Hr 101 for managers and supervisors

HR 101 for Managers

Kathryn Carlson

Director, HR Products

October 27, 2011

Questions

• If you have questions during the presentation, please submit them using the “Questions” feature

• Questions will be answered at the end of the webinar or an emailed response will be provided

EEOC (Equal Opportunity Commission) reports indicate discrimination charges increased significantly. Nearly 100,000 charges were filed last year with the EEOC, the most ever. The EEOC filed 250 lawsuits and collected over $400 million in damages. The most frequently-filed charges involved claims of retaliation (first time in the top spot) and race. There also were significant percentage increases in the categories of religion, disability and age discrimination charges.

The DOL estimates that more than 80% of companies are out of compliance with federal and state wage and hour laws.

One in three companies has been hit with a wage-and-hour claim in the past year (ETL, Inc).

Compliance with the Law Is Critical

Five Legal Terms You Need to Know

DiscriminationWhen someone is denied a job or position for non job related reasons

Equal Employment OpportunityThe right to employment and advancement without regard to race, religion, sex, color or national origin

Affirmative ActionAn effort to give preference in employment to women or other minoritiesEmployment criteria justified by capacity to perform a job

Comparable WorthPersons performing jobs of similar worth should receive comparable pay

Bona-fide Occupational QualificationsEmployment criteria justified by capacity to perform a job

Discrimination and Employment Rights

Civil Rights Act of 1866– Supports charges of race and national origin

discrimination– Claimant must establish intent to discriminate on the

part of the employer

Civil Rights Act of 1964– Title VII of this act prohibits discrimination on the

basis of race, creed, religion, sex or national origin– Intent need not be proved but discriminatory effect

established


Uniformed Services Employment and Reemployment Rights Act (USERRA)– Prohibits making past, present, or future active or

reserve military service a factor in employment decisions

Executive Order 11246– Requires businesses who do business with federal

government to take affirmative action in hiring, training, and promoting women and minorities

The Age Discrimination in Employment Act of 1967 (ADEA)– Protects workers 40 and up (as amended)


The Rehabilitation Act of 1973– Section 501 prohibits discrimination against persons

with disabilities by contractors doing business with the federal government

The American with Disabilities Act of 1990 (ADA)– Prohibits all employers from discriminating against

employees or job candidates with disabilities– Must provide reasonable accommodations

Pregnancy Discrimination Act (PDA) of 1978


Religious Discrimination Guidelines– Requires employers to make reasonable effort to

accommodate a person’s religious practices as long as they don’t create an undue hardship

National Origin Discrimination Guidelines– Preclude employment denial because of ancestry,

place of origin, or cultural/linguistic characteristics

The Civil Rights Act of 1991– “Make-whole” remedies to discrimination

• Back pay and reinstatement allowed– Employer must prove lack of discrimination

• Seeks to remove barriers to advancement of women and minorities


• Congress recently amended the Americans with Disabilities Act (ADA) with the Americans With Disabilities Act Amendments Act (ADAAA). Under the newly-amended law, it is easier for employees to show a disability exists.

• GINA (Genetic Information Nondiscrimination Act 2008) it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors and verbal or physical conduct of a sexual nature is harassment when– Submission to such conduct is a condition of

employment (Quid Pro Quo)– Submission of rejection of such conduct becomes

basis for employment decision (Quid Pro Quo)– Conduct has the effect of creating intimidating or

offensive environment (Hostile Environment)

Pay and Benefits

The Fair Labor Standards Act (FLSA)– Establishes minimum wage, maximum hours and overtime

pay– Employees may be exempt or nonexempt

The Employee Retirement Income Security Act (ERISA) of 1974– Establishes participation and vesting provision for pension

plans

Consolidated Omnibus Budget Reconciliation Act (COBRA)– Requires employers to offer health care coverage at group

rates following termination of employment - for 18 to 36 months

Pay and Benefits

Health Insurance Portability and Accountability Act (HIPAA)– Allows employees with new dependent to enroll

immediately in health care plan

Equal Pay Act of 1963 (EPA)– Equal pay for women doing equal work

Family Medical and Leave Act (FMLA) of 1993– Provides eligible employees up to 12 weeks leave for birth

or adoption of a child, serious illness of employee or for the care of a seriously ill family member

Pay and Benefit

Women’s Health & Cancer Rights Act 1998

Newborns’ and Mothers’ Health Protection Act 1996

Mental Health Parity Act (MHPA) 2008

Employment Lifecycle

Recruitment &Selection

PerformanceManagement

RewardManagement

CareerManagement

Recruitment

On boarding

Performance Management

Termination

– KPA CONFIDENTIAL –

First Things First…

Job Descriptions

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Hire who you choose…but

You are required to select someone who meets the minimum requirements of the job – not necessarily the most qualified– Don’t deny anyone equal employment opportunity

because of personal bias– Education and experience requirements should be job

related– Be aware of your organization's diversity [affirmative

action] goals


Are you using the right tools for the job

• Effective job application form• Conduct a behavioral interview• Personally conduct references• Perform background checks and drug testing• Use a scorecard to make objective decision

If the answer to any of these questions is anything but yes- then you are taking on more risk than is necessary and increasing your chance of making a bad hire or a claim of discrimination

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Why Performance Appraisal?

• Appraisal provide information upon which promotion and salary decision can be made.

• Appraisal provide an opportunity for a manager and his/her subordinates to sit down and review the subordinate’s work-related behavior, and then develop a plan for corrective action.

• Appraisal provide a good opportunity to review the person’s career plans in light of his/her exhibited strengths and weaknesses.

Performance Management Cycle

Performance Planning(Setting Performance Targets)

Regular Review and Monitoring Feed back

Corrective Action

Performance Appraisal and Evaluation

• Training & Development Plan• Salary/Bonus Adjustment• Career Development

Problems in Performance Appraisal

Lack of standards

Irrelevant or subjective standards

Poor measures of performance

Poor feedback to employee

Negative communication

Failure to apply evaluation data

Common Performance Evaluation Problems


10 Steps to Effective Disciplinary Action

1. Address the problem as soon as possible

2. Set a specific time and place

3. Sit, don’t stand

4. Private location

5. Focus on the issue, not the person

6. Be specific about the concern

7. Be collaborative

8. Avoid negative statements

9. Encourage the subordinate

10. Document the meeting

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Documentation for Disciplinary Actions

Always document the conversation– Notes if a feedback session or oral warning

• Time, location, attending, issue, resolution, follow-up

– Disciplinary Action Form if a serious offense

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Recommended Documentation Prior to Termination

1 ) Job Description

2) Performance Appraisals

3) Disciplinary Actions

Tip: You must document everything in writing and it must be objective and non discriminatory

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The Ten Deadly Questions

Tip: Before you termination answer these questions....

“Ten Deadly Questions” provided by John Boggs of Fine, Boggs and Perkins

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1. Do you feel comfortable after your investigation that you will be able to prove, with evidence, that the employee violated the rule, or the standard of performance was not met, and that you have treated other similar situations with the same level of discipline in similar circumstances?

Ten Deadly Questions

2. Are there any prior commitments (written agreements or promises) in employee's personnel file regarding a specific term of employment, continued employment or a requirement of just cause for termination of employment?


3. Are there any complaints or claims (formal or informal) that the employee has made against the company, any co-worker, customer or vendor? (for example: harassment, discrimination, retaliation, unpaid wages, workers compensation claims, safety issues, labor regulation violations, dishonesty, customer fraud or other claims that the company violated the law in any way) .


4. If the employee falls into a "protected category" (minority, race, religion, color, sex, sexual orientation, national origin, ancestry, citizenship status, uniform service member status, marital status, pregnancy, age/over 40, medical condition—cancer related or HIV/AIDS related, disability, or transgender status) and does the employee's "protected category" represent a relatively small portion of your workforce or the employee's work group.


5. Has the employee taken any leaves of absence within the last year? (Medical leave, Family Care leave, Pregnancy leave, Drug/Alcohol Rehabilitation leave, Workers Compensation leave, etc.)


6. Have you disciplined others for this same general rule violation or performance deficiency?


7. Has the level of discipline imposed been substantially the same for the same violation or performance deficiency for other employees?


8. Have you failed to discipline anyone for the same general rule violation or performance deficiency, even though some other employees may have been disciplined for it?


10. Do you plan to terminate the employee?



So Can I Fire Them?

• “Employment at Will” means the employer or the employee can terminate the employment relations for cause or without cause as long as the reason is not illegal

• Employers may not fire or threaten to fire an employee to discourage him from or punish him for making a claim under the law

• Employers may not fire an employee if the cause is discriminatory or biased

• he burden of proof will be on the employer not the terminated employee to show the firing was not for illegal reasons

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So again… can I fire them?

Involuntary termination will stick if you follow and document 4 steps of progressive discipline

• Oral warning (counseling session)• Written warning• Suspension without pay (as appropriate)• Discharge

Termination for Cause

Ensure the employee is not a danger to themselves or to other employees, contact law enforcement if necessary for assistance or to report illegal acts

Include the employee’s supervisor and either a Human Resources representative, or the supervisor’s manager

Remain polite and respectful

Do not allow the employee to argue surrounding the circumstance of termination

Obtain the return of all company property

Provide termination paperwork

Enable the employee to ask questions about the end of employment

Escort the former employee our of the building with the understanding the if they return they are trespassing

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Termination for Non-Performance

Include the employee’s supervisor and either a Human Resources representative, or the supervisor’s manager

Be straight forward, civil, concise and compassionate

Provide termination paperwork

Respect the person's dignity, allow them to speak if they wants to and ask any questions they may have

Don't become angry or argue with the employee, stay “on script”

Collect all company property or determine its location

Give the employee a choice about who among the meeting attendees will walk her out of the building. Give the employee a choice about whether she wants to remove personal belongings from her work station now or after hours

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Documentation is your best defense

Employee Records

Employees may see their own file in most statesMedical information should be kept separateEmployer can’t distribute or reveal or discuss

employee’s:– Age– Health or disability– Marital status– Race– Alien status– Claims history

Personal Liability

• Defamation• Intentional inflictions of emotional distress• Intentional interference with contractual

relationships• Assault• Battery

Protect Yourself

Be alert- always consider your actions and the actions of your employees

Follow company policies Document Use common sense Build consensus and consult executive

management Don’t panic, but be proactive (if you are

served with a lawsuit)

References/Recommended Further Readings

1. Gary Dessler, Human Resource Management, Prentice Hall. http://www.amazon.com/Framework-Human-Resource-Management-5th/dp/0136041531/ref=sr_1_6?ie=UTF8&s=books&qid=1219801564&sr=1-6

2. Society for Human Resources Management (SHRM) www.shrm.org

3. KPA Monthly Newsletter, KPA Compliance Blog and KPA Webinars

http://www.amazon.com/Framework-Human-Resource-Management-5th/dp/0136041531/ref=sr_1_6?ie=UTF8&s=books&qid=1219801564&sr=1-6



http://www.shrm.org/


Questions and Answers

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Contact Information

– KPA CONFIDENTIAL – 44

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www.kpaonline.com

[email protected]

866-228-6587

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Hr 101 for managers and supervisors

Business

Transcript of Hr 101 for managers and supervisors