Legal Compliance 1

1
Legal Compliance 1

• MANA 3320
• Dr. Jeanne Michalski
• Michalski_at_uta.edu

2
Legal Issues for HR Managers

• Sexual Harassment 
• Equal Opportunity 
• Age Discrimination 
• Wrongful Discharge 
• Background Checks 
• Employee Benefits 
• Health Insurance

• Disabilities  
• Immigration
• Contingent Workers 
• Non Competition Agreements 
• Privacy 
• Whistleblowers
• Family Medical Leave  

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Primary EEO Laws and Regulations

• Equal Pay Act of 1963
• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967
• Pregnancy Discrimination Act of 1978
• Americans with Disabilities Act of 1990 (ADA)
• Civil Rights Act of 1991

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Other HR Laws / Regulations

• Classifying Employees
• FLSA and Internal Revenue Code
• Affirmative Action
• Executive Order 11246
• Immigration
• Immigration Reform and Control Act
• Compensation and Benefits
• COBRA
• FMLA
• State Laws Regulations
• http//www.twc.state.tx.us/
• Additional Regulations
• Workplace Safety
• Labor Unions
• Many others.

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What are the differences?

• Diversity
• Equal Employment Opportunity
• Affirmative Action

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Equal Opportunity vs. Affirmative Action

• Equal Opportunity
• Employment practices must guarantee equal
  opportunity to employees and applicants based on
  protected class differences.
• Composition of workforce depends on applicants as
  long as all groups have equal opportunity.
• Affirmative Action
• Employment practices should encourage a workforce
  that reflects the gender and racial composition
  of the local population.
• Companies should seek applicants and provide
  opportunities for underutilized minorities to
  guarantee representation in the workforce.
• No business is ever required to hire someone not
  qualified for a job.

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Equal Opportunity vs. Affirmative Action

• Equal Opportunity
• Applies to private employers with more than 15
  employees.
• Defined by a number of laws and court cases
• Enforced by the EEOC
• EEOC responds to complaints
• Affirmative Action
• Applies to government contractors and
  court-ordered employers.
• NO affirmative action requirements for others.
• Defined by Executive Order 11246
• Written document with targets for minority
  hiring.
• Enforced by the OFCCP
• OFCCP responds to complaints and conducts audits

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Equal Opportunity Defined

• Protected Classes
• Race, color, religion, sex and national origin
• Age and disability (added through ADA and ADEA)
• Reverse discrimination
• Disparate treatment vs. Adverse Impact
• Private employers with more than 15 employees.
• EEO does NOT require preferential treatment
• Quotas are illegal
• http//www.eeoc.gov/abouteeo/overview_practices.ht
  ml

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Protected Groups

• Race
• Color
• Religion
• Sex
• National origin
• Age
• Disability

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Civil Rights Act of 1964 Title VII

• (a) It shall be an unlawful employment practice
  for an employer
• (1) to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individual's race, color,
  religion, sex, or national origin or
• (2) to limit, segregate, or classify his
  employees or applicants for employment in any way
  which would deprive or tend to deprive any
  individual of employment opportunities or
  otherwise adversely affect his status as an
  employee, because of such individual's race,
  color, religion, sex, or national origin.

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Civil Rights Act of 1964 Title VII

• (a) It shall be an unlawful employment practice
  for an employer
• DISPARATE TREATMENT
• (1) to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individual's race, color,
  religion, sex, or national origin or
• ADVERSE IMPACT
• (2) to limit, segregate, or classify his
  employees or applicants for employment in any way
  which would deprive or tend to deprive any
  individual of employment opportunities or
  otherwise adversely affect his status as an
  employee, because of such individual's race,
  color, religion, sex, or national origin.

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Enforcement Agencies

• Equal Employment Opportunity Commission (EEOC)
• All private employers with more than 15 employees
• EEO 1 for more than 100 employees
• Office Of Federal Contract Compliance Programs
  (OFCCP)
• Government contractors or sub-contractors.
• Covers approximately 26 million or nearly 22 of
  the total civilian workforce.
• OFCCP requires a contractor to engage in a
  self-analysis for the purpose of discovering any
  barriers to equal employment opportunity.
• Investigates complaints of discrimination.

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Civil Rights Act of 1991

• Followed Wards Cove Packing vs. Antonio (1989)
• Prohibits race norming of tests.
• Plaintiffs can sue for punitive damages in cases
  of intentional discrimination.
• Adverse impact prohibited for each piece of a
  selection system.
• Burden of proof on the employer.
• Prohibits quotas in selection.

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Presentation of Evidence

• Plaintiff (usually the employee) charges
  discrimination and presents evidence of adverse
  impact or direct discrimination.
• If prima facie (at first appearance) is
  established, the employer must then show that
  discrimination did not occur.
• Prima Facie requires
• The applicant was not selected OR
• The applicant appeared qualified
• Others were hired for the position

4/5ths Rule
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Presentation of Evidence
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4/5ths RULE
The selection rate for any protected group should
be no less than 4/5ths or 80 of the selection
rate for the group with the highest rate of
selection. Number Hired Selection Rate
(SR) Number of Applicants If SR1 .8
gt SR2, then Disparate Impact.
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4/5ths Rule

• Assume 200 employees were selected from a pool of
  500 applicants (200 black and 300 white). Of the
  employees selected 60 were black and 140 were
  white.
• Selection Rates
• White 140 / 300 46.7
• Black 60 / 200 30
• 4/5ths Rule .467 X .8 .374 37.4
• Since 30 (actual selection rate) is less than
  37.4 (4/5ths
• comparison selection rate) evidence of
  discrimination exists.

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EEOC Remedies

• Back pay the difference between what the person
  actually earned and what they would have earned
  without discrimination.
• Compensatory damages.
• Job relief including reinstatement to a job and
  retroactive seniority.
• Court order that the employer reform its
  discriminatory practices.

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Defense of Discrimination

• Job Relatedness
• Judged on an individual basis
• Bona Fide Occupational Qualification
• Must be present for all who hold that job
• If is required for the job then it does not
  matter that it has adverse impact
• Business necessity
• Seniority

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Record Keeping

• EEOC requires that employers keep all personnel
  records for one year after termination.
• Written descriptions of benefits plans (such as
  pensions) and any seniority or merit system.
• Fair Labor Standards Act (FLSA) and the Equal Pay
  Act, require employers to keep payroll records
  for at least three years.
• All records relevant to wages including wage
  rates, job evaluations, and seniority and merit
  systems.

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Employment Information Report (EEO-1)

• EEO-1 survey is authorized by Title VII and the
  Equal Employment Opportunity Act of 1972.
• All employers with 15 or more employees are
  required to keep employment records as.
• Employers are required to file an EEO-1 report
  on an annual basis if they
• Employ 100 or more employees
• Employ 50 or more employees and have Federal
  contracts totaling 50,000 or more.

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EEO vs. Affirmative Action

• Equal Employment Opportunity
• Collection of laws that apply to all
  organizations
• Aimed at ending discrimination
• Affirmative Action
• Executive Order 11246
• Applies only to (1) government and contractors
  (2) court orders and (3) voluntary programs.
• NO affirmative action requirements for others.
• Written document with targets for minority
  hiring.

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Affirmative Action Program (AAP)

• Develop a written program for each establishment
• Identify potential problems in the participation
  and utilization of women and minorities.
• Gives the specific procedures and the good faith
  efforts to provide equal employment opportunity.
• If there is underutilization, provides gives
  targets (not hard quotas) and timetables.
• Expanded efforts in outreach, recruitment and
  training.

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AAP Statistics

• Flow Statistics
• Examines selection rates by group
• 4/5 ths rule
• Availability and utilization analyses
• Employee distribution compared with local
  population
• Stock Statistics
• Concentration Statistics
• Examining placement of women and minorities by
  job category

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Utilization Analysis

• The process of comparing the composition by race
  and sex for jobs within an organization against
  composition of the employers relevant labor
  market.
• The workforce is at parity when its composition
  matches the relevant labor market.
• If the workforce composition is below external
  figures, the affected protected classes are
  underutilized and the employer should take
  affirmative steps to correct the imbalance.

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Availability Analysis

• U.T. System determines minority availability by
• The minority population in the surrounding labor
  market.
• The minority unemployment rate in the surrounding
  labor market.
• The percentage of the minority workforce as
  compared with the total workforce in the
  surrounding labor market and Texas.
• The availability of promotable and transferable
  minorities within U. T. System Administration.

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HW 2

• Find two help wanted ads from any source.
• A job that is attractive to you
• A job that sounds terrible
• Provide a short explanation of why you chose each
  of the ads.
• Include copies of the ads (or full-text) and
  where they were found.
• Due September 15