Legal Issues In Human Resources

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Presentation regarding the various legal aspects concerning Human Resources

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  • 1.Legal Issues in Human Resources
    Heather Clark Reynolds, JD

2. Required Posters
Federal and State Laws
Pre-employment and hiring process
Employment
Post-employment
Overview
3. Required Posters
Indiana Minimum Wage Poster
Indiana Workforce Development Act
Indiana Equal Opportunity
Workers Compensation Notice
Indiana OSHA
Indiana Child Labor Law
Federal Fair Labor Standards Act
Workers with Disabilities
Migrant and Seasonal Agricultural Workers
Minimum wage
Family and Medical Leave Act
Federal Equal Opportunity new poster as of 11/1/09 (GINA)
Employee Polygraph Act
http://www.in.gov/dwd/2428.htm- provides free copies
4. Age Discrimination & Employment Act
Pregnancy Discrimination Act
Family & Medical Leave Act of 1993
Americans With Disabilities Act
Rehabilitation Act of 1973
Executive Orders 11246 and 11701
Fair Labor Standards Act (Minimum wage, Child Labor & Overtime)
Davis-Bacon Act
Walsh-Healy Act
Portal-To-Portal Act (When travel time is compensable)
Federal and State Laws
5. Equal Pay Act
Immigration Reform & Control Act
WARN: Plant Closing Bill
Drug-Free Workplace Act
Polygraph Protection Act
Fair Credit Reporting Act
National Labor Relations Act
USEERA (Veterans Re-Employment Act)
COBRA and HIPPA notification requirements
Civil Rights Acts of 1964 & 1991
Federal and State Laws (cont)
6. Interviewing
Investigating
Discrimination
Testing
Independent Contractors
Pre-employment /Hiring Process
7. Questions that are prohibited:
Whether the applicant has children
or intends to have children.
Marital status of applicant.
Applicant's race.
Applicant's religion.
Applicant's sexual preference.
Applicant's age (other than inquiring whether over age of 18).
Whether applicant suffers from a disability.
Applicant's citizenship status.
Questions concerning drug or alcohol use by the applicant
Interviewing
8. Have you ever had or been treated for any of the following conditions or diseases?
List any conditions or diseases for which you have been treated in the past three years.
Do you suffer from any health-related condition that might prevent you from performing this job?
How many days were you absent from work because of illness last year?
Do you have any physical defects that preclude you from doing certain types of things?
Do you have any disabilities or impairments that might affect your ability to do the job?
Are you taking any prescribed drugs?
Have you ever been treated for drug addiction or alcoholism?
Have you ever filed a worker's compensation claim?
Questions You Should Never Ask
9. Can you perform all of the job functions?
How would you perform the job functions? (If you want to ask any applicant this question, you should ask all applicants this question.)
Can you meet my attendance requirements?
What are your professional certifications and licenses?
Questions You Can Ask
10. Inquires are related to the job
Ask for consent
Be reasonable
Check the rules for specific instances
Investigating
11. School transcripts
Credit reports
Bankruptcy
Criminal background check
Workers comp records
Medical records
Military records
Driving records
Investigating (special rules)
12. Civil Rights race, sex, color, national origin, religion
Age
Disability
Servicemen
Discrimination who are protected parties?
13. Refuse to hire
Discipline
Firing
Deny training
Fail to promote
Pay less / demote
Harass
Disparte impact
Discrimination what is it?
14. Is employee in a protected class?
Is employer subject to anti-discrimination laws?
Is employers conduct discriminatory?
Is the reason the employer discriminated violate the law?
Discrimination what must be proven?
15. Skills Test
Aptitude Test
Personality Test
Lie detectors / honesty test
Medical tests
Drug Tests
Be very cautious testing an applicant with disabilities!!! You are measuring skills required for the job, not their disability
Testing
16. Benefits
Save you money
Offers flexibility
Saves on liability
Allows you to test the waters
Independent Contractors
17. Disadvantages
Less control over workers
Workers come and go
Right to fire depends on
agreement
May be liable for injuries
IC suffers on job Workers comp wont protect you here
May not own copyrighted materials
May face risk of government audits
Independent Contractors
18. Make sure you have a written agreement!
Make sure you get copies of documents
Have them fill out a questionnaire
Look at listed provisions in handout
Be careful of the IRS!!!!
Independent Contractors
19. Can be used against you in 1st and 3rd party lawsuits
Can invalidate some insurance provisions
The test is reasonably foreseen actions of the employee/contractor
Investigate
Follow up on references
Written policy
Negligent Hiring
20. Employment
21. Employment at will
Handbooks
Employee files
Performance Evaluations
Employee agreements
Workplace safety
Workers compensation
Sexual harassment
Discrimination
Wrongful termination
Negligent Entrustment
Employee Privacy
Exempt v. non exempt
Breaks
Employment Issues
22. Law in Indiana is that you can fire anyone at any time for any reason, UNLESS that reason is illegal.
What is illegal? Cant fire someone
If they are exercising a statutory
right
Discrimination
Refusing to do something illegal
Employment at Will
23. Why do you need them?
Good business practice
Sets boundaries and expectations
Communicates directly to employee no misunderstandings
CYA
Handbooks
24. Make sure you have certain documents filed in this folder
Do not put medical info/records or I-9 forms in here!!
Keep files secure and confidential
Be cautious what you place in hereremember employees
have a right to view these files!
Employee files
25. Why have them?
Sets individual goals, expectations, standards
Open communication with employee
Measures employee performance
It CYA!!!!
Performance Evaluations
26. Non compete agreements
Non disclosure agreements
Confidentiality agreement
Non solicitation agreement
Employee Agreements
27. OSHA - role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education
Many workplace injuries you wouldnt think of
H1N1
Ergonomics
Workplace violence
Motor vehicle safety
Workplace Safety
28. Workers Compensation protects employers from civil liability when employee gets injured on job
Is mandatory
Employers pay,
Not employees!
Fault is irrelevant!!
Workplace Injury
29. When submission to or rejection of unwanted advances, to another employee or witnessed by an employee, explicitly or implicitly affects the individuals employment, unreasonably interferes with an individuals work performance or creates an intimidating,hostile or offensive work environment
Examples: rubbing shoulders, lewd comments, conduct between two other employees, email jokes, pictures posted
Sexual Harassment
30. Illegal to consider certain characteristics with regards to promotions, job assignments, wages, termination, etc.
Discrimination
31. Refusing to break the law
Retaliation for filing discrimination or safety claim
Taking leave under the FMLA
Not following own stated rules and policies
For reasons not contained in the employment contract, if one exists
Wrongful termination
32. Failing to remove an employee from the position of authority or responsibilityafter it becomes apparent that the misuse of authority poses a danger to others
Negligently providing an employee an object (dangerous instrumentality) which then causes injury to a 3rd party
Negligent Entrustment/retention
33. Surveillance not a problem so long as employee does not have an expectation of privacy (i.e., bathroom stalls)
Personal appearance reasonable guidelines
Off duty behavior
Union activity off limits
Political / religious beliefs off limits unless employee brings it to work, than subject to discipline
Moonlighting only if it conflicts with employers own business
Marital status off limits
Illegal activities cannot terminate unless activity concretely impacts employers business or workplace
Employee Privacy
34. Drug and Alcohol testing Supreme court said both blood and urine testing were minimally invasive so long as:
Not harmful to applicant or employee
Conducted in employment environment
Not directly observable by testor
Searches
Review best practices
contained in handout
Employee Privacy cont.
35. Phone calls
Emails
Voice mails
Internet use
Social media
Texting / cell phones
Employee Privacy - communications
36. How does an employer protect itself?
Adopt a policy
Monitor only for legitimate reasons
Be reasonable
Communications
37. Follows the rules of the FLSA
Dont fall into the trap of comp time
Child labor laws differ fr