October 9, 2012
Previously published on October 3, 2012
Companies’ human resources (HR) directors don’t manage profit centers. Instead, they “guard the back door” - they prevent companies from incurring large expenditures that result from having to defend against (and pay for) employee claims. In addition to recruiting employees, providing for their orientation, helping to determine, implement and manage appropriate fringe benefits and insuring that performance evaluations are done correctly and on time, etc., HR directors frequently are relied upon to guide a company through the rocky shoals of compliance with a myriad of employment laws and common law (judge-made) rules. The following are just some of the major federal laws (among the many) that HR directors need to know about in order to help their employers comply: Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of race, color, religion, sex and national origin, and provides the basis for lawsuits alleging sexual harassment, pregnancy discrimination and failure to accommodate religious needs. With the EEOC’s recognition of new types of claims that are not expressly covered in the law, e.g., caregiver discrimination and gender identity discrimination, Title VII is a particularly fruitful area for employee claims. Section 1981 of the Civil Rights Act of 1866
Section 1981 of the Civil Rights Act of 1866 is a relic from the Civil War, which provides for race discrimination lawsuits to be filed without first having to file charges with the EEOC, and which allows for unlimited damages. The Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act (ADEA) protects all employees 40 years old and older, without any limitation as to age. This law makes taking any adverse employment action against an age-protected employee a challenge. The Equal Pay Act (EPA)
The Equal Pay Act (EPA) prevents differentiation between male and female employees who work in jobs involving equal skill, effort and responsibility, and who have similar working conditions. In conjunction with pay equity claims under Title VII (the statute of limitations for which was extended by the Lilly Ledbetter Fair Pay Act in 2009), the EPA requires employers to be particularly careful in setting pay scales. The Genetic Information Nondiscrimination Act of 2008 (GINA)
The Genetic Information Nondiscrimination Act of 2008 (GINA) prevents decision-making with respect to employees based on their genetic information and which also imposes significant obligations on employers with respect to information that may be obtained about employees and their relatives. The Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) provides for: (1) a leave of absence for the birth or adoption of a child, an employee’s own serious illness and caring for certain seriously ill family members; (2) maintenance of health insurance benefits on the same basis as before the leave; and (3) reinstatement following the leave. The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA), the most complex employment law in American history, prohibits discrimination against disabled individuals and requires implementation of affirmative steps to accommodate the needs of disabled employees and applicants. The National Labor Relations Act (NLRA)
The National Labor Relations Act (NLRA) is expanding to limit even non-union employers’ rights to prevent unhappy employees from bashing the company and fellow employees. The Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) among other things, establishes who is entitled to overtime pay and who is not. The Occupational Safety and Health Act (OSHA)
The Occupational Safety and Health Act (OSHA) establishes work place safety rules. State and county laws also add to areas of concern for HR directors, such as the Maryland fair employment practices law (which adds marital status and sexual orientation as protected categories for EEO purposes), the Montgomery County human rights law (which adds family responsibilities and gender identity as protected categories) and the Maryland Wage Payment and Collections Law (which establishes rules relating to payment of wages). On top of all of these are common law principles that provide grounds for employee lawsuits, such as wrongful discharge (a discharge in violation of “public policy,” including where an employee was performing an important public function or exercising a legal right or privilege), defamation (e.g., in a reference for a former employee), invasion of privacy and negligent hiring and retention. Effective HR directors often prevent these and other employment-based claims from getting to the point of formal filing by effectively and consistently educating employers on compliance and managing their workforce in an ethical and legal manner. It is a stressful job, so give your HR director a high five or a fist bump today!
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