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Employment Law – What You Don’t Know Will Hurt You!

Did you know employment law is subject to the number of employees you have? No matter if you’re a start-up with a few employees, or your business is growing, you must comply with relevant mandated employment law. In today’s article, we will look at a few federal laws and the applicable number of employees so you can know how it impacts your business. We’ll also discuss how State laws can add another layer of complexity.

To understand the scope of many of the federal laws, it is important to know the definition of discrimination.

What is Discrimination in Employment Law?

In the context of employment law, discrimination means taking an adverse action, or a negative action, against an employee.

These adverse actions can be:

  • Failure to hire, train, or offer an opportunity or promote.
  • Failure to offer accommodation as required by law.
  • Offer a lower wage or fewer benefits as compared to their peers.
  • Take more aggressive disciplinary actions against one peer versus another.
  • Reduce pay or benefits.
  • Transfer an employee to a less desirable position, shift, or location.
  • Demote or terminate based on a discriminatory reason.

All of these could be valid reasons an employee would file a discrimination lawsuit against your company.

Federal Employment Law and Company Size

One of the federal employment laws that would apply to companies with 15 or more employees is the ADA or the Americans with Disabilities Act. This protects qualified individuals, whether they’re an applicant or an employee, that may have a disability, from unlawful employment discrimination. Employers are required to provide reasonable accommodation for their disabilities, unless it causes undue hardship.

Title VII of the Civil Rights Act applies to companies with 15 or more employees. This law prohibits discrimination based on race, color, national origin, religion, sex, gender identity, and the list could go on and on.

Another employment law that also applies to companies with 15 or more employees is the Pregnancy Disability Act. This is an amendment of the Title VII Act, which prevents individuals from being discriminated against for being pregnant or giving birth, or from being temporarily disabled due to medically related conditions because of pregnancy or childbirth.

Another law for companies with 15 or more employees is the Genetic Information, Non-discrimination Act (GINA). This makes it unlawful for employers to discriminate against an individual because of genetic information that may be found in family medical history. It also includes any kind of DNA information that might be acquired through testing.

A Few More Employees Means More Compliance Requirements

The Age Discrimination Employment Act applies to companies with 20 or more employees. This prevents discrimination against those who are 40 years old and older. It forbids mandatory retirement ages except for certain executives and high policymakers who are over 65.

The Family Medical Leave Act (FMLA) applies to companies that have 50 or more employees. This basically allows employees to take job protected leave to care for a family member with a serious health condition, or if they themselves have a serious health condition, or birth or adoption of a child.

The Affordable Care Act (ACA), also applies to companies with 50 or more employees. This act mandates and requires employees working at least 30 hours per week to be offered minimal essential health coverage at an affordable rate as all full time employees. If that doesn’t happen, then you could face some serious fines when it comes to the ACA.

Human Resources and State Law

It’s important to understand what laws apply to you at a federal level versus what laws apply to you at a state level. When it comes to state laws some states have heavy regulators. The West Coast and some of the Northeastern states have a little bit more content versus the federal law.

Some states have additional protected classes in employment law, like Title VII. This could include:

  • sexual orientation
  • arrest records when off duty
  • use of legal products and garnishments
  • credit information
  • marital status

Those are additional protected classes in multiple states such as pregnancy accommodation expansion. Some states have robust pregnancy accommodation laws. If an employee is going through a pregnancy related disability, certain laws protect these pregnant employees. Employers may still ask for a doctor’s note, etc., offer light duty, with the burden on the employee to prove that they are disabled.

More and more states are passing paid sick leave employment laws. Basically, many of the state laws are one hour of paid sick leave for every 30 or 40 hours worked, depending on the state. This allows them to use paid sick leave to take care of themselves, or a family member.  

Criminal History, Salary History, and Social Media

There are many states with a Criminal history inquiry ban. This is a ban which prevents employers from asking about a criminal history either until the interview is scheduled, or a contingent job offer is made to the candidate.  There also might be specific notice requirements if you as the employer decide not to hire an applicant because of their criminal history.

A salary history ban in some states prohibits employers from inquiring about a candidate’s current or previous wage, whether directly or through a third party. And some of the salary history bans are standalone employment law, while others are part of the larger Equal Pay Act.

And then lastly, there’s social media privacy. There are many state laws that prohibit employers from requiring or requesting employees or applicants to disclose their social media login credentials. Second, some state laws say employers cannot require or request that an employee or applicant access their personal social media in the employer’s presence or add the employer to their contacts or friends list. Some state employment laws prevent or prohibit retaliation or failure to hire should an applicant or an employee refuse such social media requests for access.

Covering Your Assets Through Employment Law

We know this is a lot of information to try to remember and digest. Let’s be frank. You didn’t get into business to become an employment law expert. Yet, failure to stay on top of it can cause a damaged business reputation and loss of revenue through litigation costs. The solution to this situation is working with an HR consulting firm who has your back. It’s easy and immediate to get help. What are you waiting for? Reach out today!

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Exploring Some Causes of Toxic Workplace Cultures

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What Employers Must Know About Hiring Employees With a Criminal History

toxic workplace
Compliance Employees HR Consulting Laws Small Business Talent Management
Exploring Some Causes of Toxic Workplace Cultures

Describing a workplace as “toxic” has become almost cliché in recent years; although all offices have a negative element or two, there are some that are truly toxic. That is, the culture is so negative that it has negative impacts on the business. These impacts can range from poor morale and lowered productivity to employee disengagement and high turnover. Let’s look at what impact it has on the business and what causes it?

Toxic Cultures and the Turnover Tsunami

In an article for BBC Worklife, Katie Bishop tells us that about 20% of U.S. workers have left their jobs because of toxic environments and 64% of employees in the United Kingdom “said that experiencing problematic behaviors at work had negatively impacted their mental health.”

Of course, no one would argue that toxic workplaces are desirable, but they exist nonetheless. So what are some of the factors that contribute to toxic cultures, and how can those factors be mitigated?

Factors Contributing to Toxic Workplace

A toxic culture isn’t necessarily about the size or structure of the organization. “A common conception is that toxic behaviors are often found in large corporations where competition is fierce and accountability is low – and yet some workers report that the same damaging culture can just as easily be found in smaller, less hierarchical organizations,” says Bishop.

Instead, toxic cultures often thrive when one or both factors are present: resource constraints and weak leadership and culture. Looking first at resource constraints, it makes sense that employees in companies with less money to spend on staff or other resources will be stressed and struggle to keep up with their workload, and stress is always a potential source for negative attitudes, hostility, and general toxicity.

When Toxicity Is Pervasive and Ongoing

Negativity and unhealthy behavior can crop up in any organization. What sets truly toxic cultures apart, though, is that they take root and stick around. That’s where the second factor comes into play. Organizations that lack strong leaders to stamp out toxic behavior or strong cultures that make such behaviors unacceptable become fertile ground for toxicity to grow and thrive.

While some workers might casually throw around the term “toxic workplace,” there are some organizations that truly deserve the label. Companies that are resource-strapped and lack strong leaders and robust cultures are often ripe for toxicity to spread. Addressing these underlying factors may not only help address existing toxicity but also prevent it in the future.

If you’d like support developing a healthy company culture, we’d love to help. Reach out today!

Compliance Employees HR Consulting Legal
National Disability Employment Awareness Month

October is National Disability Employment Awareness Month (NDEAM). Declared in 1988 by the United States Congress (though its roots go back to 1945 when Congress urged employment for WWII servicemembers with disabilities) , NDEAM is a good occasion for us to celebrate the contributions of people with disabilities to workplaces and the economy. We also recommend taking this time to better understand employer obligations under the Americans with Disabilities Act and consider how to be more inclusive and accommodating than what the law strictly requires. 

The DOL’s Office of Disability Employment Policy is commemorating NDEAM this year with the theme “America’s Recovery: Powered by Inclusion.” This theme “reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the national recovery from the COVID-19 pandemic.”

We’re glad to see this.

People with disabilities (1 in 4 adults in the United States) are at greater risk of poor outcomes from COVID-19. At the start of the pandemic, workers with disabilities lost their jobs at a higher rate than the general population. As the pandemic continued, those with intellectual disabilities were six times more likely to die from the virus than other members of the population. Helping people with disabilities stay safe and succeed as the pandemic continues will be essential to a full recovery, and employers can play a huge role in that. 

Supporting employees with disabilities may also be vital to the success of individual employers—now and after the recovery. According to a CNBC poll, nearly 80% of workers say that they want to work for a company that values diversity, equity, and inclusion. With roughly half of small businesses struggling to fill roles, competition for talent is fierce. Employers who don’t appear to believe that it’s important to include and support employees with disabilities put themselves at a huge disadvantage. 

What can you do to help?

First, make doubly sure you understand your compliance obligations related to applicants and employees with disabilities. We have lots of resources for you on the HR Support Center. If you search disability in the search bar, you’ll find articles, forms, guides, law summaries, letters, policies, Q&As, videos, and more.

Second, as the pandemic continues, do what you can to accommodate employees with disabilities who may be at greater risk of severe illness or death. Accommodations to consider may include remote work for those who can do their jobs from home and extra PPE (e.g., N95 masks, face shields, gloves) for those who need or want to work onsite. Other possible accommodations are different shifts, job changes to reduce physical proximity or public interaction, extra breaks (for handwashing or mental health), permission to keep a minifridge or other personal storage device at one’s workstation, and extra cleaning supplies. All in all, when an employee requests an accommodation, do what you can to try to make it work. Focus on what you can do, not what you can’t.

Third, stress to everyone that respect and empathy are nonnegotiable values. Employees who need extra support so they can do their jobs well aren’t going to ask for it if they believe their concerns will be dismissed or that they’ll be ridiculed or looked down on by coworkers. If they don’t feel like they can ask for an accommodation, they’re more likely to look for a job elsewhere. And if they stay, it’s unlikely that they will be as productive or successful if they feel unsafe and stressed out. That’s a lose-lose. But it’s a win-win when employees feel safe asking for accommodations and those accommodations enable them to succeed.

Compliance HR Consulting Miscellaneous Small Business
What is HR Compliance?

Running a business comes with no shortage of perks: the freedom to be your own boss, invest in an idea, steer its trajectory, and, with a little luck, create wealth. It has its challenges, too. Competition may be fierce. Demand for what you offer may be low. Costs may not be sustainable. But even if everything else is going your way, there’s one challenge that’s ever-present. We’re talking, of course, about HR compliance.

Defining HR Compliance

HR compliance is the work of ensuring that your employment practices conform to federal, state, and local laws. This work requires learning which laws apply to your organization and understanding what they require you to do. That’s easier said than done.

HR compliance is truly an art. It requires knowledge, skill, and cooperation. You have to be able to decipher legalese, know where to go to ask the right questions, and create policies and procedures that minimize business risk. You have to ensure that everyone from the executive team to newly minted managers know what they can and cannot do. You have to conduct investigations and enforce your rules consistently. And all this is just the bare minimum—necessary, but not enough to create a truly successful culture.

The work of compliance is never entirely done. Not only do new legal requirements appear on the regular, but, as you’ll read below, compliance obligations are often unclear. While some compliance obligations are definitive, others are unresolved, and a good number of laws require you to make a judgment call. Let’s look at each of these in turn.

Why HR Compliance Can’t Always Be Assured

Some employment laws take the form of “Do this” or “Don’t do that.” The requirements may be simple, like minimum wage, or complex, like FMLA, but either way there’s usually no real question about what you need to do or not do. Compliance with these laws is pretty straightforward. Don’t pay less than the minimum wage. Provide leave to eligible employees for the reasons that qualify, continue their health benefits (if applicable), and return them to their position when their leave ends. As long as you’re clear on the details, you’re not likely to lose sleep wondering if your policies and procedures are compliant.

Sometimes, however, those details are unsettled. Lawmakers don’t always specify everything a law requires before it passes or takes effect. Even when laws seem clear, trying to put them into practice often raises a lot of questions. And the legislature isn’t the only source of law: regulatory agencies demand their say, and courts get involved, too. To complicate matters, these branches of government don’t always agree with each other, and what they say today may not be what they say tomorrow. Keeping up with the latest official guidance takes time and persistence. It can feel like a marathon, when what you want is a quick sprint to the answer. You have other demands on your time, after all. 

Finally, a lot of employment laws have standards you have to follow, but they don’t tell you how. Neither the IRS nor the DOL, for example, tells you whether your workers are employees or independent contractors—unless there’s an audit or complaint. Instead, these agencies publish tests with general criteria that you use to make case-by-case determinations.

The Americans with Disabilities Act (ADA) works this way, too. Under the ADA, an employer is required to provide reasonable accommodations to employees with disabilities, with a few exceptions. One of the exceptions is that the accommodation doesn’t create an undue hardship on the employer’s business. The basic definition of an undue hardship is an action that creates a significant difficulty or expense. Although the law provides factors to consider in making this determination, the onus is on you to decide whether an expense or difficulty from an accommodation is significant. And, ultimately, your conclusion could be challenged in court.

Why HR Compliance Looks Like This

If HR compliance seems convoluted, that’s because it is. Our current legal landscape is the result of three competing philosophies about how the workplace should be governed, who should govern it, and whose rights in the workplace should be prioritized in the law.

Owner Control
According to the first view, business owners should have control over their workplaces and the work that takes place for the simple reason that they own the business. It’s their property, and as owners they should have the legal right to govern it. Employees have no right to control aspects of the workplace because the workplace isn’t theirs. They don’t own it. It’s not their property. If their desires don’t align with the owners, or if they don’t like the terms and conditions of their employment, they can and should go elsewhere.

Of course, an owner might employ managers or an executive team to make decisions about who to hire and fire, what to pay, how to assign work, and other such matters, but in principle the owner is still in charge. Advocates of this view include the economist Milton Friedman who, in 1970, famously wrote that corporate executives have a direct responsibility to conduct business according to the desires of the owners. The will of the owners reigns supreme. 

Worker Control
According to the second view, workers should have a say in the decisions that get made simply because those decisions affect them and their livelihoods. In this line of thinking, the governance of the workplace should adhere to the principles of democracy, although proponents for this view differ on how democracy in the workplace should be practiced.

In the 1930s, Senator Robert F. Wagner introduced the National Labor Relations Act to guarantee the “freedom of action of the worker” and ensure that workers were “free in the economic as well as the political field.” And, today, talk of democratizing the workplace usually refers to bolstering unions. But there are other proposals to note. Some champions of workplace democracy, like Senator Elizabeth Warren, have pushed for employee representation on corporate boards. Others favor cooperative models in which the division between employers and employees doesn’t exist.   

Full-fledged workplace democracy is still a fringe view, though. The very definition of an employee remains a worker who does not have the right to control what the work is, how it’s done, or how it’s compensated. However much authority employees are given to make decisions, however much influence they have over their superiors, they are not legally in charge. 

Societal Control
Advocates of the third view argue that the government has an interest in exercising some measure of control over the work and the workplace. In the employer-employee relationship, employers typically have significantly more power than employees—especially an employee acting as an individual. Frances Perkins, who served as Secretary of Labor and was a key architect of the New Deal, believed that government “should aim to give all the people under its jurisdiction the best possible life.” She saw a role for legislatures in countering long hours, low wages, and other conditions unfavorable to employees. 

How These Philosophies Have Played Out

In the United States, HR compliance is the result of these three competing and arguably incompatible philosophies. Government action with respect to employment has tried to empower workers and afford them certain rights, protections, and freedoms in the workplace, all while preserving the employer’s control over their business.

We can see this balancing act in the differences among state laws. Some states prioritize the right of owners to control their workforces and are loath to restrict that right through legislation. Other states act out of what they see as a duty to secure the rights of workers. Imposing obligations on employers doesn’t bother them.

We also see this balancing act in the way that employment laws tend to set parameters rather than dictate exactly what employers must do. You can pay employees whatever you want, so long as you pay at least the minimum, offer an overtime premium when applicable, and meet equal pay requirements. You can theoretically terminate employment for any reason or no reason at all (though we don’t recommend it); but you can’t fire someone for an illegal reason. Even laws that require a new practice, such as paid leave, allow flexibility provided the minimum conditions are met.

Takeaways

First, when you’re assessing your compliance obligations, understand that not all compliance obligations are clearly delineated or settled law. Unsettling as that may be, it’s how our system has been set up. In those cases, you’ll have to weigh your options and the risks involved, and then make a decision. Sometimes you may need legal advice in addition to HR guidance. Remember, though, that despite all the many employment laws on the books and in the imaginations of legislators, the system is designed to keep employers in charge of their work and workplaces. You can’t eliminate all risk, but by understanding the nuances and open questions, you can significantly minimize it.

Second, document your actions and decisions. It only takes an employee filing a complaint for enforcement agencies to get involved, but you are better protected if you can quickly and clearly explain to them the reason for your actions.

Third, evaluate whether your policies, procedures, and practices are satisfactory to employees. No employment law gets written in a vacuum, and no law is truly inevitable. The Fair Labor Standards Act came to be because workers and the general public felt that labor standards were unfair. Today we wouldn’t have people pushing for predictive scheduling laws if they felt that work schedules were already sufficiently predictable. Harassment prevention training wouldn’t be mandatory (where it is) if sexual harassment weren’t widespread.

Fourth, lead by example. Make good employee relations a key part of your brand and competitive advantage. Employees have higher expectations today than they used to. Meet those expectations and motivate other employers to do the same, and you may find that the compliance landscape of the future is less winding and boggy than it could have been.

Finally, we have an online portal (HR Support Center) that is available to our clients where you can learn about your compliance obligations. Our laws section breaks down federal and state employment laws in a way that people can understand, and the News Desk keeps you up to speed on the latest compliance obligations and contingencies you should consider. HR compliance is an art, and the first step to mastering it is learning what it entails and how it works.

Take a 30 day trial of our HR Support Center for FREE! Simply email linda@azhrhub.com today.

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Compensation Compliance Legal
Minimum Wage Updates 7/1/2021

Effective July 1, 2021, two states and several cities/counties will be increasing their minimum wage – this means payroll processes will have to be updated if you have employees in the specific areas. The federal minimum wage is currently $7.25, but many states and cities have their minimum wage set higher than that. Read below for all of the minimum wage updates that are effective July 1, 2021. 

CALIFORNIA

  • Berkeley – $16.32 (including youth work & training)
  • Emeryville – $17.13     
  • Fremont – $15.00 (≤25 employees)
  • Fremont – $15.25 (>26 employees)
  • Long Beach – $15.69 (hotels only)
  • Los Angeles City and Unincorporated Los Angeles County – $15.00 (≤25 employees)
  • Los Angeles City and Unincorporated Log Angeles County – $17.64 (hotels w/ 150+ rooms)
  • Malibu – $15.00 (≤25 employees)
  • Milpitas – $15.65 
  • Pasadena – $15.00 (≤25 employees)
  • San Francisco – $16.32 
  • San Francisco – $14.44 (government-supported employee)
  • Santa Monica – $15.00 (≤25 employees, non-hotel)
  • Santa Monica – $17.64 (hotels)

DISTRICT OF COLUMBIA

  • District of Columbia – $15.20
  • District of Columbia – $5.05 (tipped employee)

ILLINOIS

  • Chicago – $15.00 (>21 employees)
  • Chicago – $9.00 (>21 employees, tipped employees)
  • Chicago – $14.00 (4 to 20 employees)
  • Chicago – $8.40 (4 to 20 employees, tipped employee)
  • Chicago – $11.00 (youth wage)
  • Chicago – $6.60 (youth wage, tipped employee)
  • Cook County – $6.90 (tipped employee)

MARYLAND

  • Montgomery County – $13.50 (1 to 10 employees)
  • Montgomery County – $14.00 (11 to 50 employees)
  • Montgomery County – $15.00 (>51 employees)

MINNESOTA

  • Minneapolis – $14.25 (>100 employees) 
  • Minneapolis – $12.50 (≤100 employees) 
  • St. Paul – $12.50 (101 to 1,000 employees)
  • St. Paul – $11.00 (6 to 100 employees)
  • St. Paul (≤5 employees)

NEVADA

  • Statewide – $8.75 (employees who receive health benefits that meet certain criteria)
  • Statewide – $9.75 (employees who do not receive sufficient benefits)

NEW YORK

  • Cities outside of NYC – $15.00 (fast food employees only)

OREGON

  • Within Portland’s Urban Growth Boundary – $14.00
  • Nonurban Counties – $12.00
  • All other “Standard” Counties – $12.75
Compliance Employees Legal
Workplace Harassment

Over the past two years, the #MeTooMovement has changed the landscape of workplace harassment and other workplace issues. Even though the #MeTooMovement changed the landscape, workplace harassment is still is a very serious and common problem.

It is important for HR departments to be educated and aware of types of harassment and how to handle them. When equipped with the right information, HR and employee relations can be critical in identifying and eliminating all different types of workplace harassment before anything escalates. 

Here are the 5 most common types of workplace harassment:

  1. Sexual Harassment

Sexual harassment in the workplace is still common, even though the #MeTooMovement empowered victims to speak up. Unwelcome and offensive comments, unwanted physical attention, and requests for sexual favors are all considered sexual harassment in the workplace. 

2. Disability Harassment 

Disability harassment is when unfavorable treatment or harassment of employees with a physical or mental disability occurs. Disability harassment is very widespread in the workplace, so it is important for managers to be aware of the signs of this type of harassment. 

3. Racial Harassment

Racism is something that unfortunately occurs everywhere, but being able to identify it in the workplace is critical. Some common displays of racial harassment include displaying discriminatory symbols, mocking someone’s accent, making unwelcome comments about ones race, telling derogatory jokes, and using racial slurs. 

4. Sexual Orientation and Gender Identity Harassment

These two types of harassment are when individuals make derogatory, offensive or demeaning remarks based on a persons sexual orientation or gender identity, including transgender status. These two types of harassments are different and here’s why; sexual orientation harassment refers to whether a person is homosexual, heterosexual, or bisexual. Gender identity harassment refers to a persons self-identification as a man or a woman. 

5. Ageism

More than 1 in 3 employees feel that their age has prevented them from getting a job after they turned 40. Age discrimination is still common, even though it should not be. 

If your organization seems to come across workplace harassment issues, and you need help – let us know! AZ HR Hub is your #HRPartner, so you can focus on business!

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