Human Resources Human Resources ManagementManagement

Federal Legislation Affecting Federal Legislation Affecting EmploymentEmployment

Civil Rights Act of 1964Civil Rights Act of 1964

““prohibits discrimination on the basis of prohibits discrimination on the basis of race, color, religion, sex, pregnancy, or race, color, religion, sex, pregnancy, or natural origin”natural origin”

Civil Rights Act of 1991Civil Rights Act of 1991

a) easier to suea) easier to sue

b) smaller business feel pressureb) smaller business feel pressure

to keep more detailed records etc.to keep more detailed records etc.

c) shifts legal burden to the employerc) shifts legal burden to the employer

d) employers have to prove that d) employers have to prove that discriminatory practices are “job-related for discriminatory practices are “job-related for the positions in question and consistent the positions in question and consistent with business necessity”with business necessity”

Sexual HarassmentSexual Harassment

Form of sex discrimination that violates Form of sex discrimination that violates Title VII of the Civil Rights Act of 1964Title VII of the Civil Rights Act of 1964

““unwelcome sexual advances, requests for unwelcome sexual advances, requests for sexual favors, and verbal or physical sexual favors, and verbal or physical conduct of a sexual nature”conduct of a sexual nature”

(The U.S. Equal Employment Opportunity (The U.S. Equal Employment Opportunity Commission, 2002)Commission, 2002)

Sexual HarassmentSexual Harassment

““this conduct explicitly or implicitly affects this conduct explicitly or implicitly affects an individual’s employment, unreasonably an individual’s employment, unreasonably interferes with an individuals work interferes with an individuals work performance or creates and intimidating, performance or creates and intimidating, hostile or offensive work environment”hostile or offensive work environment”

(The U.S. Equal Employment Opportunity (The U.S. Equal Employment Opportunity Commission, 2002)Commission, 2002)

Two Types of Sexual HarrassmentTwo Types of Sexual Harrassment

1) 1) quid pro quo:quid pro quo: the more classic type the more classic type and the one that most employers are not and the one that most employers are not going to be able to protect themselves going to be able to protect themselves against if it comes from a against if it comes from a supervisor….there is no defense from thatsupervisor….there is no defense from that

2) hostile work environment: has become 2) hostile work environment: has become more prevalent in the past 10 yearsmore prevalent in the past 10 years

(Scott Gilligan, AFD, 12/04)(Scott Gilligan, AFD, 12/04)

LiabilityLiability

quid pro quo: quid pro quo: if the supervisor, manager or if the supervisor, manager or owner is engaged in it, they are going to be owner is engaged in it, they are going to be liableliable The owner is going to be liable if a manager is The owner is going to be liable if a manager is

harassing a low-level worker, even if the owner harassing a low-level worker, even if the owner doesn’t know about itdoesn’t know about it

If the worker brings a claim against the owner, the If the worker brings a claim against the owner, the owner will be responsible if there was proof that there owner will be responsible if there was proof that there was a demand made for sexual favors, and an was a demand made for sexual favors, and an adverse employment action was takenadverse employment action was taken

(Scott Gilligan, AFD, 12/04)(Scott Gilligan, AFD, 12/04)

Liability (cont’d)Liability (cont’d)

Hostile Work Environment: the owner Hostile Work Environment: the owner can’t be responsible unless they know can’t be responsible unless they know about it….however they have to put a about it….however they have to put a mechanism in place to allow an employee mechanism in place to allow an employee to complain about itto complain about it This underscores the importance of having a This underscores the importance of having a

written sexual harassment policy….if an written sexual harassment policy….if an employee doesn’t take advantage of that, employee doesn’t take advantage of that, then they have no claim against the company.then they have no claim against the company.

(Scott Gilligan, AFD, 12/04)(Scott Gilligan, AFD, 12/04)

““A written sexual harassment policy is the A written sexual harassment policy is the first line of defense.”first line of defense.”

(Scott Gilligan, AFD, 12/04)(Scott Gilligan, AFD, 12/04)

Victim’s ResponsibilitiesVictim’s Responsibilities

Directly inform the harasser.Directly inform the harasser.

Use any employer complaint mechanism Use any employer complaint mechanism or grievance system available.or grievance system available.

Investigation of AllegationsInvestigation of Allegations

EEOC looks at the whole record:EEOC looks at the whole record: 1) the circumstances (nature of the sexual 1) the circumstances (nature of the sexual

advances)advances)

2) the context in which the alleged incidents 2) the context in which the alleged incidents occurredoccurred

Suggestions for EmployersSuggestions for Employers

Prevention is the best tool to eliminate Prevention is the best tool to eliminate sexual harassment in the workplace.sexual harassment in the workplace. 1) stated and written policy1) stated and written policy 2) procedures for reporting, documenting, 2) procedures for reporting, documenting,

and following up on complaintsand following up on complaints 3) clearly state investigations will be 3) clearly state investigations will be

confidentialconfidential Clearly communicate that sexual harassment Clearly communicate that sexual harassment

will not be toleratedwill not be tolerated

Employer’s Suggestions (cont’d)Employer’s Suggestions (cont’d)

5) train managers and staff5) train managers and staff

6) take employee comments seriously6) take employee comments seriously

7) document and report findings7) document and report findings

8) consult an attorney before acting on 8) consult an attorney before acting on your findingsyour findings

Employee FunctionsEmployee Functions

Gear the function toward something that Gear the function toward something that will not increase the temptation.will not increase the temptation.

Invite spouses and significant others to the Invite spouses and significant others to the event.event.

Limit alcohol.Limit alcohol.

Age Discrimination in Employment Age Discrimination in Employment Act of 1967Act of 1967

““requires employer to treat applicants and requires employer to treat applicants and employees equally regardless of age”employees equally regardless of age”

Equal Pay Act of 1963Equal Pay Act of 1963“ “ prohibits sex discrimination in the prohibits sex discrimination in the payment of wages”payment of wages”““outlaws discrimination in pay against outlaws discrimination in pay against those who are over forty years old”those who are over forty years old”

Equal Employment Opportunity Act Equal Employment Opportunity Act of 1987of 1987

““the absence of employment the absence of employment discrimination based on race, color, discrimination based on race, color, religion, sex, or natural origin”religion, sex, or natural origin”

Vietnam Era VeteransVietnam Era Veterans Readjustment Act of 1974Readjustment Act of 1974

““outlaws discrimination in employment outlaws discrimination in employment against Vietnam Era veterans”against Vietnam Era veterans”

Immigration Reform Act/Immigration Reform Act/Immigration Law of 1986Immigration Law of 1986

““requires employers to check job requires employers to check job applicants’ papers to be sure they are applicants’ papers to be sure they are either U.S. citizens or aliens authorized to either U.S. citizens or aliens authorized to work in the United States”work in the United States”

Form I-9Form I-9

Occupational Safety and Health Act Occupational Safety and Health Act of 1970 (OSHA)of 1970 (OSHA)

““a governmental agency with the a governmental agency with the responsibility for regulatory and responsibility for regulatory and enforcement of safety and health matters enforcement of safety and health matters for most United States employees; an for most United States employees; an individual state OSHA agency may individual state OSHA agency may supersede the U.S. Department of Labor supersede the U.S. Department of Labor OSHA regulations”OSHA regulations”

Americans with Disabilities Act of Americans with Disabilities Act of 19901990

employment provisionsemployment provisions

funeral homes are defined as public funeral homes are defined as public accommodationsaccommodations

buildings built or occupied after January buildings built or occupied after January 1993 must comply1993 must comply

readily achievable/undue hardship testreadily achievable/undue hardship test

Intended to be self-enforcingIntended to be self-enforcing

ADA PrioritiesADA Priorities

access from public sidewalks, parking etc.access from public sidewalks, parking etc.access to areas where goods and services are available access to areas where goods and services are available to the publicto the publicample aisle spaceample aisle spaceassistive listening devicesassistive listening devicesremove obstructionsremove obstructionsrestroom facilitiesrestroom facilitiescarpet pilecarpet piledrinking fountains, public phonesdrinking fountains, public phonesraised markings (Braille) on signsraised markings (Braille) on signsaccessible door hardwareaccessible door hardware

Fair Labor Standards ActFair Labor Standards Act(Wage and Hour Law)(Wage and Hour Law)

Revised August 23, 2004Revised August 23, 2004

““outlaws discriminatory practices in pay; requires outlaws discriminatory practices in pay; requires employers to pay a minimum wage to employers to pay a minimum wage to employees, and to pay a minimum of one and employees, and to pay a minimum of one and one-half times the regular rate for any hours one-half times the regular rate for any hours beyond forty worked in a week”beyond forty worked in a week”

Covers: minimum wage, equal pay, overtime Covers: minimum wage, equal pay, overtime pay, record keeping, child labor standardspay, record keeping, child labor standards

Threshold Test for Eligible Threshold Test for Eligible EmployeesEmployees

1) must earn over $455/week1) must earn over $455/week

- this test does not apply to outside - this test does not apply to outside salespeoplesalespeople

2) must fit into an exemption as described 2) must fit into an exemption as described by the U.S. Department of Labor to qualify by the U.S. Department of Labor to qualify for a salary basis compensation paymentfor a salary basis compensation payment

Areas of ExemptionsAreas of Exemptions

ExecutiveExecutive

AdministrativeAdministrative

ProfessionalProfessional

Highly CompensatedHighly Compensated

Outside Sales PersonOutside Sales Person

The new rule does not exempt pay for The new rule does not exempt pay for manual laborers. Those who were exempt manual laborers. Those who were exempt before are still exempt.before are still exempt.

DOL Statement on Qualifications DOL Statement on Qualifications for FD Professional Exemptionfor FD Professional Exemption

““only licensed FDs and embalmers who only licensed FDs and embalmers who are licensed by and working in a state that are licensed by and working in a state that requires the successful completion of 4 requires the successful completion of 4 academic years of pre-professional study, academic years of pre-professional study, including graduation from a college of including graduation from a college of mortuary science accredited by ABFSE mortuary science accredited by ABFSE qualify……the mortuary school education qualify……the mortuary school education must be a 60 hour or two-year curriculum”must be a 60 hour or two-year curriculum”

Independent contractorIndependent contractor

RecordkeepingRecordkeeping

Overtime PayOvertime Pay

EvaluationEvaluation

TerminationTermination

Personnel ManualPersonnel Manual