MGMT210 Regent Work Life Balance in Large Organizations Case Study Paper Case Study Series on Work-Life Balance in Large Organizations. Review the WL Gore

MGMT210 Regent Work Life Balance in Large Organizations Case Study Paper Case Study Series on Work-Life Balance in Large Organizations. Review the WL Gore Case and answer the questions. Expected word count 500-700 words.Case Study #1Worklife Balance – Four Case StudiesNoe, R. (2016) Fundamentals of Human Resource Management(ISBN 9780077718367).New York, NY: McGraw Hill Education. HR Management Text
Chapter 3:
Providing Equal Opportunity &
A Safe Workplace
Updated Legal & Case Notes
HR: Leading People, Leading Organizations
© 2007 SHRM
Introduction
•
•
•
In the United States, the federal government has set some
limits on how an organization can practice human
resource management.
Among these limits are requirements intended to:
– Prevent discrimination in hiring and employment
practices
– Protect the safety and health of workers while they are
on the job
Companies that skillfully navigate the maze of regulations
can gain an advantage over competitors.
The next slides cover current legislative initiatives.
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The Regulation of HR Management
•
All three branches of the government play an important
role in creating a legal environment for human resource
management.
– Legislative
• Two houses of Congress
• Enacted laws governing HR activities
– Executive
• Includes many regulatory agencies & Executive
Orders
• Enforces laws passed by Congress
– Judicial
• Federal court system
• Interprets law
• Holds trials
Learn the basic details of the law from chart: Noe text pg 59.
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Employee Rights & Relations
• Negligent Hiring
– Employers responsible for thorough background
check
• Immigration Reform & Control Act (1986)
– Assure that applicants are legally qualified to work
in US (I-9 forms)
• Employment-at-will:
Unless specified in a contract, employer may
end employment relationship at any time w/o
cause.
Exceptions: contract (explicit or implied), public policy
violation (ask to perjure), breach of good faith (avoid
paying bonus)
Also – Drug Testing , Polygraphs, Closures
HR: Leading People, Leading Organizations
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Employment Law Update
Association of Corporate
Counsel
• Recurring Themes
–
–
–
–
Co-employment / Joint Employer Liability
Impact of Recent NLRB Decisions
Proliferation of State Laws
Increased Agency Enforcement & Systemic Initiatives
• What does this all mean and what should we be doing?
HR: Leading People, Leading Organizations
© 2007 SHRM
Wage and Hour Legal Trends Update
• Wage & Hour Issues
– Wage & Hour claims represent over 90% of the employment
class actions filed every year
– Federal wage & hour lawsuits filed nationally have increased
more than 400% since 2000, with a record high in 2015 of 8,781
• Employee Misclassification
– Exempt v. Non-Exempt Status
– New White Collar Exemption Regulation
– Resulting in the failure to pay overtime wages, failure to provide
meal and rest breaks, and to account for off-the-clock work
• Expansion of joint employer liability
• Pay Practices Issues Continue to Evolve at the State & Local Level
• Arbitration with Class Action Waiver to the Rescue?
HR: Leading People, Leading Organizations
© 2007 SHRM
White Collar Exemptions
• Salary basis test:
Employee must be paid a predetermined and
fixed salary that is not subject to reduction
because of variations in the quality or
quantity of work performed.
• Salary level test:
The amount of salary paid must meet a
minimum specified in the regulations.
• Duties test:
Primary duties must involve executive,
administrative, or professional duties, as
defined in regulations.
Rationale for white collar
exemptions:
Typically earn salaries well
above the minimum wage and
enjoy other privileges that
compensate them for longer
work hours—fringe benefits, job
security, advancement.
Work cannot be dispersed easily
to other workers.
HR: Leading People, Leading Organizations
© 2007 SHRM
Changes: Salary Level Will Increase
• New salary level for White Collar Exemptions: equal to the 40th
percentile of weekly earnings for full-time salaried workers based on
BLS data:
– $913 per week or $47,476 a year.
– BLS began tabulating data in 2015 at the request of the DOL.
• New salary level for Highly Compensated Exemption: equal to the 90th
percentile of earnings for full-time salaried workers based on BLS data:
– Final Rule is $134,004 per year–$2,577 per week.
– HCE only requires employee to have one exempt duty, effectively
amounting to anyone making more than $134,004 is exempt.
HR: Leading People, Leading Organizations
© 2007 SHRM
Who are Contingent Workers?
Anyone your organization engages to perform
work but who is not your organization’s
employee.
Includes
• Independent Contractors
– Consultants; Technical experts
– You pay them directly, frequently by 1099
• Other Employer’s Employees
– Staff augmentation; Outsourced labor
– You pay a third-party supplier
HR: Leading People, Leading Organizations
© 2007 SHRM
What Should Companies Do Now?
Assess your outsource staffing arrangements
• Do you have control? Right to control?
• Are there indicia of common law employment?
Assess your risks
• Is there a bargaining unit risk?
• Is there an ACA employer mandate risk?
• Is there a risk of liability for employment practices?
Take responsive actions
• Can you achieve similar results without control (or right of
control)?
• Can you negotiate indemnifications with your labor suppliers?
HR: Leading People, Leading Organizations
© 2007 SHRM
What’s New: NLRB Year in Review
ELECTIONS
•
Authorization Cards. Actual signatures no longer needed to
support petitions for election.
• Bargaining Units – Joint Employer Units. Employees of staffing
companies and their customers may be joined together in a single
bargaining unit (Miller & Anderson, 364 NLRB No. 39 (2016)).
• Continued Application of NLRB’s “Quickie Election Rule”
– NLRB’s revised election procedures decreasing the amount of
time between petition to election have been in effect for nearly
18 months
– In the first year, average time from petition to election was
decreased from 38 days to 24 days. Union win rates in initial
certification elections have not increased, however, and
continue to hover around 70%.
HR: Leading People, Leading Organizations
© 2007 SHRM
DOL’s 2016 FMLA Employer’s Highlights
https://www.dol.gov/whd/fmla/employerguide.pdf
1. Very user-friendly comprehensive discussion of employer obligations.
2. Generally nothing “new” but good resource.
3. DOL emphasizes that managers and HR must be able to recognize FMLAqualifying reasons for leave and properly initiate required notifications and
eligibility check – employee need not make formal FMLA leave request to
trigger employer obligations.
4. A number of cautions to employers about actions that can constitute
unlawful interference, such as:
? Requiring excessive proof of family relationship or in loco parentis
status
? If a medical certification is complete, employer may not ask for more
medical information or require a doctor’s note for each absence
HR: Leading People, Leading Organizations
© 2007 SHRM
Highlights from FMLA Pro-Employer Opinions
Issues regarding “interference” with FMLA rights
1. Employer’s intent is immaterial to an FMLA interference claim and
Employer can interfere by discouraging an employee from taking an FMLA
leave.
2. An employee’s voluntary and uncoerced acceptance of a light duty
assignment while recovering from a serious health condition does not
constitute interference.
3. Nondisruptive “de minimis” communications such as short phone calls
requesting the employee to pass on institutional knowledge are not
interference but requiring the employee to complete work-related tasks or
produce work product may be interference.
4. Failure to comply with call-in procedures. Termination for “excessive
absences” is not FMLA interference even though absences may have
qualified for FMLA protection but employee did not follow call-in
procedures and there were no “unusual circumstances” excusing her.
HR: Leading People, Leading Organizations
© 2007 SHRM
EEOC 2016 Employer’s Guide: Leaves Highlights
1.
2.
3.
4.
5.
6.
https://www.eeoc.gov/eeoc/publications/ada-leave.cfm
Employers must consider unpaid leave as a reasonable accommodation so long as it
does not create undue hardship – even if employee is not eligible for leave under the
FMLA or other law or policy or has exhausted FMLA or other leave.
“Maximum leave policies” may be permissible but employers must grant exceptions
when necessary as an accommodation. (EEOC v. Lowe’s $8.5 million settlement for
inflexible leave policy 05/2016)
“100% healed policies” not allowed. Employer must engage in individualized analysis to
determine whether or not employee can return to work with a reasonable
accommodation without causing an undue hardship or resulting in a direct threat to the
safety of the employee or others.
Reassignment is a potential accommodation. Employer must place a disabled
employee in a vacant position for which he or she disqualified and cannot require the
employee to compete with other applicants for the open position. This rule does not
apply to promotions or negate uniform seniority systems.
Factors that may be considered in evaluating undue hardship include: (1) frequency of
leave; (2) flexibility on when leave may be taken; (3) Whether intermittent leave is
predictable or unpredictable; (4) impact on a company’s operations.
Indefinite leave is not a reasonable accommodation.
HR: Leading People, Leading Organizations
© 2007 SHRM
Pregnancy Accommodations
•
•
•
•
•
Pregnancy itself is not a disability – however, complications caused by
pregnancy can be.
Pregnancy Discrimination Act: prohibits discrimination but fall short of
requiring accommodation in all cases.
Young v. UPS: Complicated ruling. Employer not absolutely required to
offer same accommodation to pregnant employees that it offers to nonpregnant employees — but must have a good reason for not doing so.
State laws: Many states have – or are adopting – laws requiring
pregnancy accommodations:
– Most recent: Colorado; Ohio (bill pending).
– Also: RI; Illinois; DE; NY; Alaska (public sector only), CT; LA; TX (public
sector only); MD; NJ; Dist. Col.; Minn.; WV; Nebraska; ND; Hawaii;
Utah; Philadelphia.
EEOC v. Motel 6 (8/31/16) The EEOC filed suit after Motel 6 place
pregnant employee with high risk pregnancy on forced leave of absence.
(https://www1.eeoc.gov//eeoc/newsroom/release/8-31-16.cfm?renderforprint=1) .
HR: Leading People, Leading Organizations
© 2007 SHRM
Jurisdictions That Have Paid Sick Leave Laws
States
Cities
Counties/Districts/Territories
California
California: Emeryville, Los Angeles,
Oakland, San Diego, San Francisco, Santa
Monica
Illinois: Chicago
Minnesota: Minneapolis
New Jersey: Bloomfield, East Orange,
Elizabeth, Irvington, Jersey City, Montclair,
Newark, New Brunswick, Passaic,
Paterson, Plainfield, Trenton
New York: New York City
Pennsylvania: Philadelphia
Washington: Seattle, Spokane, Tacoma
District of Columbia
Connecticut
Illinois (effective 1/1/17)
Massachusetts
Oregon
Vermont (effective 1/1/17)
Puerto Rico
Montgomery County (MD)
Paid sick leave laws are also being considered in Alaska, Arizona, Chicago, Florida, Hawaii, Louisiana, Maryland, Michigan, St. Paul (Minnesota), Nebraska,
Nevada, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Virginia, Washington, and West Virginia. In
addition, the U.S. Department of Labor has issued a proposal that requires federal contractors and subcontractors to provide workers with seven days of
paid sick leave on an annual basis for contracts starting on 1/1/17.
HR: Leading People, Leading Organizations
© 2007 SHRM
Jurisdictions That Have Paid Family Leave Laws
States
Cities
Pending legislation
California
San Francisco
Massachusetts
New Jersey
Connecticut
New York
District of Columbia
Rhode Island
Washington (unfunded)
The latest trend: Employers offering their own paid Family Leave Programs if when not legally required. Examples: Facebook; Netflix;
Hilton; Patagonia; Etsy; Bank of America; Johnson & Johnson
Paid Family Leave was the topic of several speeches at the 2016 DNC.
HR: Leading People, Leading Organizations
© 2007 SHRM
The EEOC
• Targeting widespread patterns or
practices of discrimination
• Started in 2005 with its Systemic
Discrimination Task Force
• One Charge can Launch into a
Class Action
• Respond to every charge
knowing that the EEOC is looking
for more
• EEOC requests are getting
broader and more onerous
Submissions to be made via Internet
Portal (this has unexpected but
significant effects);
EEOC will share your position
statement with Charging Party (don’t
expect the same in return);
Specific requirements for submitting
confidential information;
Extensions of time to respond more
limited, closely scrutinized;
Stricter scrutiny of position
statements that are generalized or fail
to provide supporting documents;
EEOC specifies certain information
expected — but beware of systemic
initiative!
Adds “W-2 earnings” and work hours
for all employees to EEO-1 reports in
2017
• Reported by race and gender
in 12 pay bands in 10 EEO-1
categories
• Reporting burden will
increase by 1,933%
EEOC and OFCCP will use pay data for
targeted systemic pay investigations
EEOC will publish pay data by industry
and geography for employers to
“benchmark” against
• Who else can use the pay
data? Unions, plaintiffs’
counsel, competitors, the
press . . .
HR: Leading People, Leading Organizations
18
© 2007 SHRM
Areas of Particular Enforcement:
Transgender Claims
Key Concepts
SEX
SEXUAL
ORIENTATION
GENDER
IDENTITY
GENDER
EXPRESSION
HR: Leading People, Leading Organizations
© 2007 SHRM
New OSHA Developments
1.
2.
3.
4.
5.
6.
7.
Reporting of workplace accidents
Electronic record-keeping
New Anti-Retaliation Provisions
Post-accident Drug & Alcohol testing
Safety Incentive Programs
New whistleblower investigations manual
Increases in penalties
HR: Leading People, Leading Organizations
© 2007 SHRM
Federal Equal Pay Laws vs. State Laws:
Key Differences
California
Fair Pay Act
New York
Fair Pay Act
Massachusetts
Pay Equity
Federal
Equal Pay Act
“Comparable character” or
“comparable operations”
Comparator
“Substantially similar work”
“Equal work”
Same Establishment
Defense
No
Same geographic region, no
larger than a county
Wage Difference to Be
Explained
“Entire” wage difference
No express “entire” difference
requirement
Equal work
No
No express “entire”
difference requirement
Affirmative Defenses
Damages
Wage differential, including
interest thereon, equal amount of
liquidated damages, attorney’s
fees and costs
Narrows definition of “bona fide
factor other than sex” -must be
“job-related” and “consistent
with business necessity”
Wage differential, liquidated
damages up to 300%, attorneys’
fees and costs
No express “entire” difference
requirement
Three years
Six Years
No
No “entire” difference
requirement
Legitimate, non-discriminatory
basis for pay differential
Seniority, merit, quantity or
quality of production, or a
factor other than sex
Wage differential, equal
amount of liquidated
damages, attorneys’ fees
and costs
Wage differential, liquidated
damages, attorneys’ fees and
costs
One year
Statute of Limitations
No requirement of substantially
equal work; not limited to gender;
covers all protected classes
Yes
Seniority
Narrows definition of “bona fide
factor other than sex” -must be
“job-related” and “consistent with
business necessity”
Title VII
Three Years
In addition to other relief
provided under Title VII, back pay
for up to two years prior to the
Charge.
360/180 days for Charge **but
Ledbetter Fair Pay Act applies
HR: Leading People, Leading Organizations
© 2007 SHRM
What to Look for in 2017
In general, states—and localities—have been
legislating where the federal government has not,
including with respect to
•
•
•
•
Paid Sick Leave
Fair Pay
Criminal Background Checks
Parental/Family Leave
Generally, seeing an expansion of employee rights.
HR: Leading People, Leading Organizations
© 2007 SHRM
EEO
• Equal Employment Opportunity:
The condition in which all individuals have
an equal chance for employment regardless of
their race, color, religion, sex, disability, or
national origin.
• This EEO “condition” is created through:
–
–
–
–
Constitutional amendments
Legislation
Executive orders
Court decisions
HR: Leading People, Leading Organizations
© 2007 SHRM
Table 3.1
Summary of Major EEO Laws
and Regulations
HR: Leading People, Leading Organizations
© 2007 SHRM
Major National Employment Legislation
•
Congress has passed laws designed to provide equal
opportunity and in later years has passed additional laws that
have extended EEO protection more broadly.
–
–
–
–
–
–
–
–
–
–
–
Title VII of the Civil Rights Act of 1964
Equal Employment Opportunity Commission (EEOC -1972)
Age Discrimination in Employment Act (ADEA)
Vocational Rehabilitation Act of 1973
Pregnancy Discrimination Act of 1978
Americans with Disabilities Act of 1990
Civil Rights Act of 1991
Fair Labor Standards Act 1938
Equal Pay Act of 1963
Uniformed Services Employment and Reemployment Rights Act of
1994
Occupational Safety & Health Act (OSH Act)
HR: Leading People, Leading Organizations
© 2007 SHRM
EEO: Constitutional Amendments
Thirteenth
Amendment
Fourteenth
Amendment
• Forbids states from taking
• Abolished slavery in
life, liberty, or property
United States.
without due process of
• Has been applied in
law.
cases where
• Prevents states from
discrimination involved
denying equal protection
symbols and incidents
of discrimination.
of slavery.
• Applies to decisions or
actions of government or
private groups.
HR: Leading People, Leading Organizations
© 2007 SHRM
EEO: Legislation
Civil Rights Acts
(1866 & 1871)
• Civil Rights Act of 1866
granted all persons same
property rights as white
citizens.
• Civil Rights Act of 1871
granted all citizens right to
sue in federal court if they
feel they have been deprived
of some civil right.
Equal Pay Act (1963)
• Men and women in an
organization doing the same
work must be paid equally.
• Equal is defined in terms of
skill, effort, responsibility,
and working conditions.
HR: Leading People, Leading Organizations
© 2007 SHRM
EEO: Legislation
Title VII Civil Rights Act
(1964)
• Prohibits employers from
discriminating based on:
– Race
– Color
– Religion
– Sex
– National origin
• Applies to organizations that
employ 15 or more.
Age Discrimination in
Employment Act (ADEA)
• Prohibits discrimination
against workers who are
over the age of 40.
• Age discrimination
complaints make up a large
percentage of complaints
filed with EEOC.
HR: Leading People, Leading Organizations
© 2007 SHRM
Age Discrimination in Employment Act (ADEA)
– Outlaws discrimination in employment
decisions based on a person’s age (over 40).
– ….whether it’s intentional or not.
Age Discrimination Complaints 1991-2006
HR: Leading People, Leading Organizations
McGraw-Hill/Irwin
© 2007 SHRM
ADEA in U.S. SUPREME COURT
Meacham v. Knolls Atomic Power
Laboratory (June 19, 2008)
• Under ADEA employer bears burden of
persuasion on “reasonable factors other than
age” (RFOA) defense
• Plaintiff still retains burden to isolate and
identify specific employment practices
responsible for alleged disparities
• Documentation to establish RFOA is essential
HR: Leading People, Leading Organizations
© 2007 SHRM
EEO Legislation
Vocational Rehabilitation
Act (1973)
Vietnam Era Veteran’s
Readjustment Act (1974)
• Covered organizations must
engage in affirmative action
for individuals with
disabilities.
• Employers are encouraged to
recruit qualified individuals
with disabilities and make
reasonable …
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