Top 5 HR Legal Hot Spots for Businesses

(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.

TOP 5 LEGAL HR HOT SPOTS

FOR BUSINESSES

What Every Organization Needs To Know


Presented By:

Lauren BrennerPresident/HR Division

150 Wells AvenueNewton, MA 02459

[email protected]


Agenda

Top 5 Reasons why Employers are Being Sued

Current “hot spots” in Massachusetts Against Discrimination (MCAD) Claims

HR Safeguards to Assist Organizations

Practices and Policies All Organizations Must Have

Test Your Knowledge

1. I-9 information legally needs to be retained

a. In a separate file

b. In the employee’s personnel files

c. Either of the above.

(a) In a separate file that is not attached to the employee’s personnel file (NOTE: Many employers keep all I-9 Forms together, filed alphabetically, in a separate folder).

Test Your Knowledge

2. An applicant, employee or former employee may file a harassment or discrimination complaint with MCAD (Massachusetts Commission Against Discrimination) or the EEOC (Equal Employment Opportunity Commission) within

a. 30 days of the most recent offense

b. 180 days of the most recent offense

c. 300 days of the most recent offense

d. There is no statute of limitations to file a complaint

(c) 300 days of the most recent offense; it is strongly suggested that you retain applicant and employee records for a minimum of one year (NOTE: other legal requirements state longer periods of time for the retention of employee or former employee files).

Test Your Knowledge

3. OSHA (Occupational Safety & Health Act) recordkeeping requirements apply to employers with

a. 1 employee

b. 11 employees

c. 25 employees

d. More than 50 employees

(b) 11 employees (the law does not stipulate that the employees be only full-time).

Test Your Knowledge

4. When an employee involuntarily separates from your company, whose responsibility is it to educate the terminated employee about unemployment benefits

4. The employee

5. The company

6. The company, but only to those employees who are involuntarily separated from your company

(b) The company needs to send the Division of Unemployment Assistance pamphlet to all terminated employees (regardless of whether the separation was voluntary or involuntary).

Test Your Knowledge

5. When was your Employee Handbook last updated with the recent legal compliance changes (e.g., MA Health Insurance Reform Act, ADA, Data Security Breach Law)

a. This past year

b. Within the last 5 years

c. Unsure

(a) With all the federal and state legal compliance changes over the past 1-5 years, companies need to ensure that they do not find themselves legally exposed to fines and penalties for non-compliance or notification to employees.


Top 5 Reasons Employers Are Being Sued

1) Unlawful Pre-Employment Process and Questions 2) Wage & Hour Infractions3) Rash Disciplinary Decisions/Termination Errors4) Breach of Confidentiality 5) Discriminatory Practices/Actions


#1 Unlawful Pre-Employment Process and Questions

Asking questions to discover protected category information

Requesting criminal history information on employment applications

Asking non-job-related questions Copying a driver’s license prior to employment offer Requiring completion of background check form prior to

employment offer Requiring certain skill testing & /or questions of some

applicants and not others

(c) 2011 All Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.

Pre-Employment Process and Questions Remedies

• Review your application• Standardize your interview process• Keep questions objective• Focus on job requirements & required skills• Avoid questions related to protected categories (e.g., age, disability)

• Develop Written Interview

Questions

• Develop/Review Job Descriptions

• Document of Interview

Information

• Ensure Offer Letters/Non

Disclosure Agreements (NDA)

protect your organization


#2 Wage & Hour Infractions

• Illegal reduction in overtime pay

Providing “comp” time vs overtime pay Not paying for “all” hours worked

• Misclassification of exempt/non-exempt employees

• Independent Contractor vs Employee Status


#2 Wage & Hour “To Do” List

• Review criteria for overtime pay – ensure legal compliance including paying employees for “all” hours worked

• Who determined what positions were exempt vs. non-exempt? Do you have job descriptions

• Review Independent Contractor vs Employee Status

Under Massachusetts (revised) wage and hour laws, there is a presumption that any individual providing services is an employee, unless the individual meets the following three (3)-part test:

1. The individual has been and will continue to be free from control and direction in connection with the performance of such service under the contract;2. Such service is performed outside the usual course of business

for which the service is performed; and3. Such individual is customarily engaged in an independently established occupation, professional or business of the same nature as that involved in the service performed.



Wage & Hour “To Do” List (cont’d)

Payment of Wages Upon Termination

Final Pay – depends on state requirementso Is it due upon termination?o If not, when (Note: In NH, exempt employee must be

paid for full pay period, not just the date of termination)

Vacation Pay Commissions

P.S. (Don’t forget to send DUA Notice and COBRA/Mini-COBRA Notice)


#3 Breach of Confidentiality Employee’s Work Performance Terminations HIPAA (Health Insurance Portability and

Accountability Act)

REMEDY – “Need To Know” basis


#4 Rash Disciplinary Decisions/Termination Errors

Acting out of emotion vs. reason

Setting an example with one employee when others have not received the same discipline

Not allowing the employee to state their side of the incident


#4 Rash Disciplinary Decisions/Termination Safeguards

Be consistent – actions taken with one employee should be taken with other employees in similar situations

Ensure you are 100% sure of your facts

Document


#5 Discriminatory Practices/Actions• Treating someone in a protected category differently than

someone else

Hiring Promotions Wage increases Disciplinary Action

or• Not reasonably accommodating someone in a protected

category Religious Holidays Time off


#5 Discriminatory Practices/Actions Reminders

Be consistent

Review the situation, not the employee

Document


Protected Categories IncludeFederal MA Race Race Color Color Sex Sex Age Age Religion Religion National Origin National Origin

Genetic Identity Genetic Identity ADA Disability

Veteran’s Status Sexual Orientation

(c) 2011 Rights Reserved by Lauren Brenner, HCR Group. The information contained herein is general and is not offered, and should not be construed, as legal advice with respect to any specific matter.

Reality Check

93,277 EEOC claims filed in 2010Resulting in $376 million in monetary awards

Note: Increase of 7.1 % from 2009Retaliation – 35, 890 claims

Increase in Religion, Age & Disability-based claims

3,323 MCAD cases filed in 2009 81.0% of claims were employment related


Current “hot spots” in Massachusetts Against Discrimination (MCAD) Claims

MCAD 2009 Top 6 Categories of Complaints by Protected Class

Cases Filed: 3,323 ↓

Disability – 20.5 % (1,140) ↑ Other Complaints:*Sex – 13.0% (721) ↓ Sexual Harassment – 6.2 ↑Race – 20.1 % (1,116) ↑ Sexual Orientation – 2.0Retaliation – 11.5% (766) ↑ Creed – 1.7 ↓Age – 10.7% (593) ↑ Retaliation – 13.8 ↑National Origin – 8.1% (451) ↓

*Complaints with a basis for Sex – 77% (Women)


Did you know…

The average monetary award median for employment practice liability cases, which includes discrimination and wrongful termination claims was $250,000.

An ounce of prevention is worth its weight in gold!


HR Safeguards to Assist Organizations

Update Employment Application Employee Handbook Anti-Harassment Policy & Employee Training Job Descriptions (include safety, education and skill

requisites) Management Legal Compliance Training Management Training


Policies and Practices All Organizations Must Have

Employment at Will Attendance/Tardiness Computer Usage/Electronic Workplace Confidentiality Safety Guidelines Misuse of Substances Dress Code/Personal Hygiene Telephone/Cell Phone Salary Deductions MA Health Insurance No Retaliation Personal Data Security/WISP (Written Information Security Program


PERSONAL CONDUCT POLICY Does your policy include:

◦ Sleeping on the job◦ Theft and unauthorized removal of company or

employee items◦ Fraud◦ Misappropriation of funds

NOTE: Only have policies that will be adhered to

Summation


Any Questions?



Thank You

Top 5 HR Legal Hot Spots for Businesses

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