HR4U

Cal/OSHA Guidance for Employers:
California employers are encouraged to review their strategies for protecting the health of their employees, including their pandemic flu or other emergency plans. Employers should take this opportunity to update their plans and to train their employees.

Federal OSHA has added several documents to their website which provide specific advice regarding H1N1 and pandemic influenza. These can be found at www.osha.gov, under the heading “In Focus.” Additional information on how businesses can plan for pandemic flu can be found at: http://www.osha.gov/Publications/influenza_pandemic.html

Health Care and Other High Risk Environments:
The U.S. Centers for Disease Control have prepared special guidelines for protecting health care workers who are exposed to people who are suspected of, or confirmed as being, infected with the H1N1 flu virus. More information can be found at http://www.cdc.gov/swineflu/guidelines_infection_control.htm

At a minimum, the CDC recommends the use of approved N95 filtering face‐piece respirators when providing care to H1N1 flu patients or otherwise entering the patient’s room, and when collecting clinical samples, such as nasal swabs. The California Department of Public Health guidelines can be found at:
http://www.cdph.ca.gov/HealthInfo/discond/Documents/CDPH_Swine_Flu_Infection_Control_Recommendations.pdf

In general, health care operations and other higher risk environments such as homeless shelters, should take steps to reduce employee exposure to this disease through their injury and illness prevention plan, and through providing approved respiratory protection when necessary. Posters and signs informing people to “cover their cough,” which can be understood by all people who enter the facility, should be posted.

OSHA and Cal/OSHA regulations require that employees who use respirators be included in a respiratory protection plan that includes a medical evaluation, training, and fit testing to ensure that the respirator provides an adequate seal to the employee’s face.

Covered employers specifically include the following in the health care profession:
• Hospitals
• Skilled nursing facilities
• Clinics
• Medical offices
• Home healthcare services
• Long-term healthcare facilities
• Emergency service providers
• Medical transport

Certain other high-risk facilities outside of the health care profession also are covered by the regulations. These include:
• Police services during transport or detention of persons suspected to be cases of aerosol transmissible diseases
• Homeless shelters
• Drug treatment programs
• Medical examiners’ offices

General Swine Flu Infection Control Advice for All Other Employers:
Employers can take some steps to help protect employees, including these, suggested by the Centers for Disease Control (CDC):
• Encourage sick workers to stay home and away from the workplace, and provide flexible leave policies.
• Encourage infection control practices in the workplace by displaying posters that address and remind workers about proper hand washing, respiratory hygiene, and cough etiquette.
• Provide written guidance on swine flu, either through e-mail or other written workplace communications. Employers should work to ensure they are providing the most appropriate and up-to-date information. Information regarding the swine flu is available on the CDC’s web site at http://www.cdc.gov.
• Provide sufficient facilities for hand washing and alcohol-based (at least 60%) hand sanitizers (or wipes) in common workplace areas such as lobbies, corridors, and restrooms.
• Provide tissues, disinfectants, and disposable towels for employees to clean their work surfaces, as well as appropriate disposal receptacles for use by employees.
• To reduce the chance of spread of the swine flu virus, disinfect frequently touched hard surfaces in the workplace, such as work stations, counter tops, door knobs, and bathroom surfaces by wiping them down with a household disinfectant according to directions on the product label. One study showed that the influenza virus can survive on environmental surfaces and can infect a person for up to 2-8 hours after being deposited on the surface.

Impact of the American with Disabilities Act (ADA):
• Employers should be aware that the ADA may impact their ability to require employees be tested for the swine flu. Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. An employer may not make any disability-related inquiries or require medical examinations prior to an employment offer. However, after an employee has received a conditional offer of employment, the employer may require the employee to undergo a medical test, such as a test for swine flu, if it requires all entering employees in the same job category to undergo the same test. Thus, an employer can require all entering employees to be tested for swine flu.
• Under the ADA, employers can require current employees to undergo medical examinations (a test for the swine flu virus likely would be considered a medical examination) when such examinations are job-related and consistent with business necessity. An employer likely can meet this requirement by showing that an employee who displays symptoms of swine flu presents a direct threat of substantial harm to other employees. Thus, an employer likely can require an employee who displays symptoms of swine flu to submit to a test for the virus if this employee’s present physical condition presents a direct threat to other employees.
• Employers must treat the results of any swine flu test as confidential, as is required for all employee medical information. Additionally, employers should treat as confidential any information they receive indicating that an employee has been exposed to the swine flu.
• The EEOC’s guidance notes that an employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identifies non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity).

Summary:
The key to preventing the spread of the swine flu is education. This can be accomplished providing ongoing written and verbal communication and training about the swine flu and by updating your Illness and Injury Prevention Plan (IIPP) and your Employee Handbook. This will let your employees know that you are being proactive about their welfare and are serious about preventing the spread of the swine flu.

Human Resources 4U can assist you with the development of these plans and programs.

On October 9, 2009, an important new Federal law affecting employer-sponsored group health plans will become effective. For calendar-year plans, the law will apply as of January 1, 2010.

The new law is known as “Michelle’s Law” and expands employers’ coverage and notice obligations for eligible college students. California already has its own version of Michelle’s Law.

New Requirement
All group health plans must allow a college student with a “serious illness or injury” to remain eligible for active dependent coverage for 12 months, even if he or she no longer qualifies as a full-time student.

The 12 months, however, does not extend coverage beyond another independent event that would end active/dependent status, such as the parent’s termination of employment or the student exceeding the plan’s age limit. COBRA coverage would not be offered until after the 12-month special period has expired, unless the student returns to full-time status and remains eligible under other terms of the plan.

New Notice or Disclosure Requirements
If a health plan requires employees to certify the full-time student status of any dependent, then any description of that requirement must include a notice about the 12-month extension. The notice must be written in a manner that is understandable by the typical plan participant.

The California Twist
Once again California has chosen to do things differently than the Congress. The California law became effective January 1, 2009 so as of October 9, you will now have to wade through both laws.
• California allows for an extension beyond one year. In the event that the disabling condition persists and the student is chiefly dependent upon the covered employee for support and maintenance then coverage will continue beyond the limiting age upon timely submission of proof to the insurer/HMO.
• Under the state law, the insurer/HMO can terminate the student’s coverage if it has not received proof of the disabling condition and that the employee is the chief provider of support and maintenance within 60 days of the insurer/HMO’s notice that coverage is terminating for loss of student status. Please note that federal law sets no time limit for providing evidence.
• California law requires all insurers/HMOs offering health care coverage to provide a notice to the covered employee with a dependent 90 days prior to the reaching his/her initial limiting age (e.g. age 19). The notice must include a description of the requirements for extension under Michelle’s Law. Coverage will terminate for that dependent absent a showing of student status or that student status was interrupted by a qualifying injury, illness or condition within the 60 day period following the carrier notice.
• The California law also makes it clear that health care coverage for students cannot terminate solely due to a break in the school calendar.
• At present, under California law, the insurers and health care service organizations must circulate all appropriate notices including a notice to dependents that are approaching the end of eligibility.

Generally, in California, when State and Federal law conflict, you must follow the law that is more favorable to the employee. Therefore, should any issues develop around Michelle’s law, you should check with your legal counsel before making any final decisions.

What You Need to Do Now
If you haven’t already done so, you should review your plan document and summary plan description to update and clarify any provisions related to dependents who are full-time college students, including the addition of language about the special 12-month period. You also need to make sure your benefits and human resources staff is trained on how to recognize situations that will trigger these new requirements. It would also be a good idea for employers or plan sponsors to audit the status of dependents under their plan with regard to continuing eligibility for benefits absent any carrier efforts to do so

The Electronic Discovery Act
Governor Arnold Schwarzenegger has signed into law California’s first set of electronic discovery regulations, the Electronic Discovery Act effective 6/29/09. The new law largely follows federal regulations establishing procedures for litigants who seek electronically-stored information.

Under the new law, a party seeking electronic information may specify the form in which documents are to be produced. If the request does not specify the form for production, the party producing the information should produce it in a form in which it was ordinarily maintained or in a form that is reasonably usable. The party seeking the information must take reasonable steps to avoid imposing undue burden or expense on the producing party.

A party who objects or seeks a protective order on the grounds the requested data is not reasonably accessible because of undue burden or expense bears the burden of demonstrating this. However, even if the electronically-stored data is from a source that is not reasonably accessible, a court may nonetheless order discovery if the requesting party shows good cause. In this case, the court also may set conditions for the discovery, including allocation of expenses.

The Act provides some safe harbor protections to responding parties. It shields a respondent from sanctions “for failure to provide electronically-stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.”

How the California ESA Differs from the Fed
The one area where the California EDA differs from the federal approach concerns the discovery of electronically stored information from sources that a party identifies as not reasonably accessible.

The California EDA does not contain explicit language that states a party does not have to provide discovery of inaccessible ESI. Just as important, unlike the Federal Rules, which put the burden on the requesting party to file a motion to compel to obtain discovery from sources of ESI that are identified as not reasonably accessible, the California EDA appears to place the burden on the producing party to file a Protective Order to claim that specified data sources are inaccessible due to undue burden or expense, and thus do not have to be searched.

Conclusion
Given the new California EDA, it is more important than ever for California employers to become intimately familiar with their own IT systems, policies and practices. In order to identify sources of information that are not accessible due to undue burden or cost, you must understand your IT systems, where relevant data resides, and how difficult and/or burdensome it is to extract the information for discovery. Further, detailed knowledge of your IT systems is critical for determining the form of production for ESI, which now needs to be addressed at the time discovery requests are served or responded to. Without such knowledge, you may agree to produce ESI in a manner that your IT systems will simply not allow and may fail to identify opportunities to take advantage of the cost-shifting provisions discussed above.

From a practical standpoint, the California variation on the treatment of inaccessible ESI is not that much different than the Federal Rules. In either case, responding parties have to be proactive if they intend to not search or produce electronic data from inaccessible sources by:
o Promptly identifying sources of ESI that are not reasonably accessible by lodging a timely objection to a discovery request; and
o Providing sufficient details about the burdens and costs of providing the discovery from and the likelihood of finding responsive information on the sources identified.

Therefore, given the cost-shifting provisions of the EDA that are unique to California, employers need to be aggressive about seeking mandatory cost-shifting when dealing with a discovery request that calls for the production of ESI contained on any type of back-up media.

In a prior blog (4/1/09) I discussed the critical importance of Job Descriptions. For today’s blog I would like to focus on the “Essential Functions” component of the job description.

You need to be very diligent when listing your essential functions because it is the essential functions of a job for which you are required to search for reasonable accommodations, should the employee no longer be able to perform the function in the “normal” manner. Remember, if the function is not listed in the job description, you will have a hard time convincing anyone that it was an essential function.

Essential Functions
When defining Essential Functions, only two features of job responsibility are important: identifying tasks that comprise the “must do” components of the job and listing the tasks in order of importance. Using single sentence descriptions, you should be able to cover 90 to 95 percent or more of most tasks and responsibilities in 10 or 12 statements. The amount of time spent on a function should not be the sole criteria. For example, landing a plane doesn’t take nearly as much time as flying a plane but no one would dispute plane landing as an essential function of a pilot’s job.

It is important to remember that an essential function is a task. Not how the task is to be completed. For example, you should not say crawl under machinery to repair oil leaks, but rather say repair oil leaks located under the machinery. This becomes important when it comes to managing requests for accommodation to comply with the Americans with Disabilities Act. In the example just mentioned, if an employee where to say they are now disabled and can no longer crawl under machinery, the employer would have to see if the employee could be reasonably accommodated by finding an alternative way to repair the oil leaks.

Don’t make the mistake of relying on assumptions about what the employee does in the job. Make sure the employee actually performs the essential function. You can’t rely on a job title or the traditional role of a particular job.

It is primarily the employer’s judgment as to which functions are essential; however, should a dispute arise, it is not the only evidence but one factor to be considered along with other relevant evidence. The employer’s judgment will likely be discounted if, for example, a court finds that the employer doesn’t actually require all employees in a particular position to perform an allegedly essential function.

How should you distinguish between “Essential Functions” and “Other Duties?”
“Essential functions” are those that could be described as critical, integral, indispensable, primary, and fundamental, whereas “other duties” could be described as peripheral, extra, incidental, and accessory.

There is generally no clear cut dividing line between essential functions and other duties. Rather, you should be asking some of these questions to help in the determination;
• What is the purpose of the task?
• Are there other methods of performing the task?
• Why is the task performed?
• How is success in accomplishing the task measured?
• What happens if the task is not done correctly?

Human Resources 4U specializes in developing Job Descriptions that can then be linked to salary, merit, and promotional structures to ensure compliance and to help you minimize the risk of pay discrimination claims in the future.

Human Resources 4U is a full service Human Resources consulting company specializing in small and midsize businesses. Note: This article is presented with the understanding that we are not engaged in rendering legal advice. If legal advice is required, the services of a competent attorney should be sought.

Hiring is a difficult and costly process. You look at resumes and applications, you interview a few times, you check some references (maybe) and now you’re ready to hire. In California, once you make a job offer, it is difficult to rescind it. Why not take one extra step and conduct a professional background check using “third party” reporting agency that specializes in these investigations just to make sure everything you were told is accurate and truthful.

Third Party Background checks in California are regulated by federal and state law and are subject to specific legal requirements. The federal Fair Credit Reporting Act (FCRA) regulates “consumer reports” and “investigative consumer reports.” Investigative consumer reports will contain personal interviews of friends and neighbors that go beyond simply verifying facts and dates.
Under the FCRA, “consumer reports” include:
• Credit checks.
• Criminal record history.
• Verification of education.
• Other related information.

If you use a reporting agency to conduct either type of background investigation you must follow rigorous notice and disclosure rules. You must make appropriate disclosures to the applicant before obtaining a report from the reporting agency.

The disclosure must be in writing and contain the following information:
• A statement that a background check may be obtained for employment purposes.
• The purpose of the report.
• A statement that the report may include information about the individual’s character, general reputation, personal characteristics, mode of living, creditworthiness and credit standing.
• How to contact the reporting agency conducting the investigation.
• The nature and scope of the investigation, including a summary of the individual’s rights under the FCRA.

If the background check will include personal interviews, you must provide the applicant with a summary of FCRA rights (a copy of which is available on the Federal Trade Commission’s web site at www.ftc.gov ). You must include this information in a stand-alone document and not as part of the employment application or other document.

You must obtain written consent to conduct the background check and provide a “check box” on the disclosure form or elsewhere so the applicant may request a copy of the report. If requested, a copy of the report generally must be provided by you within three days of its receipt. However, if you are obtaining a consumer credit report, the applicant must receive a copy of the report at the same time it is sent to you. You can generally arrange for the reporting agency to provide the copy.

Finally, you must certify to the reporting agency that it has complied with the notice and disclosure requirements and is obtaining the report for a permissible purpose.

Under the FCRA, if you intend to take some form of adverse action against the applicant based on the report, you must provide the applicant or employee with a copy of the report and a summary of rights. Then the applicant may provide information to dispute the report.

Under state and federal law, if you proceed with the adverse action, you must provide the applicant with:
• An adverse action notice.
• Information on how to contact the reporting agency.
• A statement that the decision to take an adverse action was based on information in the report.
• Information on how to obtain a free copy of the report.
• A summary of rights under both state and federal law.

Moreover, if you take an adverse action (e.g., refusing to hire an applicant) based on the information uncovered by the reporting agency during a public records search must provide a copy of the public records to the applicant, even if the individual initially waived his or her right to receive one.
Your reporting agency should be able to supply you with all the required disclosure and reporting forms and to protect yourself from potential liability, you should get confirmation in writing from the reporting agency you are using that it and all the forms it uses comply with both state and federal laws.
Finally, if you make an offer of employment before you have the completed background check (as is often the case), it should be made clear to the applicant that this is a contingent offer based on the successful completion of your background investigation.

FMLA update
According to a just issued EEOC private letter ruling, employers cannot put absolute time requirements as to how soon an employee must notify them when they go on leave. In short, when it is not possible to give 30 days’ advance notice, employees must comply with their employers’ internal policies and procedures for requesting leave, as long as it is practicable to do so. Therefore; if an employee has a good reason for not giving notice in accordance with your policies, you should not be taking any negative action against the employee.

DOL’s 2010 Budget
The Department of Labor (DOL’s) proposed budget is requesting to hire approximately 670 new investigators, restoring worker protection staffing to FY 2001 levels. Of the 670, the Wage and Hour Division is expecting to hire 200 new investigators, OSHA, 160 new investigators, and the OFCCP, 213 investigators. Employers need to take steps now to ensure they are in compliance with all applicable federal regulations governing the workplace.

Immigration Law Enforcement
The Department of Homeland Security (DHS) recently issued a press release stating that the agency intends to shift the focus of its worksite enforcement strategy away from illegal workers and towards the criminal prosecution of employers who knowingly hire them.

As a result of this shift in DHS’s priorities regarding worksite enforcement, employers should ensure that they have appropriate documentation for current employees and those employers lawfully prepare and maintain the Form I-9, Employment Eligibility Verification, for all newly hired employees. Employers should review their immigration compliance procedures, which should include:
• Regularly scheduled in-house audits of I-9 records to ensure proper completion and retention and to correct any discrepancies
• Ongoing training of human resources professionals involved in the I-9 process
• A procedure for appropriately responding to a Social Security No Match letter, a DHS Notice of Suspect Documents, or other evidence indicating that they might have “constructive knowledge” that a certain worker does not have work authorization.

Employee Free Choice Act
Some potential good news, at last. Recently, President Obama pronounced that the “card check” is dead, saying that the current Employee Free Choice Act didn’t have the votes to pass but that a “compromise” could work. By compromise, the president meant a version of the bill without card check, the provision obliging employers to recognize unions after a majority of workers have signed cards, rather than after an election.

Federal Contractor E-Verify Rule Delayed Until September 8, 2009
The effective date of the Federal Contractor E-Verify Rule has been postponed once again. The new implementation date is now scheduled to be September 8, 2009 (extended from the most recent scheduled implementation date of June 30, 2009).

The rule requires federal contractors with contracts for services or construction over $100,000 and a performance period over 120 days, to use E-Verify for all newly hired employees and also for current employees working on the contract. It was originally due to take effect on January 15, 2009, but has been postponed several times to allow President Obama’s administration time to review the rule.

The Equal Employment Opportunity Commission recently issued guidance to help employers avoid discrimination lawsuits filed by workers with caregiving responsibilities.

Under the guidance, employers are prohibited from:
• Assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees.
• Assuming that male workers do not, or should not, have significant caregiving responsibilities.
• Steering women with caregiving responsibilities to less prestigious or lower-paid positions.
• Treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities.

The EEOC guidance provides suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers.

General Guidance
• Train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.
• Develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies. In particular, front-line supervisors and other managers who regularly interact with employees and are responsible for assignments, leave approval, schedules, promotions and other employment terms, conditions and benefits.
• Respond to complaints of caregiver discrimination efficiently and effectively.
• Protect against retaliation.

Recruitment, Hiring, and Promotion Guidance
• Focus on the individual’s qualifications for the job in question. Do not ask questions about their children, plans to start a family, pregnancy, or other caregiving-related issues.
• Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position, and make sure these standards are consistently applied when choosing among candidates.
• Ensure that job openings and promotions are communicated to all eligible employees regardless of caregiving responsibilities.
• Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workforce.

Failure to give applicants or employees a fair shake at open positions because of known or suspected caregiver responsibilities could get your organization involved with an EEO discrimination claim.

Privileges of Employment Guidance
• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers.
• Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations. Make required overtime as family-friendly as possible.
• Encourage employees to request flexible work arrangements.
• Post employee schedules as early as possible for positions that have changing work schedules so that employees can address personal responsibilities.

Conclusion
Disparate treatment based upon one’s caregiver status alone does not support a discrimination claim. However, the guidance makes clear the interplay between one’s caregiver status and those characteristics that are protected under the law, including gender, race, and disability. Therefore, an employer cannot take adverse action against an employee with caregiving responsibilities where the action is linked to an employee’s protected category.

Human Resources 4U

Do your new employees know what their job duties are? What among those duties are the most important? Who is his/her supervisor? Do they know if they are eligible for overtime pay? Do you know if they should be eligible for overtime pay? To avoid confusion for new hires and to assist you in many other areas (including legal compliance), it may be helpful to have a consistent set of Americans with Disabilities Act (ADA) compliant job descriptions for all of your employees. Besides helping to avoid confusion among employees and supervisors there are many other benefits to having job descriptions.

• Job descriptions set clear expectations. The job description is the first place to look when employees aren’t doing what you want them to. The first step in getting people to do what you want them to do is to make sure that people know your expectations-and that starts with the job description.
•  They form the foundation for building a logical salary structure and as the starting point for job analysis and classification, setting pay and grade levels and determining exempt or nonexempt status
• When recruiting, specific job descriptions can be handed out and discussed as part of the interview process.
• The key parts of the job description will be very helpful when developing advertising and conducting preliminary screening of applicants
• Job descriptions can be used as a basis for developing meaningful and more detailed interview questions
• Job descriptions are objective and impersonal. That makes it easier for parties to have productive discussions of shortcomings or to overcome misunderstandings. You need only look at the description to find neutral ground.
• They are a great starting point for performance evaluation. The fairest evaluations are based on how well an employee performs duties outlined in a job description.
• The gaps between what the employee skills are and what the job requires can be used as a basis for orientation and training of new employees
• Job descriptions help you cover your legal bases. For example, in regard to the Americans with Disabilities Act (ADA), you’ll want to make certain that the description of physical requirements is accurate, and you’ll want to split off the essential functions of the job from the “other duties.”

Most businesses that have more than a few workers employed in several different positions need job descriptions. They are the key to building a rational and logical workforce structure.

Job Description Components
Although content can vary according to the nature of the business and the kinds of work done, a practical job description system should maintain a consistent format and contain the following components:
• Title Block: this would include items such as job title, pay grade or range, department, reporting relationship (by position, not individual), exempt/nonexempt status, effective date, revision date, and management approvals of the Job Description.
• Position Summary: a condensed statement of responsibilities and overall description of key tasks and their purpose; relationships with customers, coworkers and others and results expected of incumbent employees
• Essential Functions: only two features of job responsibility are important: identifying tasks that comprise about 90 to 95 percent of the work done and listing tasks in order of the time consumed (or, sometimes, in order of the importance) of each. The first task listed should be most important or time-consuming one, and so on. Using a single sentence description, you can cover 90 to 95 percent or more of most tasks and responsibilities in 10 or 12 statements.
• Other Duties: this would include duties that may be required from time to time but are not essential for successfully fulfilling the position requirements
• Minimum Qualifications: the education and experience necessary for entry into this job
• Physical Requirements: the conditions applicable to this position (for example, heavy lifting, exposure to temperature extremes, prolonged standing, etc.)
• Work Conditions: items such as the environment (office, noisy shop floor, outdoors, etc.)

You may also want to consider some type of disclaimer to remind readers that job descriptions are not meant to be all-inclusive and/or the job itself is subject to change. For example: “Nothing in this job description restricts management’s right to assign or reassign duties and responsibilities to this job at any time.”

Job Testing
Testing is OK but keep this in mind when using tests.

• Jobs change: In today’s work environment jobs change frequently, and that can leave you with tests and job entry requirements that no longer are “job-related business necessities.” For instance; a position where data entry keyboarding speed was once an essential function, but now data are scanned or sent in electronically? Now the essential function may be database management.
• Blanket Testing: Some blanket standards may seem reasonable, but often there are some jobs to which the standard should not be applied. For example; when you impose a standard that says, “Everyone needs a high school diploma” on all applicants, including applicants for menial jobs, you may be imposing an unlawful standard that isn’t job related. A better approach would be to add an alternative requirement such as “or 6 months of related experience.”
• Online screening: Screening applicants online can save time and money by helping hiring managers determine early in the process which individuals are qualified for an interview. Many times the questions can be structured so that those who are clearly unqualified can be automatically screened out. But there can be a violation here if access to the screening isn’t readily available. Be sure that you make the testing available to all, and be prepared to offer accommodations for the testing process to applicants with a disability

Job Descriptions and the Law
Can job descriptions prevent lawsuits? Lack of clarity is the basis for many lawsuits—e.g., clarity about pay or about the reasons for employment decisions—and many of those suits can be avoided by clearly written, up-to-date job descriptions.
Good job descriptions can:

• Promote proper classification to avoid wage and hour litigation. When job descriptions have proper detail, they help you reach a correct conclusion about exemptions. Remember, the title is NOT the determining factor—job duties and responsibilities are. You should note that wage and hour claims outnumber all other types of discrimination complaints, combined.
• Support accurate compensation structures. Good job descriptions clarify which jobs are similar and entitled to similar pay, and which jobs warrant different pay because they require different levels of skill, knowledge, or responsibility, or because they contribute to company goals in different ways. Pay-based discrimination complaints are expected to increase now that the Ledbetter Fair Pay Act is the law (visit my blog to see my March 4 posting for more information about this). You may be able to help minimize these types of lawsuits with detailed job descriptions.
• Aid in defending against discrimination charges. Federal laws prohibit employers from basing employment decisions such as hiring, compensation, or other terms, conditions, and privileges of employment on illegal factors such as race, religion, sex, or national origin. But these laws don’t bar you from selecting, promoting, or rewarding individuals based on qualifications and merit. By defining a job’s requirements and setting forth clear performance standards, the job description will help to justify your employment decisions and reduce your organization’s exposure to costly litigation.
• Facilitate ADA compliance. Federal regulations and guidance governing the Americans with Disabilities Act (ADA) do not require employers to have job descriptions. However, employers choosing to have job descriptions will find that the ADA has a significant impact on format and content. Because the employment provisions of the ADA focus on essential functions, the employer must ensure that all essential functions are covered in that component of the job description. All non-essential functions would be included under “Other Duties.”For example; statements such as “Performs other duties (or functions) as assigned” are not suitable as an essential function.
• Help in complying with OSHA rules. Generally, federal law does not require employers to have job descriptions, but there are some exceptions. One exception concerns jobs where employees handle or dispose of hazardous waste such as oil, antifreeze, transmission fluid, auto parts cleaner, paint thinner and similar material. The governing regulation (40 CFR 264.16) does not prescribe a format or degree of specificity for descriptions of these jobs, but it does outline what must, at a minimum, be in them. Also, when a job description includes information about working conditions, such as dangerous work environments and special equipment used, it can help ensure compliance with safety rules and alert an applicant that the position is hazardous.

Keeping Job Descriptions Current
Job descriptions have the potential to become the subject of contention, including grievances or litigation. So remember, for your job description system to work, it is critical that accuracy be maintained. To ensure this, the employer should designate one party (for example, the supervisor or the HR department) as having primary responsibility for keeping them current. In addition, the employer should have a plan for reviewing them regularly (at least annually).

Human Resources 4U specializes in developing Job Descriptions that can then be linked to salary, merit, and promotional structures to ensure compliance and to help you minimize the risk of pay discrimination claims in the future.

Human Resources 4U is a full service Human Resources consulting company specializing in small and midsize businesses. Note: This article is presented with the understanding that we are not engaged in rendering legal advice. If legal advice is required, the services of a competent attorney should be sought.

Human Resources 4U          

Your One Stop Human Resources Shop!      

On January 29, President Obama signed the Lilly Ledbetter Fair Pay Act. This Act will force employers to make sure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of their pay decisions.

The new law allows individuals to file charges of alleged pay discrimination under Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. The law declares that an unlawful employment practice occurs when:

• a discriminatory compensation decision or other practice is adopted
• an individual becomes subject to the decision or practice; or
• an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice.

By eliminating the normal 180/300-day charge filing period for pay discrimination claims, the statute allows the filing of charges alleging pay discrimination with the issuance of each paycheck tainted by alleged past discrimination. Thus, each new paycheck or post-retirement benefits check serves as a potentially unlawful employment practice for which an employee may timely file a charge, even if the allegedly discriminatory pay decision occurred years, perhaps even decades, before.

Because current and former employees can now challenge pay decisions made in the distant past, employers need to modify their record retention policies and begin retaining records surrounding pay decisions indefinitely. Over time memories fade and witnesses become unavailable, therefore, employers should take extra care to document the reason for decisions that affect employees’ compensation.

For example, a promotion decision made in 2008 may be the subject of litigation in 2023, if in 2023 the employee who was not selected can prove that the decision 15 years earlier was discriminatory and that the employee’s compensation in 2023 would have been higher if the employee had received that promotion and raise in 2008.

Although recovery of back pay is limited to two years, other remedies are also available, including punitive damages, emotional distress damages and injunctive relief. Injunctive relief may include a court order to reinstate or promote an aggrieved employee.

Therefore, employers should also seriously consider conducting an immediate self-audit of their written pay policies and actual practices.  The self-audit should examine the following:

• starting pay
• promotional pay increases; and
• merit pay increases.

Professionally developed compensation systems generally slot every position into some form of a hierarchy, such as pay grades. Employers that do not have formal pay grades should especially note the implications of the absence of a formal pay structure. Without established pay grades, managers have wide discretion in setting pay – discretion which may turn out to be a liability in the post-Ledbetter Act era.

Regarding starting pay, most companies have policies that are intended to limit managers’ discretion in setting starting pay. Your self-audit should examine the written policies to assure that proper safeguards actually control managers’ discretion on setting starting pay and that controls are in place to ensure that the limits are followed. Written policies on starting pay should also provide appropriate guidance to managers on how to set starting pay.

Employers should also review their policies regarding merit and promotional pay increases to ensure that the policies establish decisional guidelines and limits on managers’ decision-making and should be prepared to take appropriate remedial action to correct any identified problems.

And finally, the analysis should also measure the extent to which actual pay decisions reflect adherence to your written policies.

Human Resources 4U specializes in developing salary, merit, and promotional structures along with all the appropriate policies linked to your structures to ensure compliance and to help you minimize the risk of pay discrimination claims in the future.

Human Resources 4U is a full service Human Resources consulting company specializing in small and midsize businesses.  Note: This article is presented with the understanding that we are not engaged in rendering legal advice.  If legal advice is required, the services of a competent attorney should be sought.

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Labor Related Executive Orders President Obama recently issued three Executive Orders (EO) that will have a significant impact on federal contractors and subcontractors. They also provide a glimpse into his views about organized labor.  In a prior blog I wrote about the Employee Free Choice Act (EFCA). I think these Orders should be seen as a step moving closer to passage of the EFCA. You can review my article on the EFCA at my blog: www.humanresources4u.net 

The first EO is:

Economy in Government Contracting: Under this Executive Order, costs incurred by an employer to advise or persuade employees concerning the exercise of their labor rights are disallowed expenses for federal contractors, effective immediately. The second EO is:

Nondisplacement of Qualified Workers under Service Contracts: When a service contract expires and a subsequent Contractor is awarded the contract to perform the same service, the new Contractor was free to hire the predecessor’s employees, a new workforce, or a combination of both. Under this Executive Order, the subsequent employer must now offer the employees of the predecessor employer jobs for which they are qualified. The employer must hold the jobs open for at least 10 days. After that, the employer may hire new employees. This is a clear reversal of President Bush’s Executive Order 13201  The third EO is:

Notification of Employee Rights under Federal Labor Laws: This Executive Order requires federal Contractors and their subcontractors to post a notice advising employees of their rights under federal labor law. The language of the required posting notice is yet to be determined, but it is expected to include topics such as the right to organize, the right to engage in collective bargaining, and other rights under the National Labor Relations Act. A Contractor that violates the terms of the notice or any related rules issued by the Secretary of Labor is subject to termination of the contract and possible debarment from future government contracts. This is a clear reversal of President Bush’s Executive Order 13204. 

I-9 Update

The U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed by 60 days, until April 3, 2009, the effective date for using the revised Form I-9, originally scheduled to go into effect today.  Please note:  Employers who use the new form prior to the April 3, 2009 effective date are subject to civil monetary penalties.   

Important Dates for HR compliance

• February 1 is the date that your OSHA 300A log needs to be posted if you are subject to OSHA recordkeeping
• February 2 is the date that you must start using the new I-9 forms
• May 21 is the new date for Federal Contactors to start using E-Verify
•  January 29 is the date the President signed the Ledbetter Fair Pay Act
  • The Act will require employers to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of their pay decisions. There is a lot in this act and I will post a more detailed description of it in a later blog. 

Human Resources 4U is a full service Human Resources consulting company specializing in small and midsize businesses.  Note: This article is presented with the understanding that we are not engaged in rendering legal advice.  If legal advice is required, the services of a competent attorney should be sought.