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Legal Issues in Human ResourcesHeather Clark Reynolds, JD

Required PostersFederal and State LawsPre-employment and hiring processEmploymentPost-employmentOverview

Required PostersIndiana Minimum Wage Poster Indiana Workforce Development Act Indiana Equal Opportunity Workers Compensation NoticeIndiana OSHAIndiana Child Labor LawFederal Fair Labor Standards ActWorkers with DisabilitiesMigrant and Seasonal Agricultural WorkersMinimum wageFamily and Medical Leave ActFederal Equal Opportunity – new poster as of 11/1/09 (GINA)Employee Polygraph Acthttp://www.in.gov/dwd/2428.htm - provides free copies

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 & 1991Federal and State Laws (cont)

InterviewingInvestigatingDiscriminationTestingIndependent ContractorsPre-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 applicantInterviewing

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 jobAsk for consentBe reasonableCheck the rules for specific instancesInvestigating

School transcriptsCredit reportsBankruptcyCriminal background checkWorkers comp recordsMedical recordsMilitary recordsDriving recordsInvestigating (special rules)

Civil Rights – race, sex, color, national origin, religionAgeDisabilityServicemen Discrimination – who are protected parties?

Refuse to hireDisciplineFiringDeny trainingFail to promotePay less / demoteHarassDisparte impactDiscrimination – what is it?

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?

Skills TestAptitude TestPersonality TestLie detectors / honesty testMedical testsDrug TestsBe very cautious testing an applicant with disabilities!!! You are measuring skills required for the job, not their disabilityTesting

BenefitsSave you moneyOffers flexibilitySaves on liabilityAllows you to “test” the watersIndependent Contractors

DisadvantagesLess control over workersWorkers come and goRight to fire depends on agreementMay be liable for injuries IC suffers on job – Workers comp won’t protect you hereMay not own copyrighted materialsMay face risk of government auditsIndependent Contractors

Make sure you have a written agreement!Make sure you get copies of documentsHave them fill out a questionnaireLook at listed provisions in handout Be careful of the IRS!!!!Independent Contractors

Can be used against you in 1st and 3rd party lawsuitsCan invalidate some insurance provisionsThe test is “reasonably foreseen” actions of the employee/contractorInvestigateFollow up on referencesWritten policyNegligent Hiring

Employment at willHandbooksEmployee filesPerformance EvaluationsEmployee agreementsWorkplace safetyWorkers compensationSexual harassmentDiscriminationWrongful terminationNegligent EntrustmentEmployee PrivacyExempt v. non exemptBreaksEmployment 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 someoneIf they are exercising a statutory rightDiscriminationRefusing to do something illegalEmployment at Will

Why do you need them?Good business practiceSets boundaries and expectationsCommunicates directly to employee – no misunderstandingsCYAHandbooks

Make sure you have certain documents filed in this folderDo not put medical info/records or I-9 forms in here!!Keep files secure and confidentialBe cautious what you place in here…remember employees have a right to view these files!Employee files

Why have them?Sets individual goals, expectations, standardsOpen communication with employeeMeasures employee performanceIt CYA!!!!Performance Evaluations

Non compete agreementsNon disclosure agreementsConfidentiality agreementNon solicitation agreementEmployee 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 educationMany workplace injuries you wouldn’t think ofH1N1ErgonomicsWorkplace violenceMotor vehicle safetyWorkplace Safety

Worker’s Compensation –protects employers from civil liability when employee gets injured on jobIs mandatoryEmployers 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 environmentExamples: rubbing shoulders, lewd comments, conduct between two other employees, email jokes, pictures postedSexual Harassment

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

Refusing to break the lawRetaliation for filing discrimination or safety claimTaking leave under the FMLANot following own stated rules and policiesFor reasons not contained in the employment contract, if one existsWrongful 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 othersNegligently providing an employee an object (dangerous instrumentality) which then causes injury to a 3rd partyNegligent 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 behaviorUnion activity – off limitsPolitical / religious beliefs – off limits unless employee brings it to work, than subject to disciplineMoonlighting – only if it conflicts with employers own businessMarital status – off limitsIllegal activities – cannot terminate unless activity concretely impacts employers business or workplaceEmployee Privacy

Drug and Alcohol testing – Supreme court said both blood and urine testing were minimally invasive so long as:Not harmful to applicant or employeeConducted in employment environmentNot directly observable by testorSearchesReview best practices contained in handoutEmployee Privacy – cont.

Phone callsEmailsVoice mailsInternet useSocial mediaTexting / cell phonesEmployee Privacy - communications

How does an employer protect itself?Adopt a policyMonitor only for legitimate reasonsBe reasonableCommunications

Follows the rules of the FLSADon’t fall into the trap of comp timeChild labor laws differ from general rules relating to adult workersExempt v. non exempt

Teens / child laborer laws differBreastfeeding provisionNo provision in Indiana for providing breaks to workers under 20 minutesBreaks

Indiana received national attention last year when it discussed the concept of “workplace bullying”Similar to sexual harassment guidelinesWorkplace Bullying

UnemploymentSeveranceReferencesTerminationPost employment

Employees terminated without cause are eligible for 26 weeks out of 52 week benefit periodEmployees who quit or are fired for misconduct are not eligibleVisit the State of Indiana website for detailed infowww.in.gov/dwdUnemployment

Not required unless WARNLead an employee to believe he/she would get itEmployment agreementOral agreementHandbook Given it to other employeesWhy? Soften the blow of termination AND helps avoid lawsuitsSeverance

Warn an employee if it will not be favorableKeep it briefStick to the factsDon’t be spitefulDon’t give false flatteryDesignate one employee to handle referencesINSIST ON A WRITTEN RELEASEReferences

Think it throughIs the firing for a valid reason?Don’t get personalPaper trail everything!!!Keep it confidential and privateBe frankAsk for all access keys and passwordsTERMINATION

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Legal Issues In Human Resources

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Legal Issues In Human Resources