(c) 2013 all rights reserved by lauren brenner, sphr. the information contained herein is general...

(c) 2013 All Rights Reserved by Lauren Brenner, SPHR. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.

TOP 5 LEGAL HR HOT SPOTS

FOR BUSINESSES

What Every Organization Needs To Know


Presented By:

Lauren BrennerPresident/HR Division

150 Wells AvenueNewton, MA 02459

[email protected]


Agenda

Top 5 Reasons why Employers are Being Sued

Current “hot spots” in Massachusetts Against Discrimination (MCAD) Claims

HR Safeguards to Assist Organizations

Practices and Policies All Organizations Must Have

Test Your Knowledge

1. I-9 information legally needs to be retained

a. In a separate file

b. In the employee’s personnel files

c. Either of the above.

(a) In a separate file that is not attached to the employee’s personnel file (NOTE: Many employers keep all I-9 Forms together, filed alphabetically, in a separate folder).


Test Your Knowledge2. An applicant, employee or former employee may file a harassment or

discrimination complaint with the EEOC (Equal Employment Opportunity Commission) and also in the States of CT, ME, MA and RI within

a. 30 days of the most recent offense

b. 180 days of the most recent offense

c. 300 days of the most recent offense

d. There is no statute of limitations to file a complaint

(c) 300 days of the most recent offense; it is strongly suggested that you retain applicant and employee records for a minimum of one year (NOTE: other legal requirements state longer periods of time for the retention of employee or former employee files).


Test Your Knowledge

3. OSHA (Occupational Safety & Health Act) recordkeeping requirements apply to employers with

a. 1 employee

b. 11 employees

c. 25 employees

d. More than 50 employees

(b) 11 employees (the law does not stipulate that the employees be only full-time).


Test Your Knowledge

4. In MA, when an employee involuntarily separates from your company, whose responsibility is it to educate the terminated employee about unemployment benefits

4. The employee

5. The company

6. The company, but only to those employees who are involuntarily separated from your company

(b) The company needs to send the Division of Unemployment Assistance pamphlet to all terminated employees (regardless of whether the separation was voluntary or involuntary).


Test Your Knowledge

5. When was your Employee Handbook last updated with the recent legal compliance changes (e.g., ACA, ADA, Data Security Breach Law)

a. This past year

b. Within the last 5 years

c. Unsure

(a) With all the federal and state legal compliance changes over the past 1-5 years, companies need to ensure that they do not find themselves legally exposed to fines and penalties for non-compliance or notification to employees.



Top 5 Reasons Employers Are Being Sued

1) Unlawful Pre-Employment Process and Questions 2) Wage & Hour Infractions3) Breach of Confidentiality 4) Rash Disciplinary Decisions/Termination Errors5) Discriminatory Practices/Actions

Protected Categories by State


Connecticut Maine Massachusetts New Hampshireage age (any age) age (40 plus) age

ancestry ancestry ancestry ancestry

color color color color

religion/creed religion religious creed religious creed

race race race race

gender identity or expression gender identity gender identitylawful use of tobacco products

outside of work

national origin national origin national origin national origin

sexual orientation sexual orientation sexual orientation sexual orientation

sex sex sex sex

pregnancy/childbirth pregnancy, childbirth or related conditions pregnancy and childbirth pregnancy, childbirth or related

medical conditions

genetic information genetic information/testing genetic information genetic testing/results

present or past history of mental disability, intellectual disability or

learning disabilityphysical or mental disability physical or mental disability physical or mental disability

homelessnessprevious assertion of a claim or

right under Maine's Workers Compensation Law

arrest record Domestic Violence Victims (eff. 9/9/14)

breastfeeding women AIDS

marital status military status marital status



New York Rhode Island Vermontage marital status age (40 plus) lie detector test age (18 plus) race

AIDS military status AIDS/HIV military status ancestry place of birth

arrest or conviction record national origin color pregnancy or childbirth color pregnancy

color predisposing genetic characteristics

country of ancestral origin race gender identity physical or mental

condition

creed pregnancy disability religion genetic testing/information religion

disability racedomestic abuse order

or petition sex HIV status sex

domestic violence victim status sex

gender identity or expression sexual orientation

Military/ National Guard status sexual orientation

lie detector test sexual orientation genetic testing smoking during nonworking hours

national origin

use of service or guide dog homelessness


#1 Unlawful Pre-Employment Process and Questions

Asking questions to discover protected category information

Requesting criminal history information on employment applications

Asking non-job-related questions Copying a driver’s license prior to employment offer Requiring completion of background check form prior to

employment offer Requiring certain skill testing & /or questions of some

applicants and not others

Pre-Employment Process and Questions Remedies

• Review your application• Standardize your interview process• Keep questions objective• Focus on job requirements & required skills• Avoid questions related to protected categories (e.g., age, disability)

• Develop Written Interview

Questions

• Develop/Review Job Descriptions

• Document of Interview

Information

• Ensure Offer Letters/Non

Disclosure Agreements (NDA)

protect your organization



#2 Wage & Hour Infractions

• Illegal reduction in overtime pay

Providing “comp” time vs overtime pay Not paying for “all” hours worked

• Misclassification of exempt/non-exempt employees

• Independent Contractor vs Employee Status

IRS Revenue Code – 20 Factor Test


Full time required

Under Massachusetts (revised) wage and hour laws, there is a presumption that any individual providing services is an employee, unless the individual meets the following three (3)-part test:

1. The individual has been and will continue to be free from control and direction in connection with the performance of such service under the contract;2. Such service is performed outside the usual course of business

for which the service is performed; and3. Such individual is customarily engaged in an independently established occupation, professional or business of the same nature as that involved in the service performed.



Wage & Hour (cont’d)

PenaltiesEmployers whose “independent contractor” is found to meet the

legal definition of an employee may be required to:

• Reimburse the employee for wages that should have been paid under the FLSA, including overtime and minimum wages, and benefits afforded regular employees

• Pay back taxes and penalties (e.g., state, federal, DUA)• Pay workers’ compensation benefits due an injured

“unclassified” employee

#2 Wage & Hour “To Do” List

• Review criteria for overtime pay – ensure legal compliance including paying employees for “all” hours worked

• Review Independent Contractor vs. Employee

Status

• Who determined what positions were exempt vs. non-exempt? Do you have job descriptions?

•


Wage & Hour Infractions

• Benefits of Job Descriptions• Ensures understanding of the duties, skills, experience and physical

requirements for the position• Creates criteria to evaluate the employee’s work performance for

performance appraisals• Provides information to develop performance improvement plans• Provides documentation to discipline and terminate employees.• Assists in determining whether an accommodation is an essential or

marginal function of the job and whether the individual can perform the required functions.

• Documents an organization’s reason for classifying an employee as exempt or non-exempt.

• Have employees sign the job description documenting that they received a copy and have reviewed the job requirements.


Wage & Hour “To Do” List (cont’d)

Payment of Wages Upon Termination

Final Pay – depends on state requirementso Is it due upon termination?

• CT – Next Day; ME – w/I 2 wks.; MA – Day of; NH & VT – 72 hrs.; NY & RI – Next payday;

o If not, when? (Note: In NH, exempt employee must be paid for full pay period, not just the date of termination)

Vacation Pay Commissions

P.S. (Don’t forget to send COBRA/Mini-COBRA Notice)


#3 Breach of Confidentiality Employee’s Work Performance Terminations HIPAA (Health Insurance Portability and

Accountability Act)

REMEDY – “Need To Know” basis


#4 Rash Disciplinary Decisions/Termination Errors

Acting out of emotion vs. reason

Setting an example with one employee when others have not received the same discipline

Not allowing the employee to state their side of the incident

#4 Rash Disciplinary Decisions/Termination Safeguards

Be consistent – actions taken with one employee should be taken with other employees in similar situations

Ensure you are 100% sure of your facts

Document



#5 Discriminatory Practices/Actions• Treating someone in a protected category differently than

someone else

Hiring Promotions Wage increases Disciplinary Action

or• Not reasonably accommodating someone in a protected

category Religious Holidays Time off

#5 Discriminatory Practices/Actions Reminders

Be consistent

Review the situation, not the employee

Document

AND REMEMBER…..




Connecticut Maine Massachusetts New Hampshireage age (any age) age (40 plus) age

ancestry ancestry ancestry ancestry

color color color color

religion/creed religion religious creed religious creed

race race race race

gender identity or expression gender identity gender identitylawful use of tobacco products

outside of work

national origin national origin national origin national origin

sexual orientation sexual orientation sexual orientation sexual orientation

sex sex sex sex

pregnancy/childbirth pregnancy, childbirth or related conditions pregnancy and childbirth pregnancy, childbirth or related

medical conditions

genetic information genetic information/testing genetic information genetic testing/results

present or past history of mental disability, intellectual disability or

learning disabilityphysical or mental disability physical or mental disability physical or mental disability

homelessnessprevious assertion of a claim or

right under Maine's Workers Compensation Law

arrest record Domestic Violence Victims (eff. 9/9/14)

breastfeeding women AIDS

marital status military status marital status



New York Rhode Island Vermontage marital status age (40 plus) lie detector test age (18 plus) race

AIDS military status AIDS/HIV military status ancestry place of birth

arrest or conviction record national origin color pregnancy or childbirth color pregnancy

color predisposing genetic characteristics

country of ancestral origin race gender identity physical or mental

condition

creed pregnancy disability religion genetic testing/information religion

disability racedomestic abuse order

or petition sex HIV status sex

domestic violence victim status sex

gender identity or expression sexual orientation

Military/ National Guard status sexual orientation

lie detector test sexual orientation genetic testing smoking during nonworking hours

national origin

use of service or guide dog homelessness

(c) 2013 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.

Reality Check

93,727 EEOC claims filed in 2013

99,412 EEOC claims filed in 2012

NOTE: Private sector claims increased by 469 charges

Resulting in $372.1 million in monetary awards through mediation, conciliation and other administrative

enforcement.

NOTE: This figure is $6.7 million more than was recovered in FY 2012.

2013/2012 EEOC Discrimination Charges


Total # of Charges in

2013/2012

Race 2013/2012

Sex 2013/2012

National Origin

2013/2012Religion 2013/2012

Color 2013/2012

Retaliation 2013/2012

Age 2013/2012

Disability 2013/2012

CT 294/279 29.9%/29% 23.8%/27.2% 9.5%/15.8% 1.7%/6.1% 3.7%/6.1% 36.7%/36.2% 31%/33.2% 34%/31.2%

ME 34/34 17.6%/20.6% 14.7%/35.3% 11.8%/5.9% 2.9%/0% 2.9%/2.9% 29.4%/26.5% 23.5%/27.3% 50%/20.6%

MA 100/82 25%/19.2% 28.3%/32.6% 16%/13.1% 3.8%/3.1% 7.8%/3.5% 35%/33.6% 24.5%/29.8% 33.5%/30%

NH 52/59 11.5%/8.5% 26.9%/27.1% 7.7%/10.2% 3.8%/3.4% 5.8%/8.5% 34.6%/33.9% 21.2%/26.9% 48.1/47.5%

NY 3,550/3,914 27.9%/29.1% 3.9%/4% 14.5%/17.2% 4.9%/5.2% 4.6%/5.9% 39.4/37% 23.8%/23.9% 26.4%/27.4%

RI 62/47 19.4%/31.9% 37.1%/19.1% 6.5%/21.3% 6.5%/2.1% 4.8%/10.6% 30.6/36.2% 32.3%/28.1% 24.2%/21.3%

VT 31/34 12.9%/14.7% 45.2%/29.4% 22.6%/5.9% 9.7%/0% 3.2%/11.8% 32.3%/44.1% 32.3%/20% 25.8%50%

Statistics obtained through: http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm


Did you know…

The average monetary award median for employment practice liability cases, which includes discrimination and wrongful termination claims was more than $250,000.

An ounce of prevention is worth its weight in gold!


HR Safeguards to Assist Organizations

State-specific Employment Application Employee Handbook Anti-Harassment Policy & Employee Training Job Descriptions (include safety, education and skill

requisites) Management Legal Compliance Training Management Training

TERMS TO AVOID Permanent vs. Regular (employees) Probationary vs. Introductory Sexual Harassment vs. Anti-Harassment Able to (e.g., job descriptions) Graded vs. Scored (e.g., performance evaluations)



Policies and Practices All Organizations Must Have

Employment at Will Attendance/Tardiness Computer Usage/Electronic Workplace Confidentiality Safety Guidelines Misuse of Substances Dress Code/Personal Hygiene Telephone/Cell Phone Public Relations Guidelines Personal Data Security/WISP (Written Information Security Program) Social Networking


PERSONAL CONDUCT POLICY Does your policy include:

◦ Sleeping on the job◦ Theft and unauthorized removal of company or

employee items◦ Fraud◦ Misappropriation of funds

NOTE: Only have policies that will be adhered to

DATA SECURITY BREACH LAWSteps To Take:

√ Review Your Paper/Electronic Flow Process

√ Develop Company’s Data Security Policy (Use WISP Guideline) include HIPAA info.

√ Provide Training to Employees & Managers

√ What To Do If There Is A Breach



BYOD (Bring Your Own Device) POLICY1. Workforce is more mobile;

2. Employers do not have to purchase the devices = cost savings for companies;

Security Challenge: BYOD security is an issue because the device is used to access both sensitive and risky networks/services.

BYOD can lead to data breaches. Examples:

• Employee uses a Smartphone to access the company network and then loses that phone, unauthorized parties could retrieve any unsecured data on the phone.

• Employee leaves the company, and does not have to give back the device, so company applications and other data may still be present on their device.

• Ownership of the phone number. In sales or other customer-facing positions when employees leave the company and take their phone number with them.


WHY IMPLEMENT A BYOD POLICY?

Establishes Acceptable Use Guidelines & Protocol States the Integrity of Company Network Provides Reimbursement Information if Device is

Lost Release of Liability and Disclaimers to Users of

Personal Devices

NLRB(National Labor Relations Board)

&Social Media


NLRB & SOCIAL MEDIA (cont’d)

NLRA is governed by the NLRB (National Labor Relations Board). NLRA states that employees have the right to engage in “concerted

activity”. Concerted activities are those “engaged in with or without

authority of other employees and not solely by and on behalf of the employee himself”.

Individual action is concerted if it is engaged in initiating or inducing group action.

“An employer is not to interfere with, restrain or coerce employees in the exercise of the rights guaranteed” regarding concerted activity.


NLRB & SOCIAL MEDIA (cont’d)

Examples:

Two or more employees addressing their employer about improving their working conditions and pay.

One employee speaking to his/her employer on behalf of himself/herself and one or more co-workers about improving working conditions.

Two or more employees discussing pay or other work related issues with each other.


MA AND SOCIAL MEDIA◦ MA Law “A person shall have a right against unreasonable,

substantial or serious interference with his privacy.”

◦ Conflict exists between an employer’s right to monitor use of its equipment and investigate misconduct and an employee’s right to privacy .


SOCIAL MEDIA RISKS For Organizations:

◦ Viruses and malware — Data leakage/theft.√ Prevention: Make sure antivirus and anti-malware controls are installed

and updated daily. Create updating policies, standards, and training.

◦ Lack of control over corporate content — When employees post wrong or improper information on social media sites.

√ Prevention: Establish clear policies that dictate what can and cannot be shared. Create the capability to capture and log all communications.

◦ Mismanagement of electronic communications that may be impacted by retention regulations or e-discovery.

√ Prevention: Establish policies and processes that ensure all communications are tracked.


SOCIAL MEDIA RISKSFacebook “Liking” and Termination

Bland v. Roberts – Employees terminated for supporting an incumbent sheriff’s opposition, which included “liking” the candidate’s campaign Facebook page.

On Appeal, the Court deemed that clicking on the “like” button was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

Therefore, clicking the “like” button on a Facebook page is Constitutionally protected speech.

This case reaches the common-sense conclusion that free-speech rights extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet.

Any Questions?



Thank You

(c) 2013 all rights reserved by lauren brenner, sphr. the information contained herein is general...

Documents

legal advice

specific matter

employees b

employee files

employees d

retention of employee

employees personnel

complaint c