Best Practices to Avoid Discrimination Claims

Putting Preventative Discrimination Measures in Place Implementing best practices to avoid discrimination claims is something every employer should do. Fortunately, guidelines can help employers during hiring, with employment conditions and also in general. The Equal Employment Opportunity Commission (EEOC) provides the following guidelines. General Practices General practices include: Training Human Resources managers, company supervisors and all employees on EEO laws. Ensure they understand the laws and enforce them. Also employers should hold them accountable. Promote an inclusive workplace culture. Encourage respect for differences and professionalism. By encouraging open communication and early dispute resolution, you can often avoid lawsuits. Alternative dispute resolution, such as mediation or arbitration can also help resolve issues. Avoid subjective decision-making by establishing neutral and objective criteria. Promotional and Hiring Process When promoting jobs and hiring, do the following to avoid discrimination: Diversify the candidate pool. Conduct self-analyses to determine whether promotional and hiring processes are treating protected classes differently. Correct discrepancies. Analyze jobs in terms of duties, function and relevant competency required. Then devise objective, job-related qualification standards for evaluating candidates. Ensure your selection criteria does not disproportionately exclude individuals in protected classes. Communicate about and make job openings known to all eligible employees. If using an outside agency, make sure it is not using discriminatory practices for candidate searches. Employment Conditions You should ensure the terms, conditions and privileges of employment are equal and fair for all workers. The following guidelines can help you with this: Ensure that you base employee job evaluations on performance and give comparable ratings for comparable jobs. Keep evaluations consistent and monitor to ensure no potential discrimination is involved....

Avoiding Discrimination in Remote Work Arrangements

Treating Remote Workers Fairly Avoiding discrimination in remote work arrangements has become increasingly relevant for employers. With the advent of COVID-19, and now the Delta variant, more employees have been working at home. On one hand, remote work solves the problems of wearing masks, maintaining social distancing and requiring vaccination. On the other hand, employers may prefer to have employees available onsite. Onsite work is convenient for face-to-face interaction, training or other related employment activities. However, when does requiring an employee to work onsite evolve into a potential discrimination claim? EEOC Guidance on Discrimination in Remote Work Arrangements The Equal Employment Opportunity Commission (EEOC) states that sometimes working from home is a reasonable accommodation. The EEOC bases this guideline with example using the American with Disabilities Act (ADA). The example given involved an employee with a request filed through her psychiatrist for permanent remote work arrangements. To deny the request, the employer would have to show the remote work caused undue hardship for the company. Since many employees have successfully worked from home during the past year of COVID-19 isolation, proving hardship might be difficult. This could be true if the worker requesting permanent home work had performed successfully. Perhaps remote work was also successful for other employees. To deny the request for telework, an employer would have to show the following: An essential function of the job requires in-person performance The telework would cause undue company hardship Ensure Non-Discriminatory Treatment Keep in mind, protected characteristics require employers to treat employees equally and fairly. Protected characteristics include disability, age, religion or national origin, to name a few. While you...

NYC Mandatory IRA Retirement Coverage

NYC Is Requiring Retirement Plans for Most Employees A NYC Mandatory IRA Retirement Coverage is now law for certain employees of private businesses. The businesses affected by the law are ones in NYC that do not offer employees a retirement plan. The law also applies to businesses with five or more employees. What Are the Details of the Required Retirement Plan? Mandatory auto-enrollment exists for employees. The mandatory retirement plans do not require employers to make contributions. However, the plans require them to enroll employees who work at least 20 hours/week and are age 21 or older in a plan. Moreover, the default rate for employee contribution is five percent. Even so, employees can adjust the rate up or down. They can also opt-out of the plan if they wish. The cap on IRA contributions is the same as the yearly federal IRA maximum. The maximum is currently $6,000 or $7,000 for individuals 50 or older. If the employee changes jobs, the IRA is portable, and they keep their accounts. They can also roll over the IRA to the employer’s plan, if eligible. When Does Compliance Start? The New York City Council enacted the law on May 11. Employers must begin complying with the law three months from that date. How Does NYC Enforce Compliance? The law established a retirement savings board to oversee the program. The Mayor has the authority to appoint three members. Their powers include: Determining the start of the program Contracting with financial institutions and administrators Minimizing fees and costs for the program’s administration Creating a process for those employees to participate who are not...

Expanded Criminal Background Check Rules

Guidelines When Using Criminal Background Checks Criminal background check rules for employers are more extensive now. New amendments for the New York City’s Fair Chance Act (FACA) went into effect on July 29, 2021. What Changed? The law about conducting criminal background checks previously only applied to job applicants who had received a conditional job offer. However, the new amendments also provide protections for employees against adverse employment actions. An example would be terminating the employee based on a pending arrest or criminal charge. Before doing so, employer must first evaluate the “relevant fair chance factors.” The relevant fair chance factors include: New York’s public policy of providing work for individuals with prior criminal offenses Considering the specific duties and responsibility of the job Whether the criminal offense or alleged criminal offense would affect the individual’s ability to perform the duties and responsibilities of the job How much time elapsed since the occurrence of the criminal act The age of the person at the time of the criminal offense occurred The seriousness of the offense Information as to the individual’s rehabilitation and good conduct The employer’s legitimate interest in protecting property and the safety and welfare of the specific individuals and general public Situations Where Employers Must Not Inquire About Prior Criminal History It is vital for employers to know they must never inquire about an employee’s criminal history regarding situations that involve the following: Non-convictions (including arrests that were not prosecuted, acquittals, dismissed charges, expunged cases and vacated convictions) Cases adjourned in contemplation of dismissal Youthful offender cases Violations (such as disorderly conduct) Non-criminal offenses (with the exception...

Anti-Retaliation for COVID-19 and OSHA’s Emergency Temporary Standard

Emergency Temporary Standard (ETS) Has Anti-Retaliation Measures Anti-Retaliation for COVID-19 is something employers should be aware of. The Emergency Temporary Standard (ETS) for OSHA regarding COVID-19 went into effect near the end of June 2021. The ETS only applied to the healthcare sector. The ETS established guidance that protected unvaccinated and at-risk workers. In addition, it encouraged vaccination. However, the ETS also contained important provisions for anti-retaliation. How Does Anti-Retaliation for COVID-19 Apply to Health Workers During the Pandemic? Many workers have worried about dismissal for exercising their rights during the pandemic. What rights are they concerned about? Disclosing a positive COVID-19 test Informing employers they have covid symptoms Having to quarantine after testing positive Notifying an employer about workplace conditions such as insufficient Personal Protective Equipment (PPE) or failures to clean or properly ventilate areas Employees have feared losing their jobs over the above. However, the ETS protects employees from retaliation for disclosing any of the above factors. Why Informing Employees about Anti-Retaliation Helps Employers If you have employees who hide the fact they tested positive, it puts other workers at risk. Also, employees should feel free to advise you about hazardous conditions so you can correct them. For example, if you did not know that another worker was refusing PPE or not wearing PPE correctly, then you could not correct the situation. Remedies Employees Have Under the Anti-Retaliation Provision As an employer, it is vital to realize that remedies exist regarding the ETS anti-retaliation provision: OSHA has up to six months from the date of the alleged retaliation to issue a citation Remedies may include back-pay and...