Mastering the Essentials of Human Resources Tom Gardner National Seminars Group

1. Mastering the Essentials of Human ResourcesTom GardnerNational Seminars Group

2. Course Objectives • Create a discrimination-free work environment by understanding and complying with state and federal employment legislation. • Make better hiring decisions by applying best practice interviewing and hiring techniques. • Avoid claims of unlawful discharge by following legal termination guidelines. • Increase benefits administration effectiveness and improve employee understanding of common workplace benefits through effective communication and training.

3. Course Objectives, continued • Protect employees from harassment, discrimination and workplace violence by establishing a safe and lawful work environment. • Effectively evaluate employees based on performance and qualifications instead of personal characteristics. • Develop and maintain employment records that meet federal record keeping requirements and will withstand legal scrutiny.

4. Employer Rights • Hire qualified people • Expect that certain performance standards be met • Evaluate performance against those standards • Give assignments, transfer, relocate, etc.

5. 10 Most Common Management Mistakes* • Fail to train on company policies and procedures • Disregard company policies and act inconsistently • Fire without notice • Motivate poor performers with raises and bonuses • Criticize the person instead of the performance • Ignore problems • Fail to document • Tolerate inappropriate behavior • Lie and make excuses • Cover up problems Adapted from “Oops, I Did It Again: Ten Most Common Managerial Mistakes That Lead to Litigation” by Maxine Neuhauser, Workforce Management, March 2005.

6. Test Your HR IQ Answer true or false for each of the following. • You cannot check a job candidate’s credit history. • A company is not legally required to provide paid sick leave to full-time employees. • An employee diagnosed as HIV-positive is covered under the ADA whether or not he or she has symptoms. • Under FMLA, an employee must use any accrued time off during his or her family leave.

7. Test Your HR IQ, continued • New hires required to complete I-9 paperwork have one week after their start date to do so. • Companies with fewer than five employees are not subject to Workers’ Compensation regulations. • On the company’s employment application, it is legal to ask if a prospective employee has ever been arrested. • Workers’ Compensation and OSHA logs of records and injuries must be kept five years.

8. Penalties for Violating the Law • Reinstatement • Backpay • Frontpay • Attorney’s fees • Injunction • Retroactive seniority • Affirmative action • Compensatory/Punitive damages

9. Avoid Wrongful Discharge Claims • Public Policy • Military leave • Exercising legal rights • Refusal to take part in illegal activities • Motive of avoiding legal obligations • Malicious Termination • Implied Contract

10. Legal Discrimination Bona Fide Occupational Qualification

11. Non-Citizens and Title VII • Non-citizens are entitled to Title VII protection. • A citizenship requirement may violate Title VII if it has the purpose or effect of discriminating on the basis of national origin.

12. An Individual Qualifies as an Employee’s “Supervisor” if … • The individual has authority to undertake or recommend tangible employment decisions affecting the employee; or • The individual has authority to direct the employee’s daily work activities; or if not in alleged victim’s chain-of-command • The alleged victim reasonably believed the alleged harasser had authority to undertake or recommend tangible employment decisions affecting the employee.

13. Tangible Job Action - You’re Sunk Faragher v. City of Boca Raton (1998) Burlington Industries, Inc. v. Ellerth (1998) The Court ruled that employers are liable when the sexual harassment has culminated in a tangible employment action directed against the harassed employee (i.e., employee is terminated or demoted after rejecting a supervisor’s sexual advance).

14. Tangible Employment Actions • Hiring and firing • Promotion/Failure to promote • Demotion (but not “bruised ego”) • Undesirable reassignment (but not mere inconvenience) • A decision causing a significant change in benefits • Compensation decisions • Work assignments • Blocking future promotion/salary increases

15. Tangible Job Action, continued • The court further ruled that employers are permitted to establish an affirmative defense to the claim if it can be shown that no tangible action was taken against the harassed employee, and two additional elements: • The employer had communicated and established an effective procedure for employees to seek redress from sexual harassment; and • The harassed employee failed to take advantage of this procedure.

16. Determine if Harassment Occurred Ask: • Was the conduct sexual or gender-based in nature? • Was the conduct unreasonable? • Was the conduct severe or pervasive in the workplace? • Was the conduct unwelcome?

17. Was THAT Sexual Harassment? • Must be “unwelcome” • “Reasonable” person standard • Physical harassment • Back rubs and other “touchy-feelies” • Bulletin boards, walls and other visuals • Provocative clothing • Flirting, propositions, and compliments

18. Sexual Harassment Investigation • Take all complaints seriously • Remember the process is as important as the outcome • Make no judgments until the investigation is complete • Keep meticulous records • Obtain signatures on all statements or on copies of notes taken • Work hard to uncover all of the facts

19. Credibility • Inherent plausibility • Demeanor • Motive to falsify • Corroboration • Past record

20. Measures to Stop Harassment • Oral or written warning or reprimand • Transfer or reassignment • Demotion • Reduction of wages • Suspension • Discharge • Training or counseling of harasser to ensure that she or he understands why his or her conduct violated the employer’s anti-harassment policy • Monitoring of harasser to ensure that harassment stops

21. What’s Religion? • Includes all aspects of religious observances and practices as well as belief, or lack of belief. • Religious practices include “moral and ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views.”

22. Religious Accommodation Trans World Airlines v Hardison (1977) • First Title VII religious discrimination case. • The Court stated that under Title VII employers must reasonably accommodate an employee’s religious needs unless to do so would create an undue hardship for the employer. • The Court defined hardship as anything more than de minimiscost.

23. Purpose: ADA The ADA prohibits employment discrimination against “qualified individuals with disabilities.” A qualified individual with a disability is an individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

24. Complying With the ADA Who Must Comply? • Employers with 15 or more employees • Public facilities, such as state and government agencies and offices • All organizations, agencies and businesses that provide services to the general public

25. ADA Requires Reasonable Accommodation in Three Aspects of Employment • To ensure equal opportunity in the application process. • To enable a qualified individual with a disability to perform the essential functions of a job. • To enable an employee with a disability to enjoy equal benefits and privileges of employment.

26. Make Reasonable Accommodation • Make existing facilities readily accessible and usable by individuals with disabilities. • Restructure jobs. • Allow time or modified-work schedules. • Acquire or modify equipment or devices. • Allow appropriate modification of examinations, training materials or policies. • Make provisions of qualified readers or interpreters.

27. Undue Hardship Includes Any Action That Is… • Extensive • Substantial • Disruptive • That would fundamentally alter the nature or operation of the business.

28. The General Duty Clause • Each employer shall furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause serious injury or death. • Each employee shall comply with occupational and health standards and all rules, regulations and orders pursuant to (OSHA) which are applicable to his/her actions and conduct.

29. Workplace Violence Legal Consequences • Civil actions • Lawsuits • Workers compensation claims • OSHA violation charges • Third party claims • Invasion of privacy actions

30. Watch for These Signs • Unusually careless or sloppy dress • Mumbles to self • Paces aimlessly • Extremely distracted • Speaks disjointedly • Does not make eye contact • Looks around in a searching manner

31. “Zero Tolerance” Policy • Have no tolerance for violent words, threats of violence or possession of weapons on company property or while on company time. • Have a reporting system. • State company’s response to complaints and for proven prohibited conduct. • Make it clear that the police, the sheriff or private security will be asked to respond when necessary. • Provide quick-reference phone numbers for use in an emergency.

32. Privacy Principles • Individuals have the right to privacy where circumstances give a reasonable expectation of privacy. • Many states have legislation that protect the rights of the employee. • An employer must be able to conduct investigations of employees when circumstances give rise to a suspicion of theft or fraud or when the employee could be considered a safety risk.

33. Invasion of Privacy Greater Expectation ☻Body, home, thoughts ☻Clothing, purse, briefcase, own auto ☻Company desk, files, locker ☻Company provided office ☻General workplace, company parking lot Lesser Expectation

34. Conduct a Thorough Job Analysis Competence Can do Tangible Technical/ Functional Interview for Commitment Will do Intangible Adaptive Hire for

35. Behavioral-based Questions • A structured behavioral interview is a pre-planned series of questions that focus on… • What the candidate has done • How s/he did it • In situations similar to those s/he will face on the job • Think S.T.A.R.

36. The Theory The best predictor of future behavior is past behavior and the more recent the behavior the better the predictor.

37. Rule of Thumb “Never, ever, hire even a moderately qualified person just because you need someone now.”

38. May You Avoid These People • Asked by the hiring manager why he was leaving his current job, the candidate replied, “My manager is a jerk. All managers are jerks.” • At the end of the interview, the candidate expressed her interest in the position, but only if her boyfriend liked the company and the hiring manager. She then said, “He’s waiting outside. Can I bring him in to say hello?” • After being complimented on his choice of college and the GPA he achieved, the candidate replied, “I’m glad that got your attention. I didn’t really go there.” Ref: Fortune, 9/30/02

39. Conduct Thorough Reference Checks Check the following: • Factual information (dates of employment, title, salary, etc.) • Job duties • Job performance • Suggestions for future development • Misconduct or other problems during employment • Reason for leaving and eligibility for rehire • Other people to contact

40. Progressive Discipline • Verbal warning • First written warning • Second written warning (optional) • Decision-making leave • Termination (Freedom)

41. FMLA Eligibility To be eligible, an employee must work for a covered employer and… • Have worked for that employer for at least 12 months • Have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave • Work at a location where at least 50 employees are employed or within 75 miles of the location

42. FMLA — Serious Health Condition • “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either: • Any period of incapacity or treatment connected with inpatient care; or • Continuing treatment by a health care provider which includes any period of incapacity due to:

43. FMLA — Serious Health Condition . . . a health condition (including treatment there for, or recovery there from) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: • treatment two or more times by or under the supervision of a health care provider; or • one treatment by a health care provider with a continuing regimen of treatment

44. Breaks/rest periods of 20 minutes or less Meal periods of less than 30 minutes Employee cannot leave work area for a meal Freedom-restricted on-call waiting time Required on-duty waiting time Travel from one work site to another Job related clothes changing or area clean-up Job-related training or meeting time Volunteer work benefiting employer Hours Worked

45. Non-compensable Hours • Commuting time between residence and work • Personal leave • Medical attention during non-working hours • Required jury duty • Pre-employment testing

46. Exemptions From Overtime Provisions • Executive • Administrative • Professional • Computer • Outside Sales

47. Access to Employment Files • Does an employee have access rights? • Does a former employee have access rights? • Does a third party have access rights? • Are medical records maintained in personnel files or in a separate location? • Can files be disclosed to outside parties when there is an employment-related dispute or litigation? • Are confidentiality laws uniform in all states? • Is e-mail considered a legally confidential way to send benefit or personnel file information to an employee?

48. www.eeoc.govwww.osha.govwww.dol.govwww.findlaw.com ImportantWeb Sites

49. That’s All Folks Thank You