protected classes. Title VII of the Civil Rights Act was passed to bring about equality in hiring, transfers, promotions, compensation, access to training, and other employment-related decisions. The Equal Employment Opportunity Act of 1972 amended Title VII and gave the EEOC authority to "back up" its administrative findings and conduct its own enforcement litigation. The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions; it requires employers to treat pregnancy the same as any other temporary disability. Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions. The Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines") cover all aspects of the selection process, including recruiting, testing, interviewing, and performance appraisals (to the extent that they are used to make employment decisions).
12. DIVERSITY AND INCLUSION: Equity
The term "equity" often arises in D&I discussions. The word has several different meanings in the world of business, however, so some clarification of its meaning in this particular context may be helpful: In finance, equity (almost always) means ownership. In compensation, equity (almost always) means relative fairness in total rewards. In hiring, equity means equal opportunity (to work).
14. CORPORATE SOCIAL RESPONSIBILITY: Triple Bottom Line
The triple bottom line can be viewed as the performance measurement of an organization pursuing a strategy of CSR or sustainability (the terms are sometimes used interchangeably); its goal, then, is to achieve a positive ROI (return on investment) in each of the three areas. It can also serve as an organizing principle for a scorecard or checklist of measures for evaluating whether and/or how to pursue a given project so as to meet sustainability goals.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Uniformed Services Employment and Reemployment Rights Act and Amendments
USERRA was enacted to protect the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed services. The final DOL regulations confirm that USERRA applies to virtually all employers, both public and private, regardless of size, and prohibits discrimination in employment, job retention, advancement, or any benefit of employment on the basis of membership, application for membership, application for service, performance of service, or obligation for service in the uniformed services.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Drug-Free Workplace Act
Under the Drug-Free Workplace Act of 1988, federal contractors with contracts of $100,000 or more as well as recipients of grants from the federal government in any amount must follow requirements to certify that they are maintaining a drug-free workplace
15. U.S. EMPLOYMENT LAW AND REGULATIONS: Ledbetter v. Goodyear Tire and Rubber Company and Lilly Ledbetter Fair Pay Act
Under the Ledbetter Act, the statute of limitations resets as the employer issues each allegedly discriminatory paycheck. Additionally, the open-ended nature of the law's coverage of unlawful employment practices, which includes compensation decisions or "other practices," suggests that employees and their families or heirs could file a discrimination lawsuit against an employer regarding benefits such as salary-based defined benefit and contribution-based defined contribution retirement plan payouts and salary-based life insurance proceeds.
15. U.S. EMPLOYMENT LAW AND REGULATIONS:
When changing from paper to electronic storage, employers must follow certain protocols. The DOL has published guidelines in its "Final Rules Relating to Use of Electronic Communication and Recordkeeping Technologies by Employee Pension and Welfare Benefit Plans," which employers can use as a standard for all electronic record keeping.
15. U.S. EMPLOYMENT LAW AND REGULATIONS: 80% Rule
When the 80% rule is violated and adverse impact occurs, employers have the following alternatives: Analyze the data more rigorously to determine whether there is in fact adverse impact. This may include both statistical and practical analyses. (Note: This alternative may be the first step toward meeting the "strong basis in evidence" standard set by the U.S. Supreme Court decision Ricci v. DeStefano in 2009, but it is not the only step.) Use another procedure that has been demonstrated to have lesser adverse impact. Modify the procedure to eliminate adverse impact. Validate the job-relatedness of the selection procedure (e.g., validation studies, detailed records, and fact finding about alternatives with less adverse impact). Justify the procedure as a business necessity.
13. RISK MANAGEMENT: Effectiveness of Current Risk Controls
While establishing the organizational risk context, it is important to evaluate the effectiveness of current risk controls. As you look at identified risks, first ask, "Are there risk controls in place?" If there are, then ask, "Does the data show that the controls are effective?"
