How To Protect Your Employees From Discrimination

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1 What Are Some of the Major Compliance Risks in Human Resources? Presented by: - Ron Blasko, Tartan Risk Solutions - Cecily Gingrich & Brenda Good, J.L. Nick & Assoc. J. L. Nick & Associates, Inc. is a full service Human Resource/Business consulting firm established in Our firm provides expertise in all facets of Human Resources. In addition to our support staff of 3, we have 11 Senior Consultants with an average of 35+ years experience creating and implementing Human Resource solutions designed to positively affect the bottom line. J. L. Nick & Associates, Inc. 2 Supervisory/ Managerial Development/ Training Union Interface/Avoidance Affirmative Action & Diversity Compensation/Wage Programs Employee Benefits Development & Admin. Employee Communication Safety/Health Programs Recruitment, Selection & Hiring Human Resource Management Employee Relations/ Advocacy HR Policy Development Performance Management Programs Organizational Development New Hire Orientation/ Onboarding HRIS Recordkeeping & Admin. HR Compliance J. L. Nick & Associates, Inc. 3 J. L. Nick & Associates, Inc. 4 1

2 Along with the high cost of health care, other ongoing themes from the last decade of SHRM Workplace Forecast Surveys include: A more competitive global business landscape and the rise of emerging economies. The impact of information and communications technologies. A more complex legal environment and changes to laws influencing employee rights and employer legal compliance. The aging of the workforce and retirement of the Baby Boom generation (those born between 1945 and 1964). Staffing Issues. Economic uncertainty and volatility. Greater demand for work/life balance. Continuing high cost of employee health care coverage in the U.S. Implementation of health care legislation A shortage of skilled workers Large numbers of Baby Boomers leaving the workforce at the same time Lack of STEM Graduates in the U.S. compared to other countries Decline in employees retirement savings Rise in fuel/gas prices in the U.S. & globally Threat of a dip back in to recession in the U.S. Greater economic uncertainty & market volatility Source 2013 SHRM Workplace Forecast J. L. Nick & Associates, Inc. 5 J. L. Nick & Associates, Inc. 6 Hiring Updating approaches to recruiting, linking employee performance and its impact on the organization s business goals, and putting more emphasis on people readiness. Technology Using social networking sites for recruiting, employer branding and other purposes, updating technology use policies for employees, expanding use of e-learning, and expanding use of technology based applications for employees and manager selfservice. Legal Compliance PPACA (Patient Protection & Affordable Care Act) implementation Changing organizational policy in response to federal & state regulations and changing employment practices to minimize legal risk. NLRB s expanding influence Transgender bias Pregnancy discrimination Systemic discrimination Intentional hiring discrimination Application process Screening tools Background checks J. L. Nick & Associates, Inc. 7 J. L. Nick & Associates, Inc. 8 2

3 DOL Wage Enforcement Wage & Hour Violations (Illustration) Misclassification of employees Home healthcare, child care, transportation, warehousing, construction, staffing companies, meat processing, corporate/parent subsidiaries. Certain exemptions also targeted Administrative Sales particularly pharmaceutical and account reps Removal of Employment Barriers (already in effect) Texting Ban (already in effect) Is your policy updated?? Ohio Incumbent Workforce Training Voucher Program Discrimination Law Reform proposed J. L. Nick & Associates, Inc. 9 J. L. Nick & Associates, Inc. 10 Flexible work arrangements gain ground Compensation Pay increases! Fewer pay freezes Increases for performance Talent Management Attributes that retain/engage Top reasons: Growth, advancement opportunities, work/life balance, quality co-workers, base pay Less emphasis: Work environment, incentive pay, benefits Investment in training & development remains strong. Federal and state have plans to improve workforce readiness and job skills training. Turnover increasing hiring increasing means people are moving (could be good ) J. L. Nick & Associates, Inc. 11 J. L. Nick & Associates, Inc. 12 3

4 1 14 Employees Consumer Credit Protection Act of 1968 Employee Retirement Income Security Act (ERISA) Equal Pay Act of 1963 Employee Polygraph Protection Act of 1988 Fair and Accurate Credit Transactions Act of 2003 Fair Credit Reporting Act of 1969 Fair Labor Standards Act (FLSA) Federal Insurance Contributions Act of 1935 (FICA) Health Insurance Portability & Accountability Act (HIPAA) Immigration Reform & Control Act Labor-Management Relations Act of 1947 (Taft-Hartley) Lilly Ledbetter Fair Pay Act of 2007 National Labor Relations Act of 1935 (NLRA) Newborns and Mothers Health Protection Act of 1996 Occupational Safety and Health Act of 1970 (OSHA) Sarbanes-Oxley Act of 2002 Uniform Guidelines of Employee Selection Procedures Uniformed Services Employment & Re-Employment Rights Act (USERRA) J. L. Nick & Associates, Inc. 13 J. L. Nick & Associates, Inc Employees, add OSHA Recordkeeping Employees, add Americans with Disabilities Act (ADA), Amendments Act Title VII of the Civil Rights Act Genetic Information Non-Discrimination Act (GINA) Employees, add Age Discrimination in Employment Act (ADEA) Consolidated Omnibus Budget Reconciliation Act (COBRA) 50 or more, add EEO-1 Report and Affirmative Action Plan if a contractor of at least $50,000 Family & Medical Leave Act (FMLA) Mental Health Parity Act of 1996 Mental Health & Addiction Equity Act of 2008 Patient Protection and Affordable Care Act of 2010 (PPACA) J. L. Nick & Associates, Inc. 15 J. L. Nick & Associates, Inc. 16 4

5 100 or more, add EEO-1 Report if not a Federal contractor Workers Adjustment & Retraining Notification Act (WARN) Federal Contractors, add Executive Order Vocational Rehabilitation Act of 1973 Drug-Free Workplace Act of 1988 Vietnam-Era Veterans Readjustment Act of 1974 (VEVRA) Davis Bacon Act of 1931 Copeland Act of 1934 Walsh-Healy Act of 1936 Service Contract Act (1965) Contract Work Hours and Safety Standards Act Maximum of 25% of employee s earnings or amount by which earnings exceed 30x minimum wage for garnishments Protection for employees from discharge due to garnishments Prior disclosure of intent to conduct background checks (consumer report) Signed authorization from applicant/employee required. Report must be job-related (criminal, credit, MVR). Prior to taking adverse action, applicant must be given copy of report and rights, and chance to clear up errors. Case-based decision: Severity, age at time of occurrence, length of time elapsed must be taken into account. If adverse action taken, employer must provide notice to applicant, contact information of agency and statement that agency did not make decision. J. L. Nick & Associates, Inc. 17 J. L. Nick & Associates, Inc. 18 Safeguards employee benefits, once provided Reasonable length of service for employee benefit eligibility Adequate funding Standards of conduct for managing plans Proof of employer compliance 5500 Forms and Summary Annual Reports Summary Plan Descriptions Summary of Material Modification Prevents employers from using polygraph (lie detector) tests, either for pre-employment screening or during the course of employment, with certain exemptions for security firms and pharmaceutical companies J. L. Nick & Associates, Inc. 19 J. L. Nick & Associates, Inc. 20 5

6 Prohibits pay differentials on basis of sex in substantially equal work requiring equal skill, effort, and responsibility Covers wages/benefits within same location Formal compensation program is defense: Up-to-date job descriptions Market-based pay knowledge Internal equity and value ranking Salary structures with pay ranges and calculated compensation ratios Amendment to the Fair Credit Reporting Act allowing consumers to request and obtain a free credit report once every twelve months J. L. Nick & Associates, Inc. 21 J. L. Nick & Associates, Inc. 22 Minimum Wage (Federal and State OH $7.85; PA $7.25) Exempt v. Non-exempt status Independent Contractor status Overtime calculation issues Non-discretionary bonuses Break times of less than 20 minutes Child labor restrictions Federal payroll tax imposed on both employees and employers to fund Social Security and Medicare J. L. Nick & Associates, Inc. 23 J. L. Nick & Associates, Inc. 24 6

7 Protects health insurance coverage for workers and their families when they change or lose their jobs Establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers Provider must have a signed disclosure from the affected before giving out any information on provided health care to anyone Limits restrictions that a group health plan can place on benefits for preexisting conditions Individuals may reduce this exclusion period if they had creditable coverage. Form I-9s Section 1 must be completed on first day of employment Section 2 by third day of employment Ensure work authorization documents that will expire are updated Keep current forms in alpha order and terminated employee I-9s in chronological order. Conduct audits on a regular basis. If corrections are needed, fill out new form and attach to old one. J. L. Nick & Associates, Inc. 25 J. L. Nick & Associates, Inc. 26 Restores the balance between labormanagement relations 9 unlawful union actions Rule changes for representation elections 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. J. L. Nick & Associates, Inc. 27 J. L. Nick & Associates, Inc. 28 7

8 Guarantees employee rights to engage in protected concerted activity, including rights to organize or decertify union. Enforced by the National Labor Relations Board Requires plans that offer maternity coverage to pay for at least a 48-hour hospital stay following childbirth (96-hour stay in the case of a caesarean section). Type of coverge (insured or self-insured) and state law will determine whether the Act applies to a mother s or newborn s coverage. The Act provisions always apply to coverage that is self-insured. J. L. Nick & Associates, Inc. 29 J. L. Nick & Associates, Inc. 30 Workplace safety standards Hazard Communication Program Agency workplace inspections No retaliation against employees for exercising rights Maintenance of log and accident reports (11 employees) Sets new or enhanced standards for all U.S. public company boards, management and public accounting firms Top management must individually certify the accuracy of financial information Increased the independence of outside auditors who review the accuracy of corporate financial statements, and increased the oversight role of boards of directors. J. L. Nick & Associates, Inc. 31 J. L. Nick & Associates, Inc. 32 8

9 Tests or procedures used as a basis for employment decisions must be Non-discriminatory Job-related Documented validation Prohibits discrimination; Guarantees re-employment of veterans - reinstatement must occur within two weeks, "absent unusual circumstances ; Preserve employment benefits for employees on uniformed service leave, e.g.. returning employee earns vacation at the rate which (s)he would have earned it if had not been on military leave; For leaves of more than 30 days, the employer provides COBRA-like continuing coverage; restore coverage to covered employees. J. L. Nick & Associates, Inc. 33 J. L. Nick & Associates, Inc. 34 Protection from discrimination for disabled persons; broad definition of disabled Covers all employment practices Enforced by EEOC Job descriptions include physical, mental, emotional requirements Reasonable accommodation Medical confidentiality Proposed website accessibility rules Prohibits discrimination because of: Race Color National origin Religion Sex or pregnancy Creation of Equal Employment Opportunity Commission for enforcement Voluntary affirmative action Jury trials J. L. Nick & Associates, Inc. 35 J. L. Nick & Associates, Inc. 36 9

10 Employers who inadvertently acquire genetic information upon requesting medical information from an employee, like for FMLA purposes, could be in violation of the law and exposed to charges. Employers can rely upon a "safe harbor" only if they affirmatively notify employees of GINA's limitations on requests for genetic information. Train managers and supervisors on this new law and their obligations to keep information about the health of employees and their family members confidential. Protection from employment discrimination based on age (40+) Enforced by EEOC Covers hiring, discharge, compensation, classification, benefits Hostile environment and disparate impact cases can be pursued J. L. Nick & Associates, Inc. 37 J. L. Nick & Associates, Inc. 38 Provides for continuation of group health coverage that would otherwise be terminated (termination, death, reduced hours, divorce, loss of dependent status) Medical, dental, vision, prescription plans Continues for 18, 29 or 36 months, depending on circumstance Employee/dependent cost is 102% of premium Notice requirements, including initial notice upon hire Required by employers of 100 employees; 50 employees if federal contractor/subcontractor Equal employment compliance report filed annually with EEOC Snapshot of workforce by job classifications, gender, and race Requires survey of current workforce and voluntary self-identification of applicants J. L. Nick & Associates, Inc. 39 J. L. Nick & Associates, Inc

11 Facility employs 50 within 75-mile radius Employed 1,250 hours in previous 12 months Allows 12 weeks during any 12-month period and 29 weeks if caring for active duty military or vets discharged within past 5 years Notice and certification requirements Continuation of health benefits Job restoration rights Best practice to run concurrently with sick leave and workers compensation programs Annual or lifetime dollar limits on mental health benefits may be no lower than any such dollar limits for medical and surgical benefits Largely superseded by Mental Health and Addiction Equity Act of 2008 which mandates that if health insurance companies provide coverage for mental health and substance abuse, the coverage must be equal for conditions such as psychological disorders, alcoholism, and drug addiction J. L. Nick & Associates, Inc. 41 J. L. Nick & Associates, Inc. 42 Includes mandates, subsidies, and insurance exchanges to increase health care coverage and affordability Requires insurance companies to cover all applicants within new minimum standards and offer the same rates regardless of pre-existing conditions or sex Employee notification in event of business closing or mass layoff 60 days written notice to each employee Sanctions available for employees J. L. Nick & Associates, Inc. 43 J. L. Nick & Associates, Inc

12 Established requirements for nondiscriminatory practices in hiring and employment on the part of U.S. government contractors Requires contractors with 50 or more employees and contracts of $50,000 or more to implement affirmative action plans to increase the participation of minorities and women in the workplace if a workforce analysis demonstrates their under-representation To correct the problem of discrimination against people with disabilities, Affirmative Action Programs are required of federal contractors. Does not require employers to hire or retain a disabled person if the individual has a contagious disease that poses a direct threat to the health and safety of others and the individual cannot be accommodated Employment is not required if the disability prevents the individual from being able to perform a required part of the job, or if the individual would be considered unqualified for the job regardless of their disease. J. L. Nick & Associates, Inc. 45 J. L. Nick & Associates, Inc. 46 Requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency Prohibits employment discrimination against protected veterans by covered Federal contractors and subcontractors, and requires affirmative action to employ and advance in employment these veterans. J. L. Nick & Associates, Inc. 47 J. L. Nick & Associates, Inc

13 Establishes the requirement for paying the local prevailing wages on public works projects for laborers and mechanics Applies to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works Anti-kickback legislation that supplements the Davis-Bacon Act Prohibits a federal building contractor or subcontractor from inducing an employee into giving up any part of the compensation that he or she is entitled to under the terms of his or her employment contract J. L. Nick & Associates, Inc. 49 J. L. Nick & Associates, Inc. 50 Applies to U.S. government contracts exceeding $10,000 for the manufacture or furnishing of goods Establishes overtime pay for hours worked by contractor employees in excess of 8 hours per day or 40 hours per week, and sets the minimum wage equal to the prevailing wage as determined by the Secretary of Labor Requires general contractors and subcontractors performing services on prime contracts in excess of $2,500 to pay service employees in various classes no less than the wage rates and fringe benefits found prevailing in the locality, or the rates contained in a predecessor contractor's collective bargaining agreement (prevailing wage) J. L. Nick & Associates, Inc. 51 J. L. Nick & Associates, Inc

14 Applies to federal service contracts and federally funded and federally assisted construction contracts worth over $100,000 Requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts one and one-half times their basic rate of pay for all hours worked over 40 in a workweek J. L. Nick & Associates, Inc

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