OVERVIEW OF FEDERAL HUMAN RESOURCE LAWS
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Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Immigration Reform and Control Act, Pregnancy Discrimination Act and Civil Rights Act of 1991 (also included state, federal, county and municipal anti-discrimination laws): Prohibits discriminatory employment practices based on race, color, sex, religion, national origin.
* Sexual harassment is not mentioned in federal statutes. The case law developed that concept as a form of gender discrimination.
* State laws are usually more inclusive than the federal statutes, forbidding discrimination against such things as sexual orientation, obesity, smoking, etc.
Fair Labor Standards Act (Includes Equal Pay Act): Sets minimum wages and establishes when overtime must be paid.
Family and Medical Leave Act: Federal law requires employers with 50 or more employees within a 75-mile radius to grant unpaid medical leave upon birth or adoption of a child or serious medical condition of an employee or family member.
Uniformed Services Employment and Re-Employment Rights Act: Requires employers to re-hire those who left employment to enter the military and bars discrimination against same.
National Labor Relations Act: Forbids discrimination against those who are members of a union or who advocate such membership and protects concerted activities of both union and non-union employees.
State and federal “whistleblower acts”: Forbid termination of, or retaliation against, employees of employers that are contractors with state or federal government after an employee has reported contracting fraud or abuses.
Fair Credit Reporting Act: Employers must notify employees when they conduct background investigations and when they fail to hire or promote based on information in a retail credit report.
Employee Polygraph Protection Act: Regulates use of lie detector tests for pre-employment purposes as well as in the investigation of employee dishonesty.
Retaliation: Many of the statutes listed above prohibit employer retaliation against an employee for having asserted a right or made a claim, but so do many other unrelated statutes, such as the workers' compensation, disability benefits and unemployment compensation laws; the Occupational Safety and Health Act; the Employee Retirement Income Security Act; and the Judiciary and Judicial Procedure Act (which prohibits retaliation against employees for serving on federal juries).
Source: David G. Condon; American Agent & Broker; 2000
ILLEGAL INTERVIEW QUESTIONS
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Various federal, state, and local laws regulate the questions a prospective employer can ask you. An employer's questions — on the job application, in the interview, or during the testing process — must be related to the job for which an applicant is applying. For the employer, the focus must be: "What do I need to know to decide whether or not this person can perform the functions of this job?"
Types of questions
Subject: Nationality
Illegal: Are you a U.S. citizen?; Where were you/your parents born?; What is your "native tongue?"
Legal: Are you authorized to work in the United States?; What languages do you read, speak or write fluently? (This question is okay, as long as this ability is relevant to the performance of the job.)
Subject: Age
Illegal: How old are you?; When did you graduate from college?; What is your birthday?
Legal: Are you over the age of 18?
Subject: Marital/Family status
Illegal: What's your marital status?; Who do you live with?; Do you plan to have a family?; When?; How many kids do you have?; What are your child care arrangements?
Legal: Would you be willing to relocate if necessary?; Travel is an important part of the job. Would you be willing to travel as needed by the job? (This question is okay, as long as all applicants for the job are asked it.); This job requires overtime occasionally. Would you be able and willing to work overtime as necessary? (Again, this question okay as long as all applicants for the job are asked it.)
Subject: Affiliations
Illegal: To what clubs or social organizations do you belong?
Legal: Do you belong to any professional or trade groups or other organizations that you consider relevant to your ability to perform this job?
Subject: Personal
Illegal: How tall are you?; How much do you weigh?
Legal: Are you able to lift a 50-pound weight and carry it 100 yards, as that is part of the job? (Questions about height and weight are not acceptable unless minimum standards are essential to the safe performance of the job.)
Subject: Disabilities
Illegal: Do you have any disabilities?; Please complete the following medical history.; Have you had any recent or past illnesses or operations? If yes, list and give dates.; What was the date of your last physical exam?; How's your family's health?; When did you lose your eyesight?
Legal: Are you able to perform the essential functions of this job with or without reasonable accommodations? (This question is okay if the interviewer thoroughly described the job.)
(NOTE: As part of the hiring process, after a job offer has been made you will be required to undergo a medical exam. Exam results must be kept strictly confidential, except medical/safety personnel may be informed if emergency medical treatment is required, and supervisors may be informed about necessary job accommodations, based on the exam results.)
Subject: Arrest record
Illegal: Have you ever been arrested?
Legal: Have you ever been convicted of _____? (The crime should be reasonably related to the performance of the job in question.)
Subject: Military
Illegal: If you've been in the military, were you honorably discharged?; In what branch of the Armed Forces did you serve?
Legal: What type of training or education did you receive in the military?
Source: USA Today; Illegal Interview Questions, 2001
MOST COMMON HR PROBLEMS
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· Failure to have employee handbook
· Asking illegal questions during employment interview
· Employees fail to have accurate job descriptions
· Failing to drug test
· Failing to properly pay employees
· Failing to educate employees on sexual harassment
· Failing to document performance
· Failing to provide performance appraisals
· Failing to take time with terminations
Source: Paul Klein, Esq.; Employment Law for Managers; 2003
CONDUCTING JOB TERMINATIONS
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Rules for Terminating an Employee
1. Terminations should be restricted to job performance issues, which may include productivity, work quality, or improper jobsite behavior.
2. Improper jobsite behavior may include:
a. violation of company policies,
b. unsafe conduct,
c. failure to follow orders,
d. theft,
e. under the influence of drugs, alcohol, etc.
IMPORTANT: Discussions with the employee during the termination process should be limited to these job performance issues only.
3. You may not discharge or discipline an employee for, and there should be no reference made to the following actions which are protected by law during the termination process:
a. filing an unemployment or workmen’s compensation claim,
b. taking time off for jury duty,
c. refusing to violate a state or federal law,
d. participating in protected union activities, including enforcing terms of the union agreement
4. Make sure you have properly documented prior disciplinary action taken.
5. Terminate with privacy and respect, and maintain confidentiality after termination action.
Preparing and Conducting a Job Termination – Dos and Don’ts
1. Get organized and have your reasons in writing.
2. Where possible have more than one member of management present.
3. Begin with the purpose of the meeting and avoid small talk.
4. Emphasize the decision is final and will not be changed.
5. Keep the meeting short and to the point.
6. Conclude the meeting by standing and wishing the employee well.
7. Do not over talk the issue or attempt to justify your decision.
8. Do not offer advice, your opinion or your feelings on the issue.
9. Do not gloss over the difficult parts of the termination issue.
10. Do not make negative statements about the Company, the union or other employees.
11. Do not react to threats.
12. Do not touch the employee.
13. Do not raise your voice.