employment law
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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employee discipline
Employee Discipline – Get it Right!

No one enjoys having to initiate employee discipline. Yet, this is part of the manager’s responsibility to maintain order and workplace compliance. There’s a few steps that must be followed in order to manage appropriate disciplinary actions and it all begins – and ends – with documentation.

Disciplinary Actions Must Be In Writing

Anytime it is appropriate to discipline an employee, put it in writing. This can be on paper and filed in a paper filing system, sent in email and then printed and saved to employee’s file, or shared and recorded to a digital personnel file. This is for the protection of the manager and the company and it supports an appropriate manager-employee relationship.

Employee Discipline Must Be Timely

It is important to issue the discipline right away. Don’t wait three weeks or until their next performance review. If the issue is a big enough deal to impact the employee’s current or future standing, do it right away. Waiting is not good practice.

Disciplinary Action Must Never Be a Secret

It is not appropriate to keep an infraction secret from the employee and then drop it like a bomb in an employee review. The employee must know about it when it happens. Having issued the discipline in a timely manner and recorded it in writing, provides documentation in support of a future promotion or demotion.

All Disciplinary Records Must Be Filed

No matter what form (paper, email, digital) employee discipline is issued, the disciplinary action must be put in the employee’s personnel file. This is not something you leave laying in the “file” bin or somewhere on or in your desk. Putting proper documentation in the personnel file is necessary for Human Resources to prepare for any litigious actions from a demotion or termination.

Do you have a particularly difficult disciplinary situation you’re struggling with? We’d love to help so you stay in compliance and implement a healthy disciplinary practice. Reach out! We’re here to help.

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Employee Training is No Longer Optional

What is HR Compliance?

Pump Act Update
“Pump Act” Update You Need to Know!

As of April 28, 2023, a Pump Act violation can make an employer liable for legal or equitable remedies under the FLSA. In other words, if an employer violates an employee’s right to reasonable break time and space to pump breast milk, the employee can take appropriate legal or equitable remedies under the FLSA.

If you’re not familiar with the legislation, here’s a Fact Sheet.

The “Pump Act” supports a lactating mother’s right to fulfill her desire to breastfeed her child. It is the goal of legislation to help reduce socioeconomic disparities in breastfeeding rates and the related barriers to breastfeeding for working mothers.

Employers who understand the benefits of breastfeeding can become an advocate and in doing so support better health for mother and child. Not only is breastfeeding good for mother and child, but studies show a mother choosing to breastfeed reduces costs for an employer since health risks to breastfed babies are lower and consequently reducing health care costs.

Here’s a Mini-Guide to help you become a supportive employer to the needs of lactating employees.

Do you have questions about staying in compliance with laws like this and more? Reach out! We’re here to help.

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Is Work Overload a Choice You’re Making?

Employee Training is No Longer Optional

pay transparency
Four Things Employers Should Know About Pay Transparency

Four Things Employers Should Know About Pay Transparency

Have you heard about pay transparency? It’s the idea that companies should be open with employees and applicants about pay and, more broadly, what factors they include when making decisions about compensation.

But pay transparency isn’t just about what current and would-be employees want. These expectations have now made their way into state and local law. For a sizeable number of employers and their employees, pay transparency is no longer just a nicety. Whether you’re in a location that’s passed a pay transparency law or are simply curious about what this new trend might mean for your businesses, here are four things you should understand.

1. Pay Transparency Is the Next Frontier of Pay Equity

The federal Equal Pay Act went into effect in 1963, but it hasn’t brought an end to pay disparities between men and women. Neither have most state laws with the same objective. Long story short: the laws weren’t strong enough, and they didn’t account for all the causes of unequal pay. In many cases, it has been possible for an employer to comply with these laws while still offering unequal pay for essentially equal work.

Often, it’s not that employers have deliberately chosen to pay women less than men for the same jobs. In many cases, the basis for pay differentials has seemed sensible, such as salary history. But it turns out that basing pay on salary history perpetuates discrimination over an employee’s career. Mindful of these facts, cities and states across the country have instituted salary history bans and implemented other legal measures to strengthen pay equality. Pay transparency laws are part of this trend.

So far at the state level, Colorado, California, and Washington have passed laws requiring that employers post pay ranges within job posting and ads, while New York is on the brink (just waiting for the governor to sign). What these laws have in common is a new requirement that certain organizations disclose pay ranges in job postings.

2. Pay Transparency Laws and Practices Encourage Employees to Talk About Their Pay

Once pay ranges are visible on job postings, everyone from job hunters to competitors to current employees can see how their own pay compares to the range offered. That information is useful to job seekers considering whether to apply and how much that type of job pays in the current market. It’s useful to competitors who may try to poach talent. And it’s useful to employees who may wonder whether they’re paid equitably for their work.

If pay ranges are too large, employees will think you’re acting in bad faith or wonder who among them makes that little or that much. However, if they are reasonable, but you have current employees outside of those ranges, there may be gossip, organizing, confrontations, or all of the above. When they are reasonable and your current employees are paid in line with what you’ve posted (phew), you still may get inquiries about how someone’s position in the range is determined.

3. Employees Have a Legal Right to Discuss Their Pay

That’s right. Pay transparency extends to employee to employee. You may have heard about companies telling their employees not to share how much they make. Or you may have done that yourself. But that’s an engraved invitation to a lawsuit. Under federal law, employers may not prohibit non-supervisory employees from discussing their wages with one another. Employers may not in any way discipline or retaliate against an employee for discussing their wages or other terms and conditions of employment. This infringes upon employees’ protected rights under Section 7 of the National Labor Relations Act (NLRA). Section 7 protection includes discussions about wages, benefits, treatment by managers, facilities, safety issues, and just about anything else that two or more employees might have a stake in. In addition to rights under federal law, many employees (including supervisors) have protections under state laws that allow them to freely discuss their wages.

We strongly recommend that employers immediately eliminate any written or unwritten policy telling employees that discussion of wages is discouraged or prohibited, or that wages are confidential, and also discontinue any written or unwritten policy of disciplining or terminating employees for this behavior.

4. Pay Transparency Can Be Good for Business

Pay transparency is ultimately a boon for employers and employees alike. First, it saves time and money. Recruiters and hiring managers waste a lot of time and energy processing applications and interviewing candidates who are destined to decline any offer because the compensation doesn’t match their expectations or fit their needs. By disclosing compensation up front, employers discourage those people from ever applying. Second, pay transparency on job postings significantly increases the number of applicants. Many job seekers are unwilling to apply for positions that don’t indicate a range. Others will value the transparency for what it says about your organization. In a tight labor market like we’re experiencing now, employers should take any leg up they can get. Third, it makes it easier for organizations to comply with equal pay laws. You can’t as easily put pay equity on the back burner when pay ranges are front and center.

Should you have questions about pay transparency, we’d love to help. Contact us at your convenience.

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6 Steps to Determine What to Pay an Employee

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Interview Bias Impacting Hiring Decisions

Even the most seasoned of interviewers may fall victim to some common interviewing bias. Managers need proper training to conduct interviews that are non-discriminatory in nature and to avoid exposure to discrimination claims. In addition, awareness of these biases can make interviewers more effective in selecting the right candidate. Some forms of bias are described below.

  • Stereotyping. Stereotyping involves making generalized opinions about how people from a protected class such as sex, religion, age, race, etc. appear, think, act, feel or respond. For example, assuming a male would prefer being employed in a construction job over a teaching job.
  • Inconsistency. Some managers utilize different sets of questions to interview for the same job position amongst different individuals. For example, asking Hispanic candidates about their bilingual skills versus Caucasian applicants is not a recommended practice.
  • First Impression. First impressions can leave a lasting impression. Sometimes during the interview process, the interviewer takes the first thing he or she notices about the candidate and forms his/her opinion regarding the applicant on the first impression. This bias may benefit or harm the candidate’s chances of selection.
  • Halo/Horn Effect. If the interviewer finds one good trait, he or she will favor the candidate (halo). When the interviewer finds one negative trait, he or she will see that to be a disqualifier for the position (horn).
  • Contrast Effect. Contrast bias is present when candidates are compared against each other rather than evaluated based on the job requirements. The tendency is to base a candidate’s individual ranking on one’s position relative to others in the group. If the interview pool consists of a number of outstanding candidates, an average candidate will not be selected. But in a substandard pool, the average candidate may appear to be highly qualified.
  • “Similar to Me”. The “similar to me” effect occurs when the interviewer identifies with the candidate on a personal level, rather than evaluates the candidate on job-related criteria. For Example: The candidate attended the same university as the interviewer.
  • Cultural Noise. This occurs when the candidate’s responses are not factually based, but are socially acceptable answers. Basically, the applicant tells the interviewer what they think the interviewer would like to hear or will help secure the job.

Interview bias may occur intentionally or unintentionally. It is important to be aware of how biases may affect your decision-making when interviewing candidates. Keep biases at bay to ensure equality and effectiveness in the interview process.

toxic workplace
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!