Legal Issues in Human ResourcesHeather Clark Reynolds, JD

Required Posters Federal and State Laws Pre-employment and hiring process Employment Post-employment

Overview

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

Required Posters

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

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)

InterviewingInvestigatingDiscriminationTestingIndependent Contractors

Pre-employment / Hiring Process

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

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

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

Inquires are related to the job Ask for consent Be reasonable Check the rules for specific

instances

Investigating

School transcripts Credit reports Bankruptcy Criminal background check Workers comp records Medical records Military records Driving records

Investigating (special rules)

Civil Rights – race, sex, color, national origin, religion

Age Disability Servicemen

Discrimination – who are protected parties?

Refuse to hire Discipline Firing Deny training Fail to promote Pay less / demote Harass Disparte impact

Discrimination – what is it?

1. Is employee in a protected class?

2. Is employer subject to anti-discrimination laws?

3. Is employers conduct discriminatory?

4. Is the reason the employer discriminated violate the law?

Discrimination – what must be proven?

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

Benefits Save you money Offers flexibility Saves on liability Allows you to “test” the waters

Independent Contractors

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

won’t protect you here May not own copyrighted materials May face risk of government audits

Independent Contractors

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

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

Employment

Employment at willHandbooksEmployee filesPerformance

EvaluationsEmployee

agreementsWorkplace safetyWorkers

compensation

Sexual harassmentDiscriminationWrongful

terminationNegligent

EntrustmentEmployee PrivacyExempt v. non

exemptBreaks

Employment Issues

Law in Indiana is that you can fire anyone at any time for any reason, UNLESS that reason is illegal. What is illegal? Can’t fire someone

If they are exercising a statutory right Discrimination Refusing to do something illegal

Employment at Will

Why do you need them? Good business practice Sets boundaries and expectations Communicates directly to employee – no

misunderstandings CYA

Handbooks

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 here…

remember employees have a right to view these files!

Employee files

Why have them? Sets individual goals, expectations,

standards Open communication with employee Measures employee performance It CYA!!!!

Performance Evaluations

Non compete agreements Non disclosure agreements Confidentiality agreement Non solicitation agreement

Employee Agreements

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 wouldn’t think of H1N1 Ergonomics Workplace violence Motor vehicle safety

Workplace Safety

Worker’s Compensation –protects employers from civil liability when employee gets injured on job

Is mandatory Employers pay, Not employees!

Fault is irrelevant!!

Workplace Injury

When submission to or rejection of unwanted advances, to another employee or witnessed by an employee, explicitly or implicitly affects the individual’s employment, unreasonably interferes with an individual’s 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

Illegal to consider certain characteristics with regards to promotions, job assignments, wages, termination, etc.

Discrimination

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

Failing to remove an employee from the position of authority or responsibility after 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

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

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.

Phone calls Emails Voice mails Internet use Social media Texting / cell phones

Employee Privacy - communications

How does an employer protect itself?1. Adopt a policy2. Monitor only for legitimate reasons3. Be reasonable

Communications

Follows the rules of the FLSA Don’t fall into the trap of comp time Child labor laws differ from general

rules relating to adult workers

Exempt v. non exempt

Teens / child laborer laws differ Breastfeeding provision No provision in Indiana for providing

breaks to workers under 20 minutes

Breaks

Indiana received national attention last year when it discussed the concept of “workplace bullying”

Similar to sexual harassment guidelines

Workplace Bullying

UnemploymentSeveranceReferencesTermination

Post employment

Employees terminated without cause are eligible for 26 weeks out of 52 week benefit period

Employees who quit or are fired for misconduct are not eligible

Visit the State of Indiana website for detailed info www.in.gov/dwd

Unemployment

Not required unless WARN Lead an employee to believe

he/she would get it Employment agreement Oral agreement Handbook Given it to other employees

Why? Soften the blow of termination AND helps avoid lawsuits

Severance

Warn an employee if it will not be favorable

Keep it brief Stick to the facts Don’t be spiteful Don’t give false flattery Designate one employee to handle references INSIST ON A WRITTEN RELEASE

References

Think it through Is the firing for a valid reason? Don’t get personal Paper trail everything!!! Keep it confidential and private Be frank Ask for all access keys and passwords

TERMINATION

Questions?