:: Human Resources

GAWDA Human Resource Management and Compliance Manual Updated November 2006

Developed by the Human Resource Committee

Gases and Welding Distributors Association
100 North 20th Street, 4th Floor
Philadelphia, PA 19103-1443

Copyright 2001-3 All rights reserved

Updated in its entirety, November 2006

Instructions for Using the Online Human Resource Manual

1. The Online Human Resource Manual is an exact replica of the written version with the following exceptions:
    a. Most reference to page numbers and sections in the written version have been replaced with hyperlinks.
    b. The Sample Employee Handbook in the written version has been replaced with a modified online version authored by the same HR consultant. 
    c. Certain government regulation sections in the written version have been replaced by hyperlinks to the current online government version of the same material.

2. Most of the HR Forms were scanned as images in .pdf format. You will need Adobe Acrobat Reader software to view these images. For a free download, click here.

3. Searching - The HR Manual may be searched in two ways: 
   a. For a topical index, the Table of Contents (both text and Forms) is the same as the written version. Simply "click" on the appropriate topic.
    b. The HR Manual may be word searched by using your browser. First, open the HR Manual in whichever browser you are using. If Internet Explorer, click "Edit", then "Find". Key any word or set of words and click "Find Next". If Netscape, click "Search", then "Find on this page". Key any word or set of words and click "Find".

Note: The written HR Manual was scanned and edited to create the Online version. There may be spacing or other punctuation errors. If you notice any errors, please email gawda@gawda.org

    

INTRODUCTION

As an important service provided by GAWDA, the Human Resource Management and Compliance Manual has been prepared to assist companies in developing or better organizing their human resource function. For ease of user reference, each manual section has been identified separately. Where appropriate, useful forms and checklists are presented for application by the organization's human resources specialists and management personnel.

Individual segments of the manual will be revised or added to when necessary in order to present as practical and current of a resource as possible. Member companies of GAWDA are encouraged to utilize their Government Affairs/Human Resource Consultant as an additional source of information and counsel when human resource issues arise.

GAWDA recognizes the importance of maintaining a productive and motivated employee workforce. This begins with the creation of pro-active human resource programs and practices all within applicable regulatory compliance guidelines. The Human Resource Management and Compliance Manual has been developed to help meet this key business objective!

This information was revised by:
Richard P. Schweitzer, P.L.L.C.
1776 K Street, N.W.
Suite 800
Washington, D.C. 20006
202-223-3040
202-223-3-41 (fax)
rpschweitzer@rpslegal.com


ACKNOWLEDGEMENTS


The following sources and references were utilized in publications of the Human Resource Management and Compliance Manual:

1.The Society for Human Resource Management.

2.The Federal Wage and Hour Laws, R. Brian Dixon, SRM Foundation.

3.The Employers Legal Handbook, Fred S. Steingold, NoLo Press.

4.Administering the Company Personnel Function, William Marshall,
Prentice Hall, Inc.

5.Do-It-YourseIf Personnel Department, Mary F. Cook, Prentice Hall, Inc.

6.Federal Employment Law, Alexander Hamilton Institute, Inc.

7."Effective Discipline" , Chris Posti, GAWDA Human Resource Bulletin
contributing editor.

8.G. Neil Human Resource Forms Publishing Company, Sunrise, FL. 33325.

9.Employee Section -A Legal Perspective, Loren K. Allison, Esp., SHRM
Foundation.

10.How To Stay Union Free, Gordon E. Jackson, Management Press, Inc.


DISCLAIMER

This Manual contains information designed to assist welding supply distributors in complying with federal regulations that affect their business. This Manual does not constitute legal advice. Users are advised to obtain competent legal counsel in developing their own regulatory compliance programs or when employment issues develop which may require a legal opinion. In addition, the regulations referenced herein are subject to change from time to time. The Gases and Welding Distributors Association or Human Resource Consultant do not guarantee the accuracy of the regulatory language in this Manual. GAWDA will provide updates to this Manual as appropriate.


TABLE OF CONTENTS

I. Recruitment and Selection

.Determining Accurate Job Specifications        
.Effective Recruiting Sources                        
.Recruitment Advertising                            
.Employment Application Form                    
.Job Posting                                               
.Conducting Effective Job Interviews
.Employment Testing
.New Employee Orientation
.Job Applicant Letters
.Employee Reference Checks                                                                  

II. Record Keeping and Administration

.Personnel File Maintenance
.Employee Payroll/Status Changes
.Calculating Employee Absenteeism And Turnover Rates
.Human Resource Information Systems

III. Regulatory Compliance

.Summary of Main Federal Human Resource Statutes
.Fair Labor Standards Act
.Federal and State Labor Law Posting Requirements
.Immigration Reform and Control Act of 1986
.Family and Medical Leave Act
.Consolidated Omnibus Budget Reconciliation Act (COBRA)
.Americans with Disabilities Act
.Affirmative Action Plans
.Annual EEO-1 Reporting Form
.Tips For Effectively Handling And Responding To A Charge Of Discrimination
.Child Labor Law Guidelines
.Health Insurance Portability And Accountability
Act of 1996 (HIPAA)

Appendix: 1. Handy Reference Guide To The Fair Labor Standards Act
            2. Affirmative Action Programs
            3. Sample EEO-l Reporting Form


IV. Human Resource Policies

.Reasons For Developing Human Resource Policies
.Areas to Include in a Policy Manual
.Sample Policy Format
.Maintaining a Policy Manual
.Communicating New or Revised Policies


V. Compensation Management

.Determining Pay Program Objectives
.Job Descriptions
.Communicating Pay Policies 
.Exempt vs. Non-exempt Job Classification
.Performance Appraisal
.Compensation Program Audit


VI. Employee Relations

.Effective Discipline
.Termination of Employees
.Documenting Personnel Actions
.Employee Problem Solving Procedure
.Sexual Harassment
.Exit Interviews
.Employee Assistance Programs
.Communicating With Employees
.Employee Handbook
.Human Resource Audit Checklist

VII. Remaining Union Free

.Situations Which Prompt Unions to Organize
.Eleven Reasons Why Employees Resort to Unionization
.Disadvantages of Unionization to Employees
.Selecting New Employees
.The Management Team
.Policies, Rules and Regulations
.Elimination of Unsatisfactory Employees
.Equitable Wages and Employee Benefits
.Elimination of Employee Irritants
.Communications in the Union Free Company
.Components of the National Labor Relations Act
.Supervisor Guidelines When Union Organizing Occurs

VIII. Employee Benefits

.Achieving an Effective Employee Benefits Program
.Benefits and Discrimination Considerations
.Types of Benefits Plans
.Flexible Benefits
.Benefit Surveys
.Calculating Benefits Costs
.Employee Benefits Statement
.Employee Benefit Plan Records
.Trends in New Benefits Programs
.Managing Benefits Programs



HUMAN RESOURCE FORMS AND CHECKLISTS

 



RECRUITMENT AND SELECTION



DETERMINING ACCURATE JOB SPECIFICATIONS

Before attempting to recruit external or internal applicants for approved job openings, the hiring manager and human resource specialist must have a clear picture of the job opening's requirements. To meet government regulatory guidelines, established position specifications must be job related.

In determining job specification categories, the following areas should be considered in relation to the job opening:

1. Level of Education
How much education is really necessary? Will high school be sufficient or is college courses, degree, etc. completion essential? What additional specialized training is preferred or required?

2. Previous Work Experience
What type and how much prior job experience should qualified applicants possess?

3. Specialized Skills
The interviewer should be aware, ahead of time, of any technical skills which are needed in order to satisfactorily complete the job. These would include the following:

4. Essential Personality Factors
Certain jobs require specific attributes which help ensure job success. Obviously, a person hired to a sales, customer service, or receptionist capacity should possess more of an outgoing
personality considering those individuals with whom this person will relate. One must be careful however that screening for special personality features remains job related. Many larger organizations have found it beneficial to complete a job requisition form prior to actual candidate recruiting. This document spells out the requirements of the job opening, as well as needed prior experience and training. Also, it helps maintain control over the recruiting process by allowing for the appropriate approval signatures. A sample Job Requisition Form is included for reader use.

EFFECTIVE RECRUITING SOURCES

The following is a list of potential sources from which to attract job applicants. This list is not all-inclusive and the reader no doubt can think of additions to what is presented here.

1. Newspaper advertisements
2. Public Employment Service
3. Unsolicited "walk-in" applicants
4. Advertising in trade, professional or business journals
5. High schools; trade and technical schools
6. Recommendations and referrals
7. Job fairs
8. Private employment services firms
9. College recruiting
10. Minority and community organizations

In the recruiting process, managers and human resources professionals must ensure objective and non-discriminatory methods are used in hiring new employees. Thus, it is usually beneficial (and safest), if when recruiting, companies utilize more than one of the applicant sources listed above.


RECRUITMENT ADVERTISING

An often used method for attracting qualified job applicants is newspaper advertising. To a lesser extent, companies may also advertise by means of periodicals, trade journals, radio or television. Employment advertising no matter how done, however, must follow certain guidelines regarding content accuracy, legal compliance and portraying the correct image as a desirable employer.

Improper wording in an ad can be used as evidence of discrimination against applicants of a particular gender, age or marital status. This includes the following examples: use of the words "Salesman", "young", "recent college graduate", "handyman", or "gal Friday" could all add to potential problems when stated in an ad. Requiring a high school or college degree may be discriminatory in some job categories. Saying "degree or equivalent experience" would greatly lessen any risk of litigation occurrences. Employment ads placed by federal contractors must include an Equal Opportunity Employer phrase. Basically, this assures that all applicants will receive consideration for employment without regard to race, color, age, religion, sex, disability or national origin.


Sample Employment Ads

To assist the reader in developing their own advertising, several sample employment ads are presented.

1. Clerical

Human Resources Assistant 

This part time position (20-34 flexible hours per week) is responsible for all areas of HR administration including word processing, filing, employee benefits and employee involvement. Will also maintain HRIS system. Must be highly organized with excellent organizational & communication skills. Must be MAC proficient; HR experience & knowledge of Ceridian/ Ensemble system a plus. Please forward resume and salary requirements to: 

Name, Title
Company
Address
City, State


2. Management (Blind Ad)

Director of Sales and Marketing

XYZ Welding Supply Company is a leading and well-established area distributor of industrial, medical and specialty gases, as well as welding equipment and industrial supplies. Continued company expansion has afforded an exciting career opportunity for an experienced sales and marketing professional looking to help a progressive organization achieve its growth objectives. Reporting to the President, the selected candidate will have complete responsibility for development and implementation of marketing plans, strategies, promotions and product advertising. The incumbent will also provide leadership to Sales Department activities including forecasting, territory management and overall managing of the company sales force. An appropriate educational degree is required along with a minimum of 10 years of all encompassing sales and marketing management experience. An excellent salary and benefits program are offered the selected applicant. Send resume including salary requirements to:

Box B-66
(Newspaper Name)
City , State, Zip Code
"An Equal Opportunity Employer"



3. Professional (Blind Ad)

General Accountant

Energetic and experienced accounting professional is needed for a growing local industrial products and services distributor. Accounting degree preferred along with a minimum of five years financial reporting, general ledger and accounts receivable experience. Ability to work under minimum supervision and meet critical time deadlines is also required. This opportunity affords the selected individual a competitive salary and numerous benefits programs including profit sharing and 401-K participation. Send resume including salary requirements in confidence to:

Box M-13
(Newspaper Name)
City, State, Zip Code



4. Hourly Worker


Delivery Driver

Area industrial gases and welding supplies distributor has an immediate need for a CDL certified (class A) truck driver. The successful candidate will make daily deliveries to customer accounts and resolve routine customer complaints. An excellent driving record is required along with effective communications skills. The incumbent must also exhibit good time management and organization capabilities. Excellent work environment is offered along with competitive wages and benefits package. Send resume in confidence to: (No phone calls please)

Company Name
Attn: Warehouse Manager
Address
City, State, Zip Code
"Equal Opportunity Employer"


The above employment advertisements are typical of the kind companies would use to attract a sufficient flow of qualified candidates. Each ad spells out the principal job duties and required qualifications. Note that example ads number 2 and 3 are what is termed a "blind ad." For various reasons the hiring company desires not to be identified. Rather, applicants are advised to submit their resume to a box number. While blind ads will cut back on time consuming phone calls made by job applicants to the hiring company, there is a downside as well. The kind of qualified candidates the company is looking to attract may hesitate on sending their resumes to an "unknown" location. In some instances individuals may fear that the blind ad is from the company where they are currently employed!

Overall, advertising is a main method used to solicit outside interest for a job opening and the prospective company. When done well it can be a very cost effective way to meet manpower requirement needs.

EMPLOYMENT APPLICATION FORM

When preparing an employment application form for company use, there are many practical and legal guidelines to consider. The most important of these guidelines is the following:

Request information that is job related and that can be used to make an employment decision. Do not ask about anything else.

Most application forms are divided into the following sections:

1. Biographical/ personal
2. Education
3. Work experience
4. References
5. Disclaimers

Special Points To Remember

1. Questions about age can lead to discrimination complaints under the Age Discrimination in Employment Act. DON'T ASK: How old are you or date of birth?

2. Discrimination complaints under the Americans with Disabilities Act may result from the following: DON'T ASK: Do you have any health related problems/ disabilities that may limit your ability to perform this job? Also, do not inquire about previous worker compensation claims filed.

3. The Immigration Reform and Control Act and Title VII prohibit discrimination based on national origin and race. DON'T ASK: Are you a U.S. Citizen? What language do you most commonly speak? Or request a recent photograph.

4. Requesting arrest records has been shown to have a potentially adverse impact on some minority groups. DON'T ASK: About any arrests. If asking about convictions state that a conviction will not be an absolute bar to employment.

5. Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act is part of Title VII. DON'T ASK: Are you pregnant? Or do you have any children?

6. In terms of education, requesting dates of school attendance could reveal an applicant's age. It is preferable to ask applicants how many years attended?

7. Contacting previous work references is a big part of the hiring process. While covered more in-depth in another section of this manual, make sure the applicant signs an authorization prior to verifying credentials and checking references. Normally, this authorization section is located
near the end of the employment application.

8. Disclaimers should be as direct as possible. Make sure that you are consistent with existing policies and practices. The statement(s) should address such items as drug testing, employment at will or other conditions of employment.

 

SAMPLE APPLICATION FORMS

Each may be adopted to individual company needs. Revised or newly created application forms should be reviewed by legal counselor the GAWDA Human Resource Consultant prior to being given to job applicants.

JOB POSTING

Job posting is a method of communicating to employees jobs which are open in the company. The purpose is to fill as many jobs as possible from within the company as a means of rewarding and recognizing high performing employees. Companies that promote from within also find it easier to attract and retain ambitious, career oriented employees.

Job posting requires that a brief description of the available position, including significant job duties and education/ experience requirements, be posted where all employees will see it. Most often this would be in a well visited bulletin board area. A specific cutoff date for employees to apply is usually stated on the job posting.

Job posting can be a time consuming procedure since many workers could apply for the same job. It is recommended that everyone who applies for a posted position be interviewed. In this way everyone is treated consistently and at the very least has the opportunity to discuss career advancement with company management.

During the interview, the duties of the job opening are explained and the requirements outlined. The applicants training and experience are reviewed as well as the employee's personal interest in applying for the job opening. When the final selection is made, the decision must be reported individually to each remaining candidate. This communication is made in such a way as to get their understanding and also to encourage interest and re-application for future posted job openings.

A job posting program, if administered fairly, can help to minimize employee complaints of unfair treatment, unlawful discrimination, and favoritism which often arise when companies hand-pick candidates for promotion without posting the job openings.

For reader interest, a typical job posting format is shown next, outlining requirements and related information pertaining to the position opening.

XYZ COMPANY

NOTICE OF JOB OPENING

Job Title: Payroll Specialist                    Reports To: Accounting Manager
Department: Accounting                      J ob Grade: 8

Main Job Duties:

The incumbent will collect employee timecards, process work hours and ensure correct earnings calculations. Prepare necessary payroll reports and resolve employee payroll problems.

Education/ Experience Requirements:

High School graduate -business course emphasis preferred.

2-4 years prior bookkeeping, accounting or related experience. Prior exposure to personal computer applications required.

Qualified candidates must have an ability to meet job deadlines and work effectively with all levels of employees.

Final Date To Apply For This 0pening: 6/1/00

Interested employees must contact the Human Resource Administrator by the above date indicating their interest in the posted job opening.



CONDUCTING EFFECTIVE JOB INTERVIEWS


The objective of the job interview is to find out as much as possible about the applicants to enable the hiring manager to select one for an offer of employment. The successful interview consists of asking questions designed to elicit specific information and paying attention to the responses. Effective interviewing is based on one critical factor: listening. In the interview there are three areas of interest:

1. Find out as much as possible about the candidates total background, education, experience and personality.
2. Consider to what extent each candidate possess or lacks the necessary characteristics, skills and abilities.
3. Based on objective criteria, conclude how the candidate will l' perform in the company's work environment.

To improve listening ability, there exists further points to keep in mind:

To facilitate drawing information out of the candidate, the interviewer needs to make the candidate feel comfortable. This can be done by beginning with some small talk about a current event, the weather or a reference to something in the applicant's background that is relatively interesting or uncontroversial. This allows the applicant the opportunity to begin with something that he or she is familiar wit and shows that the interviewer is interested in him or her personally.

Although it is advisable to have the application or resume available during the interview, notations should not be made on them. Note necessary comments on a separate sheet of paper.

To facilitate eliciting information, ask open-ended questions, that is questions that cannot be answered yes or no. These questions begin with "what," "why," and "how". Open-ended questions are often hypothetical that is, "what would you do if ..."

Normally, an interviewer should spend 20-30 minutes immediately before the interview reviewing the candidates resume, employment application, the job requirements and list of potential questions to ask.

Overview - Interview Process

I. Understand Job Requirements

 A) Job Description

 If a job description exists, compare the candidate's background to the position requirements.

 B) Candidate Profile

Consider factors relative to personality and individualized traits which will  help the individual succeed in your environment.

* Team Player
* Energetic
* Hands -On
* Outgoing/Sociable		* Self -Starter
* Honesty /Integrity
* Oral Communications
* Listening Skills


II. Job Interview (Normally conducted in the following manner).

A) Introduction (2- 3 minutes)
    This is the social part of the interview designed to make the candidate feel at ease.

B) Questions to Candidate (see next page, 30- 40 minutes)
    (80/20 rule: candidate spends 80% of time answering questions)

C) Provide Information Regarding Company (10- 15 minutes)
    Be prepared to give an overview of the Company's operation including current and future    business needs.

D) Solicit Questions from Candidate


III. Additional Interviewing Recommendations

A) The Interview Must be Guided by the Interviewer:
    1. Interviewee encouraged to speak freely
    2. Interviewer encourages conversation by asking open-ended questions:
        "How do you feel about that?"
        "How did that affect you?"
        "How did you accomplish that?
        "What did you like about your last job?"
        "What are your strengths?"
        "What is your most important achievement?"

B) Review Previous Experience

C) Inquire about Information Missing on Resume or Application (gaps in employment, etc.)

D) Cannot Ask: Age, Marital Status, Religious Belief, Disability Status, etc.


IV. Sample Interview Questions

1.) Why are you considering a different job opportunity?
2.) What do you believe are the qualities necessary to be an effective (Job Title)?
3.) Describe your most rewarding accomplishment?
4.) How would employees in your organization describe you?
5.) What would your most recent supervisor say are your strengths?
6.) What would your most recent supervisor say are your weaknesses?
7.) Tell me about the success you have had in developing and/ or implementing (Operations Manager applicant):
        * Production scheduling
        * Manager/supervisor development
        * Improving workforce morale
        * Cost reduction programs
        * Processes which improved on-time deliveries

8.)Tell me of a time you satisfactorily resolved a problem with a customer.
9.) Give an example of how you try to motivate employees to accomplish department goals.
10.) Were there any Company policies at your last job with which you disagreed or had difficulty following?
11.) Describe how you would increase sales if hired as an outside sales representative.
12. ) What are your career goals?
13.) What are pay or salary requirements?
14.) What are the questions you have of me as the interviewer?

V. Interview Concerns:

A) "Halo Effect" (letting one factor affect your entire opinion of the candidate)

B) Unsupported Hunches Must Be Avoided

C) Ask Same Questions of ALL Candidates

D) Take Notes

E) Evaluate Applicant Qualifications Immediately After The Interview


DO'S AND DON'TS OF INTERVIEWING

Do: 
1. Use a quiet, comfortable place.
2. Put the interviewee at ease.
3. Show interest in the person as well as the job.
4. Outline clearly the requirements of the job.
5. Ensure understanding of the applicant's previous work experience.
6. Encourage the applicant to ask questions.
7. Guide the interview.
8. Listen; let the applicant talk freely.
9. Be natural; use a conversational tone.
10. Know when and how to close the interview.
11. Explain your next step and possible timing of a hiring decision.

Don't:
1. Keep the applicant needlessly waiting.
2. Not know what to look for during the interview.
3. Build false hopes or oversell the job.
4. Rush through the interview.
5. Ask questions of a non job-related or potentially illegal nature.
6. Prejudge the applicant.
7. Allow one undesirable factor to influence interviewer's judgment.
8. Never get back to the applicant regarding the hiring decision.

Documenting Interview Meeting

It is obviously difficult to simply remember applicant(s) responses and other important information gathered during the interview. Having access to documented interview discussions can help ensure the correct selection decision is made especially when several individuals are being considered.

As a means of documenting interviewing comments, impressions and overall candidate qualifications, two versions of an Applicant Appraisal Form are shown. These forms may be particularly useful when multiple individuals interview a job applicant. When completed, a selection decision can be made based on objective, factual, and well documented information concerning each candidate.



Illegal Interviewing Questions

An interviewer must keep job relatedness in mind as he/she is screening a job applicant. Accordingly, do not ask any questions that are Not Job Related. These include the following:

1. Marital status, child rearing plans, number of children or child care problems.
2. Age, Date of Birth
3. Education as related to age
4. Height, weight, strength, disabilities
5. National origin/race.
6. Friends or relatives within the organization.
7. Arrest records. You may ask about convictions, but convictions should be the basis for rejection only if their number or nature render the applicant unsuitable.
8. Citizenship.
9. Whether the applicant has ever filed a claim for workers compensation.
10. Name of spouse or spouses place of employment.
11. Questions regarding home or auto ownership, bankruptcy, credit ratings, or past garnishment of wages. Such questioning may tend to have an unequal impact on minorities.
12. Questions about religion or beliefs.
13. Questions regarding type of military discharge.
14. Employers must avoid asking for photographs until after hiring.
15. Clubs or organizations unless job related.
16. Union affiliation or organizing interest.

The above factors have nothing to do with how an applicant will do on the job. Also, much of this information is necessary for personnel records and may be obtained after the person is hired. The interviewer should concentrate on the qualifications, past job performance and potential ability to meet the job opening's requirements.



Job Interviews and ADA

Although covered more in-depth in another section of this Manual, the Americans with Disabilities Act greatly impacts the hiring process, Basically, the Americans with Disabilities Act (ADA) forbids discriminating against a job applicant or employee, with a disability , when he/ she is capable of performing a job's essential functions with or without reasonable accommodation. This law significantly affects what can be asked during the job interview.

The Equal Employment Opportunity Commission (EEOC) sets out examples of questions employers may not ask on application forms or in job interviews as prohibited by the Americans with Disabilities Act (ADA). These include:

Questions which may be asked under ADA:

Providing clear job descriptions that outline the essential functions of a job and break down the job into its physical requirements, psychological demands and working conditions will enable applicants to know what is required in order to request any accommodation, if necessary.

Employment Checklist - Hiring Persons With Disabilities

DO

DON'T


EMPLOYMENT TESTING

A test has been defined as a standard device used to measure skills, intellect, personality and other characteristics. Most small businesses operate on a slim profit margin and need to know that employees will be up to speed from day one. When hiring a typist, one may want to test the applicant for typing speed and accuracy. If hiring a driver to operate a commercial motor vehicle, a road test is required by the Federal Motor Carrier Safety Regulations. In addition, testing is required for all new hazardous materials employees as defined by 49 C.F.R. §171.8. As long as the skills tested for are related to the job duties, or the test is required by federal regulation, a skills test is generally legal. To insure the job relatedness, a job analysis should be conducted before any test is selected, designed and administered.

If it is decided to use aptitude or personality tests, companies must proceed cautiously: Make sure that the tests have been screened scientifically for validity and that they are correlated to job performance. Review them carefully for any questions which may intrude into an individual's privacy.

Be aware too that the American with Disabilities Act (ADA) sets special requirements when testing people who have impaired sensory, speaking or manual skills. Sensory skills include the abilities to hear and to see and to process information. If the individual being tested would not have to use the impaired skill, on the job, the test must be designed so that he or she doesn't have to use the impaired skill to take the tests.

Lie detector or polygraph tests, rarely used by small businesses anyhow, are virtually outlawed by the Federal Employee Polygraph Protection Act. With just a few exceptions, one cannot require job applicants to take lie detector tests. Use of a lie detector test could be allowed when an employee was reasonably suspected of being involved in a workplace theft or embezzlement.

Medical Testing

To avoid violations of the Americans with Disabilities Act (ADA), interviewers must not ask the applicant about his or her medical history or schedule any medical exam before making a job offer. One can, however, offer a job conditioned on the applicant passing a medical exam. Companies which do require a post job offer exam must make sure it requires such exams for all entering employees who are doing the same job. If medical exams are given only to people with known disabilities, or those who it believes may have a disability, the company violates the ADA. If a job offer is withdrawn based on the results of an exam or inquiry it must be shown that:

Before making a job offer, the ADA forbids an employer from requiring an applicant to take a medical examination, respond to medical inquiries or provide information about workers' compensation claims. A pre-employment drug screening is not considered a medical exam under the ADA; nevertheless, it is better for an employer to require a drug screen only after making a conditional offer of employment

After making a conditional offer of employment, an employer may conduct a medical examination and make unrestricted inquiries of all potential employees in a job category, but may not refuse to hire an individual with a disability based on the results of such inquiries, unless the individual cannot perform the essential functions of the job with reasonable accommodation. The medical exam to qualify a commercial motor vehicle driver (required in 49 CFR Part 391) may be given at this time.

During employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity.

Because an employer may not conduct a medical examination unless it is administered to all applicants in a given job category, an employer may not require an individual applicant to take a medical exam based on a response to a preliminary post-offer medical question (e.g., for disclosure of a previous on-the-job injury), unless all applicants in the same category are required to take the same test.

Employee medical examinations may be conducted where there is evidence of a job performance or safety-related problem, where federal laws may require such examination (such as for truck drivers), where current fitness for a position must be determined (including persons returning from workers' compensation leave), where it is necessary to identify an effective reasonable accommodation, or where there exists a voluntary employee health program.

Workers injured on the job may be given a "job-related" medical examination, but not a full physical exam. Injured employees returning to work after a leave may only be required to have a "job-related" medical exam, not a full physical exam.

Finally, an employer may make pre-employment, pre-offer inquiries regarding the illegal use of drugs, and may administer a pre-employment drug and alcohol test (a pre-employment drug test is required by DOT regulations for all applicants for commercial motor vehicle driver positions). Obviously, an employer may deny employment to an applicant who fails a pre-employment drug or alcohol test.

NEW EMPLOYEE ORIENTATION

In the training of new employees, the process known as orientation is an organized effort on the part of the company to get the currently hired individual positively indoctrinated to the Company, their job and co-workers. It is an attempt to have the new worker learn quickly and accurately what he/ she would otherwise pick up over a longer period of time, and perhaps incorrectly.

Orientation programs instruct employees on company history, philosophies, mission, expectations, job requirements, personnel policies and benefits. An orientation program gives the company an excellent opportunity to show how much it depends upon its workers. Employees are made to feel that they belong and are important; otherwise they would have not been hired.

In order to be effective, orientation programs should involve someone knowledgeable about company personnel policy, pay practices and benefits programs. In addition, the new employee's supervisor should play a key role in the orientation process. The supervisor insures that the new employee is familiar with the department layout, provides introductions to fellow workers, and reviews job expectations, safety guidelines and specific department policies. It is often useful that during the first few weeks of a new hires employment, he/ she be assigned to a fellow employee who would act in a mentoring type capacity. Normally, this would be someone exhibiting positive work habits and attitude toward the company.

In bringing the orientation process to a successful close, the supervisor should schedule a meeting with the new employee 2 -3 weeks following initial employment. Discussion here would center on the new employees initial impressions about the job and company. Also, this is a time to answer any pertinent questions posed by the individual. It would be good if someone involved in the human resource function also completed a follow-up meeting with the employee. On occasion, an issue may occur involving the supervisor. Thus, it is important that the new employee (or any employee) have access to another company representative when problem areas develop.

As a guide for company use, presented is a sample employee orientation policy and checklist. Note both human resource related and supervisory responsibilities.


Sample Orientation Policy


It is the policy of (Company) to provide each new employee with a thorough orientation to the company including its operating philosophies, policies, procedures, compensation practices, and benefits programs.

Numerous company personnel playa key role in the successful implementation of this policy. The Human Resource Department and the new employee's immediate supervisor will be primarily responsible for completion of the orientation program procedures.


A. Program Coordination

1. The Human Resource Department will be responsible for organizing all orientation procedures following the establishing of the employees hire date. This includes coordination with the pertinent supervisor and other individuals involved in the orientation process (Safety and Environmental Manager, Switchboard Operator when applicable, etc.), scheduling of any needed meeting room and preparation of orientation materials.

2. The Human Resource Administrator will ensure that the appropriate orientation follow-up meetings occur with the new employee(s).

3. The new employee Orientation Checklist will be completed for each new hire, properly signed and remain a part of the employee personnel file.

4. The Human Resource Administrator and applicable supervisor will develop, coordinate and ensure successful completion of any specialized training required during the employee's initial weeks of employment.


B. Orientation Program Schedule

1.The orientation process will begin with the Human Resource Department completion of items as listed on the Orientation Checklist. This will occur on the new hires first day.

2. The new employee's supervisor will complete his/her portion of the orientation program. In the absence of the employee's supervisor, a substitute individual will be appointed to complete major portions of the orientation requirements.

3. The President and General Manager will, on a monthly basis, meet and welcome new employees to (Company). The Human Resource Administrator will coordinate the scheduling of this meeting.

Motivating the New Employee

Research has proven beyond a shadow of a doubt that the impressions new employees form during the first few days on the job have a tremendous impact on their performance throughout their tenure with the company. Some managers regard orienting new employees as the responsibility of human resources or the Office Manager. A disinterested reception by the supervisor, however, can undo all the good feelings that such a program has tried to establish.

Here are some suggestions for what supervisors can do to relieve new employee anxieties and shorten the adjustment period:

1. Explain the authority structure.

New employees want to know where they stand and how they fit into the organization as a whole. So take the newcomer aside and briefly sketch out how the department is set up, who reports to whom, and so on. Point out the individual to whom the new employee can speak if the supervisor is not there.

2. Describe performance expectations.

New employees rarely have a clear picture of exactly what is expected of them. Therefore, quality and productivity standards should be stressed early on. The same holds true for other job related standards, such as safety and absenteeism rules.

3. Ensure employee training for the job.

It can be very frustrating when one is left alone to "figure the job out for themselves." For the new hire, this can be a primary reason for quitting after just a week or "two on the job. Often, it helps to assign a fellow employee the role of working with the new person to assure their understanding of how to do the job. In addition to technical ability , however, make sure the employee doing the training is an effective communicator.

4. Provide periodic feedback.

Many new employees receive little or no feedback on their performance when they need it most - in the beginning! Remember, most new hires and employees in general, would prefer to know whether they are progressing satisfactorily or doing something wrong. Be sure to document critical incidents which contribute to satisfactory or unsatisfactory job performance.


JOB APPLICANT LETTERS

Below, sample letters are presented which are often used in the selection process. It is both a professional and personal courtesy that applicants be notified once a hiring decision is made. Format these sample letters to your own business setting and communications style.

JOB OFFER LETTER TO APPLICANT

Name
Address
City, State

Dear Mr./Ms. (_______________):

We take great pleasure in confirming an employment offer to you as Buyer in our Purchasing Department. In your new position you will report to John Jones, Purchasing Manager. Your starting date of employment will be Monday, May 16th.

Your annual compensation will be $30,000; paid bi-weekly this is $1,153.85. Enclosed are booklets which completely describe our many group insurance programs. Eligibility for coverage will occur on August 1lst. In addition, you will be eligible for two (2) weeks vacation following one year of employment. The enclosed schedule describes additional vacation eligibility based on length of employment service.

In accordance with company policy, this job offer is contingent upon your successfully passing a medical examination and test for illegal drugs. Please contact my office to set a convenient time for this examination to occur. Note that this employment offer is not to be construed as a contract. Also, employment with XYZ Company is not guaranteed for any specified time period.

We are delighted that you have verbally accepted our employment offer and look forward to seeing you on May 16th.

If you have any questions please feel free to contact me at anytime.

Sincerely,


Bill Glass
Administration Manager

SAMPLE APPLICANT LETTER

(When No Job Offer Is Made)


Name
Address
City , State

Dear Mr./Mrs.(_________________):

Thank you for your recent interest regarding our position opening for Shipping Supervisor. Although we are impressed with your abilities and background, we have selected someone whose experience more closely matches the position opening's requirements. Your resume will be retained for one year and you may be contacted if a related position becomes available.

Your interest in XYZ Company is very much appreciated and best of luck in your future career endeavors.

Sincerely,


Jane Smith
Human Resource Coordinator



Note: The above letter format may be used with unsuccessful applicants
responding to ads or interviewed and not receiving a job offer.

EMPLOYMENT REFERENCE CHECKS

Before making a selection decision, the hiring manager should know as much as possible about the job candidate. Past work references, if kept job related and done properly can provide valuable information regarding the applicant's suitability for employment.

Since many companies today are reluctant about giving out work references, it is best to have applicants sign releases. These authorize former employers to provide information which will be considered before making a decision to hire. In some organizations, this authorization release is printed on the employment application 

Two sample reference request forms are presented: one when contacting past employers by telephone and one by mail.

A vital question to ask in gathering reference information is "Would you rehire this person?" The response could help finalize the decision to hire or not to hire. Also, it is normally a good idea to ask about the applicant's specific strengths and weaknesses. These provide further insights into the individual's capabilities and potential fit with the organization.

If checking references lead to doubt or create more questions about the applicant, ask for still more references or schedule a more probing interview. Of course, another option is to simply move onto another candidate.

Keys In Obtaining Work References:

Review the following:

Refer to the sample reference check forms for use when conducting telephone or mail-in types of reference verification.


Possible Reference Check Questions


Handling Post -Employment Inquiries

Contrary to current opinion, the law does not require company representatives to completely clam up about a former employee when a prospective new employer calls. If some basic guidelines are followed, a significant amount of information can be disclosed without risking a lawsuit.


Key Guidelines

1. The key to protecting yourself is to stick to the facts and act in good faith. It is when you go beyond the facts or are motivated by a desire to harm the former employee or evade the truth that you can find yourself in deep trouble.

2. A practical approach is simply not to discuss an ex-employee with prospective employers if you can't say something positive. When an employee's record is mixed, it is usually possible to accent the positive while trying to put negative information into a half-way favorable, or at least less negative, perspective. One should not lie to a prospective employer, however, especially if the employee was terminated for some willful act of misconduct. Just be sure previous incidents are well documented and that the personnel file reflects fairness, objectivity and good faith.

3. It also pays to watch what is said in informal settings such as trade shows or with vendors and customers. If a customer wants to know what happened to the ex-employee and you reply in a vindictive way, word will likely spread. This could lead to legal complications if the employee became ostracized in the field or town because of your negative comments. Disclose the reason for firing on a strictly need to know basis and do not say anymore than is necessary.

4. In a trend designed to encourage fuller disclosure in responding to reference checks, some states have begun passing laws allowing companies to be more candid about former employees. These laws expand on the common law principles that protect companies if they act in good faith.

5. Before giving a work reference, request that the prospective employer submit a waiver signed by the ex-employee. Basically the wording would say:

"I authorize and request my former employers, references and educational institutions which have information regarding my suitability for employment to give ______________________ such information which (Company Name) may lawfully be disclosed. I release former employers, references and educational institutions from any liability or claim relating to such release of information."

____________________
Applicant Signature

____________________
Date

6. Companies may still want to take the conservative approach and confirm only prior employment dates and job title. Just be mindful that many organization's cooperation to your request will be based on your cooperation to their similar need for information.

 

Note: Employment References for Commercial Motor Vehicle Drivers

The Federal Motor Carrier Safety Administration has issued a Supplemental Notice of Proposed Rulemaking (SNPRM) on the minimum safety performance history new or prospective employers would be required to seek from CMV drivers and from where the information should be obtained. 68 Federal Register 42339 (July 17, 2003).

The Hazardous Materials Transportation Authorization Act of 1994 directed DOT to issue a rule specifying the minimum safety performance information to be investigated from previous employers when performing employment record investigations on driver candidates and newly hired drivers. The FMCSA's predecessor agency, the Federal Highway Administration, issued a Notice of Proposed Rulemaking (NPRM) on this issue on March 14, 1996 (61 Federal Register 10548) but never published a final rule. This latest SNPRM modifies the proposals contained in the 1996 NPRM.

The SNPRM would make the following changes to the Federal Motor Carrier Safety Regulations with regard to CMV drivers:

These changes are not yet final, but GAWDA will amend this Human Resources Manual to include these changes when they become final.





RECORDKEEPING AND ADMINISTRATION

 

PERSONNEL FILE MAINTENANCE

Employee files can be an important source of information to support actions such as disciplinary warnings, suspensions or terminations. On the other hand, considering that many states have laws concerning employee access to their personnel file, it is important that care be exerted on what goes into them.


Typical Documents to Include in Employee Files

1. Job application/resume.
2. Offer letter of employment
3. Personnel data form (reflecting pay rate, name change, job transfer, change of work status, etc.)
4. IRS W-4 Form.
5. Benefits enrollment forms.
6. Performance evaluation form.
7. Leave of absence forms.
8. Receipt of employee handbook.
9. Disciplinary action notices.
10. Notes on employee attendance and tardiness.
11. Separation notice and termination information.

Note: There should be no medical information retained in the personnel file. This would include post-job offer medical examination results and on-going, communications with physicians, labs, etc. A separate medical file must be created for privacy reasons. The medical file should be available only to the assigned human resource employee or management representative with a valid need to know. The Americans with Disabilities Act (ADA) allows very limited disclosure of medical information. For example, supervisors may be informed about necessary restrictions on an employee's duties and about necessary accommodations.

Keep all employee files locked. Again, make them available only to people in the company who have a legitimate business need to have access to the files-managers, for example, who must make decisions about promotions and discipline. Inform company personnel that the information in the files must remain confidential. While state law may dictate that an employee or former employee has a right to see his or her file make such access within well defined guidelines.

Employers should maintain personnel file records permanently. Any document regarding an employees work record, disciplinary warnings, performance evaluations, etc. should remain in the employee file. Many times these records will be used as evidence to justify an employee termination or further support the employer side in some legal matter.


Employee Access to Files

Most companies allow and in some states are mandated by law to allow employees, upon request, to review contents of their personnel file. This review time can be scheduled at the convenience of the company but should not be needlessly delayed. It may be designated that a human resource individual or supervisor be present to make sure nothing is taken, added or changed. Some state laws allow employees to obtain copies of items in their files. Employees should have copies made for them; they should not be allowed to make their own copies.

Usually you do not have to let the employee see sensitive items such as information assembled for a criminal investigation, reference letters, job interview notes, and information that might violate the privacy of other people. In a few states, employees may insert rebuttals regarding information in their personnel files with which they disagree. Other companies allow this even when not mandated by law to do so.

Basically, controlling what goes into the personnel file and who has access to them should eliminate the vast majority of potential problem areas. Employee requests to review their files will normally be few in number during the course of the year. Being pro-active, honest and open with employees, all within the guidelines presented here, will communicate the fact the company has nothing to hide regarding employee related documentation. Failure to heed this advice, however, could leave an employer open to lawsuits for invasion of privacy by an employee whose file was viewed by personnel without any need to have access to that information.

Additional Considerations


EMPLOYEE PAYROLL/STATUS CHANGES

There exists a number of reasons why documenting employee payroll, job transfer and employment status changes is so important in the maintaining of accurate employee records. These include compliance with various federal statues regarding employer record keeping, and the potential need for such documentation in employment litigation proceedings, including unemployment compensation hearings. Correctly documenting when an employee received a pay raise, was promoted to a new job, went on a leave of absence or terminated their employment is also just part of good human resource administrative practices.

Normally, any documented "status change" occurring during the employment relationship should be initiated by the supervisor and approved by the department manager and representative of the human resource department.

Following the processing of the status change, the form is inserted into the employee personnel file for possible future reference. A sample personnel change record form is presented which may be revised to satisfy each company's needs. This type of form is available from any human resource document publishing firm or can easily be developed by in-house human resource and payroll specialists.

CALCULATING EMPLOYEE ABSENTEEISM AND TURNOVER RATES

Employee turnover and absenteeism can significantly and negatively impact business profits if excessive. To determine what is excessive however, one must have a basis for first calculating the amount of turnover or absenteeism occurring, then comparing it to other companies norms. Taking the appropriate steps to improve upon these human resource measurements is addressed in other sections of this manual.

TURNOVER RATE FORMULA:

Number of employee separations during month x 100
average # of employees on payroll during month

Both voluntary and involuntary terminations are included in counting terminations. For example, voluntary terminations such as resignations and retirement are included. Involuntary terminations include workers who are fired but not laid off. Layoffs can constitute a significant percentage of involuntary terminations; however they should not be included in the calculation because they may artificially inflate the amount of turnover in the company for a given year.

JOB ABSENCE RATE FORMULA:

Number of worker days lost through absence during month X 100
(average # of employees) X (# of workdays)

Job absence is defined as unscheduled absence. It does not include long term absences after the first four days; vacations, holidays, or other scheduled leave; or absences of less than a full day.

Tables 1 and 2 provided by the Bureau of National Affairs, Inc. (BNA), depict actual job absence and turnover rates for a sampling of companies nationwide. The reader can compare their own company rates to these reported calculations. 



HUMAN RESOURCE INFORMATION SYSTEMS

Most businesses today are already using computers. Maintaining employee records regarding payroll, benefits eligibility, salary increases, completed training, EEO-1 status, etc. can be non-productive use of time if done manually.

For the company which has its payroll completed by an outside service, options normally exist for maintaining the necessary records and printing useful human resources reports. Internal computer departments or software vendors can also help with such requests.

Before installing or even changing a human resource informative system, several considerations must be kept in mind.

1. Perform a structured needs analysis on what information needs to be stored or retrieved and why.
2. Gather input from other company personnel on their needs for human resource related information. Be sensitive, however, to the need to know of certain information as well as legal compliance concerns. For example, an employee's medical history must be kept confidential.
3. Do not be excessive on the number and complexity of reports you want from a HRIS. Purchase a packaged system that already has most of the reports needed and make a few report modifications.
4. Contact other similar size and type companies to determine successes and pitfalls in their implementing human resource information systems.
5. Install a highly user oriented system that provides all the needed information on interviewing and selection, administration, compensation, benefits, training, labor relations, etc.
6. Ensure proper training of system users but again allow access to only those with a need to know.
7. Complete a yearly audit of your systems to determine areas for improvement or new application possibilities.


Human Resource Information Services

Every human resource professional lives with a shelf full of guidebooks and technical manuals covering everything from benefits administration to labor law to job classification. These books have dense and technical subject matter that is constantly changing; just keeping up with the HR field is a continual challenge. Modem computer technology now allows the human resource practitioner to hook-up to various reference sources such that needed information is literally at ones fingertips. For example, the Bureau of National Affairs (BNA) CD-ROM library includes titles on Employee Benefits, Environmental Compliance, Safety , Human Resources, Payroll and Compensation. Normally, such human resource information is available for preview on floppy disks, demonstration CD or by Internet access. There exist several vendor sources for this type service and comparisons should be made before completing the necessary investment.



Federal Record Retention Requirements





REGULATORY COMPLIANCE

 

SUMMARY OF MAIN FEDERAL HUMAN RESOURCE STATUTES


KEY FEDERAL STATUTES AFFECTING EMPLOYMENT, TERMINATION, EEO, COMPENSATION AND BENEFITS

Following is a brief overview of key regulations that relate to the human resource management function.


Title VII of the Civil Rights Act of 1964, Including Equal Employment Opportunity Act of 1972.

Prohibits job discrimination based on race, color, religion, sex, national origin, age and handicap pertaining to hiring, demotion, transfer, layoff, termination, compensation and benefits, and selection for training for those individuals in protected classes. Protected classes are defined as individuals over age 40, females, Black, Hispanic (Latin American, Mexican, Puerto Rican), Asian, Pacific Islander, Oriental, American Indian, Native American, and Alaskan Native.


1980 Sexual Harassment Guidelines Were Added to Title VII of the Civil Rights Act

Prohibits harassment and provides that an employer is responsible for the acts of its agents and supervisory employees with respect to sexual harassment.


Executive Orders 11246,11375,11141, and 12067; Title 41 of Code of Federal Registry;
Section 503 of the Rehabilitation Act of 1973

Pertains to federal government employees, federal contractors and subcontractors. Provides equal opportunity to all qualified persons; prohibits discrimination based on race, creed, color, national origin, handicap, sex, and age; and other equal employment opportunity guidelines.


Age Discrimination in Employment Act of 1967, Amended in 1978 and 1986 (ADEA)

Prohibits job discrimination based on age for individuals over age 40, regarding hiring, promotion, demotion, transfer, layoff, termination, compensation and benefits, and selection for training. Disallows mandatory retirement.


Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974

Section 402 relates to the Vietnam veteran's equal employment opportunity. It requires affirmative action in hiring qualified Vietnam Era vets for government contractors with contracts of $10,000 or more.


Immigration Reform and Control Act of 1986 (See separate description)

Prohibits hiring of individuals who are not legal residents of the U .S. or who do not have legal certification to be employed in the U.S. Requires proof of citizenship.


Freedom of Information and Privacy Act of 1974

Applies to most federal government agencies as well as private businesses and state and local governments which contract with federal agencies. Provides certain safeguards for an individual against an invasion of privacy. Pertains to required record keeping and access to and disclosure of records.


Family and Medical Leave Act (See separate description)

Under FMLA, businesses employing 50 or more individuals must be required to give an employee up to 12 weeks of unpaid leave for certain family and medical reasons.


Fair Labor Standards Act of 1938, Amended in 1966 (FLSA) (See separate description)

Establishes minimum wage, maximum hours, overtime pay, equal pay, and labor standards, unless an exemption applies (for example, for executives, administrative staff, salespersons, and others).


Equal Pay Act of 1963 (Amendment to Fair Labor Standards Act)

Provides for equal pay for females and males who work of an equal skill, effort, and responsibility, and performed under similar working conditions (excludes differences based upon longevity, merit, production, or any basis other than sex).


Rehabilitation Act of 1973

Designed to promote the employment of people with handicaps by banning discrimination. Pregnancy Discrimination Act of 1978 Establishes the eligibility for pregnancy-related benefits, including health insurance, disability income plans, and leaves of absence, on equal terms with other disabilities.


Employee Retirement Income Security Act of 1974 (ERISA)

Provides standards for employers' funding and vesting of employee benefits and pension plans.


Health Maintenance Organization Act of 1973 (HMO)

Provides for health maintenance organizations (HMOs) in the U.S. There are now over 120 qualified HMOs in the U.S.

HMO Act Amendments

In 1988, the HMO Act had its first significant amendments affecting employer-HMO relationships since initial passage. These amendments affect only federally qualified HMOs. The amendments include: nondiscriminatory employer contributions, a new rate setting method, disclosure of calculations, a self-referral option, and repeal of dual choice.


Omnibus Budget Reconciliation Act of 1986

Pertains to pension participation and taxation.


Consolidated Omnibus Budget Reconciliation Act of 1986 (CORBA) (See separate
description)

Covers continuation of health and dental insurance benefits to employees and their dependents at group rates upon the employees' termination from an employer, if employee pays premiums.

Occupational Safety and Health Act of 1970 (OSHA)

Pertains to providing a safe and healthy workplace, and provides guidelines to follow and forms that must be completed when an accident occurs. In addition, under Hazard Communication Standards, OSHA requires every workplace in the country to identify and list hazardous substances on the premises and train employees how to use them.


Tax Reform Act of 1986

Revision of the U.S. tax law. Changes the way benefits are taxed and the levels at which workers and employers are taxed. The Act contains changes to compensation and benefit provisions of the Internal Revenue Code.


Technical and Miscellaneous Revenue Act

Provides corrections and changes to the Tax Reform Act of 1986. Contains numerous changes to compensation and benefit provisions of the Internal Revenue Code. Reduced the penalty for violation of CORBA among other things. There are revisions in the areas of health care, cafeteria plans, dependent care, and educational assistance.


Worker Adjustment and Retraining Notification Act 

Requires employers of 100 or more full-time workers to give to days' advance notice of closings or major layoffs. Became effective February 4,1989. Impacts employers who are closing a facility or an operating unit with 50 or more workers, or who will layoff at least one-third, but not less than 50 of the full-time employees at a site.


Polygraph Protection Act

In 1989, Congress passed the Employee Polygraph Protection Act which prohibits most private employers from using lie detector examinations either for pre-employment screening or for screening during the course of a worker's employment.


The American with Disabilities Act of 1990 (See separate description)

This legislation prohibits employment discrimination of the disabled by businesses with fifteen or more employees. The Bill guarantees disabled Americans, including AIDS victims, rights to employment, transportation, and the use of restaurants and other businesses.


Drug-Free Workplace Act of 1988

Relates to federal contractors with contracts of $25,000 or more, mandating they provide a drug-free workplace. Contractor must post notice and establish an awareness program.


Resource Conservation and Recovery Act (RCRA)

Provides regulations and guidelines for all businesses in the U .5. regarding the handling of hazardous waste. Oversight of this Act is conducted by the Environmental Protection Agency (EPA). The EPA now requires organizations generating even small quantities of hazardous waste to train all workers to be thoroughly familiar with waste handling and emergency procedures.


Trade and Competitiveness Act of 1988

Provides programs to companies and their workers to help industries hurt by foreign competition to retrain their workers through the Job Training Partnership Act.


State Laws

State laws cover virtually all of the above areas, plus:

Workers Compensation Acts. Provide workers compensation benefits for job-related injuries, death, and disease, regardless of whether the employer or employee was at fault. Benefits provided through insurance paid for and provided by the employer.


Employment Security Acts. Provide for payment of unemployment compensation to individuals who have been separated from their jobs due to no fault of their own.



FAIR LABOR STANDARDS ACT COMPLIANCE

There exist several federal and state statues which regulate workplace wages and hours, imposing strict requirements on employers. These laws require, for example, that companies:

The main law affecting workers pay is the Federal Fair Labor Standards Act or F.L.S.A. which Congress passed in 1938. Key sections of F.L.S.A. coverage are linked here to aid companies in meeting compliance requirements.

The Fair Labor Standards Act establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $5.15 an hour. Overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek.

Unlike most federal statutes, however, the FLSA does not supercede state wage and hour law. Thus, if a state law has a higher minimum wage than the federal minimum wage (currently $5.15 per hour), the state minimum wage would apply to all workers in that state instead of the federal requirement.

Exemption of CMV Drivers from Overtime Provisions

Commercial Motor Vehicle Drivers who are subject to the federal motor carrier hours of service requirements in 49 CFR Part 395 are exempt from the overtime requirements of the FLSA. Section 13(b)(1) of the FLSA, 29 U.S.C. § 213(b)(1), provides an exemption from the overtime requirements (but not the minimum wage requirements) of the Act to any employee with respect to whom the Secretary of Transportation "has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49 U.S.C."

In 1981 the DOTissued an interpretation of its jurisdiction to regulate driver qualifications (49 C.F.R. Part 391) and hours of service (49 C.F.R. Part 395) of drivers engaged in interstate or foreign commerce for purposes of invoking the motor carrier exemption from the FLSA. 46 Fed. Reg. 37902 (July 23, 1981). After reviewing the applicable case law, the DOT concluded that a driver who is called on, or who is subject to being called on, to drive in interstate commerce as part of the driver's regular employment is subject to the DOT's jurisdiction.

This jurisdiction applies even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving. For example, in one case a court said that a driver was not exempt from the FLSA because he was available for interstate hauls even though he had never made an interstate run and only two percent of the carrier's total operations were interstate; in another case, a court stated that employees were not subject to DOT safety jurisdiction because they could not reasonably be expected to handle an interstate run in the normal performance of their duties.

Furthermore, the DOT's interpretation stated that several interstate trips in a short period of time is not sufficient to support a finding of federal jurisdiction over a driver for an unlimited period. If a driver infrequently drives in interstate commerce, the DOT interpreted its jurisdiction to establish a "four-month rule," meaning that a driver who drives in interstate commerce or who is subject to being used in interstate commerce would be subject to Parts 391 and 395 for a period of four months. If the driver does not drive and is not subject to driving in interstate commerce during that four months, the federal jurisdiction no longer applies at the end of the period.

Under this interpretation, a driver who made a single trip across a state line would be subject to the FMCSR, and not subject to the overtime requirements of the FLSA, but only for four months unless the driver subsequently operates or is subject to operating in interstate commerce.

On February 8, 2000, the Federal Motor Carrier Safety Administration revised the 1981 interpretation to eliminate the arbitrary "four-month rule" that provides that a driver who operates in interstate commerce becomes subject to FMCSA jurisdiction for four months thereafter. In its place, the FMCSA instituted a 14/15-day rule, as follows:

1. Any driver who begins a trip in interstate commerce must continue to meet the requirements of 49 CFR 395.3(a) and (b) through the end of the next 7 to 8 consecutive days, depending on which rule the motor carrier operates under.

The driver must continue to comply with the requirements of 49 CFR Part 395, even if he/she operates exclusively in intrastate commerce for the remainder of the 60/70-hour period (i.e. 7-8 day schedule) at the end of the interstate trip. The driver must also continue to comply with the 10- and 15-hour rules as well as the 60- or 70-hour rules for the remainder of that day, and the following 7 days (if the 60-hour rule was applicable) or 8 days (if the 70-hour rule was applicable).

A driver who begins a trip in interstate commerce in a CMV must have in his/her possession a copy of records of duty status for the previous 7 consecutive days, as required by 49 CFR 395.8(k)(2) unless they meet 49 CFR 395.1(e), even if the driver operated only in intrastate commerce during that 7-day period. During the 7-day period prior to the interstate trip the driver may follow the state regulations applicable to intrastate commerce with regard to the states' CMV driving and on-duty requirements.

2. FMCSA investigators should cite drivers for violations of the 10- or 15-hour rules or the 60- or 70-hour rules that are committed while on the interstate trip or during the 7 or 8 days after completing the interstate trip (depending on which rule the motor carrier operates under).

The driver remains subject to Part 395 for 7 or 8 days after a trip in interstate commerce even if he/she drives only in intrastate commerce for that period. Violations of the policies stated here which are discovered during compliance reviews should be treated like any other violations of the FMCSRs in determining the motor carrier's safety rating and enforcement action may be taken.

The [Motor Carrier Safety Assistance Program] Tolerance Guidelines in Appendix C to 49 C.F.R. Part 350 are unchanged. This policy statement simply clarifies the difference between Paragraphs 2 and 3 of the Guidelines, i.e., between the type of trips subject to Federal jurisdiction, as opposed to those subject only to State jurisdiction

Thus, a CMV driver who operates a vehicle across state lines becomes subject to the Federal Motor Carrier Safety Regulations when the driver begins the trip in interstate commerce. The driver is then subject to the FMCSRs for the seven-day period prior to the trip (for purposes of hours of service requirements) and for either seven or eight days after the trip is ended, depending on whether the carrier uses a seven or eight-day week for hours of service purposes. Such drivers would be exempt from the FLSA overtime provisions for the period that they were subject to the DOT's jurisdiction under the 14/15-day rule.

Those drivers who operate solely within a single state are not subject to the FMCSA's jurisdiction under 49 U.S.C. § 31502 and are therefore not covered by the motor carrier exemption to the overtime provisions of the FLSA under 29 U.S.C. § 213(b)(1), however.

FEDERAL AND STATE LABOR LAW POSTING REQUIREMENTS

Federal and state laws require that every employer post specific labor law information in their workplace or risk monetary penalties. If your business has any branch offices or separate locations each must display a complete set of labor law postings.

As an employer, two sets of posting requirements must be completed: federal and individual state. The federal posting requirements include information regarding:

Each state also requires additional postings. Both the number of postings, as well as the legal information itself varies by state. Posters are available from Department of Labor offices both at the state and national level. Often times, posters are also available from local manufacturer or trade associations for a nominal fee. The reader may want to inquire with such sources in their own local area. Human resource forms publishers are another potential supplier of required posters.

The actual posting of these labor law requirements must occur in an area frequently accessed by employees, i.e., main bulleting board area, human resource department, time clock area, main company hallway, etc.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal to discriminate against a person because he or she isn't a U.S. citizen or national. The law forbids discriminating against aliens who have been lawfully admitted to the U.S. for permanent or temporary residence - and aliens who have applied for temporary residence status.

Immigration laws enforced by the Immigration and Naturalization Service (INS) prohibit hiring aliens who don't have government authorization to work in the United States. There are specific procedures which must be followed when hiring employees, even those born and raised in the town where the employer is located.

The proper employer representative and new employee must complete INS Form I-9, Employment Eligibility Verification. This one-page form is intended to ensure that the employee can legally work in the United States and has proof of their identity.

The employee completes Section 1 of the form, attesting that he or she is a citizen or natural of the United States, a lawful permanent resident alien or an alien with work authorization. Only people in these three categories can lawfully work in the United States.

Section 2 of the form requires the employer to review specific documents such as a drivers license, social security card, passport or naturalization certificate presented by the employee as proof of the employee's identity and, employment eligibility.

The employer records the documents examined on the 1-9 Form. It is the employer's responsibility to see if the employee's documents appear valid. The INS requires that the employer must accept documents that reasonably appear to be genuine and relate to the person presenting them.

It is recommended that photocopies of the employee's documents be maintained in case the INS questions employer hiring practices in the future. IRCA documentation should be kept in a locked cabinet separate from all other documents.

Retain all I-9 forms for at least three (3) years following the date of hire or one year following the employee's termination, which ever is longer. The INS has the right to audit I-9's. Companies can be fined if they cannot produce them.


FAMILY AND MEDICAL LEAVE ACT

The following link presents an overview of requirements coming under the Family and Medical Leave Act of 1993. This legislation basically covers companies who have at least 50 employees working within a 75 mile radius.

The Family and Medical Leave Act of 1993 Factsheet (this is a same information as pages 15-18 in the manual)

Physician Certification Form for Family or Medical Leave 

CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA)

A federal law commonly known as COBRA applies to businesses employing 20 or more and offering a group healthcare plan. Employers covered by this law must offer employees and former employees the option of continuing their healthcare coverage if such coverage is lost or reduced because:

Members of the employees family must also be given the opportunity to continue coverage. The chart below depicts the circumstances - qualifying events that trigger an employer's obligation to allow continuing healthcare coverage under a group plan. COBRA gives rights to different people, depending on the qualifying event. How long the benefits must be continued is determined by the qualifying event and whether the covered employee is disabled.


Continuing Coverage For Former Employees

Qualifying EventPeople Entitled to Continuing CoverageHow Long
The employee quits or retiresEmployee, spouse, dependents18 months;  29 months for disabled worker
You fire or layoff the employee for reasons other than gross misconduct.Employee, spouse, dependents18 months;  29 months for disabled worker
You reduce the employee's Employee, spouse, dependents hours so he or she loses coverageEmployee, spouse, dependents18 months; 29 months for disabled worker
The employee diesSurviving spouse, dependents36 months
The employee divorces or becomes legally separatedFormer spouse, dependents36 months
The employee goes on MedicareSpouse, dependents36 months
A dependent loses coverage through marriage or ageDependent36 months

The employee must pay for continuing coverage under COBRA, including both the company and employee's share of the premium. Employers can charge 102% of the premium cost - using the extra 2% to cover administrative costs.

COBRA covers HMO and Pro plans in addition to traditional group insurance plans. COBRA also covers all other types of medical benefits, including dental and vision care.

Businesses covered by COBRA and having a group healthcare plan must give employees and their spouses a written explanation of their COBRA rights when they first become eligible to participate in the plan. When a qualifying event occurs that gives an employee or family member the right to continue coverage, the Plan Administrator then has 14 days to notify the beneficiaries of their rights under COBRA. These beneficiaries have 60 days following the notice to let the company know they want to continue their coverage. If so, the employee or eligible family member sends the proper company representative the monthly premium which is then forwarded to the insurance company. If the beneficiaries don't send the payment when due - or within the grace period - the company can cut off coverage.

THE AMERICANS WITH DISABILITIES ACT (ADA)

The primary purpose of Title I of the ADA is to allow individuals with disabilities to find and hold a job. It bars discrimination against qualified individuals with a disability in regard to job application procedures, hiring, promotion, termination, compensation, job training, and other terms and conditions of employment. To ensure this, the ADA requires equal opportunity and reasonable accommodation.

Employers with 15 or more employees, including part-time employees working for 20 or more calendar weeks in the current or preceding calendar year, must comply with the ADA.

Under the ADA, an employer may not discriminate against a qualified individual with a disability. A qualified individual is one who meets legitimate skill, experience, education or other requirements of an employment position that he/ she holds or seeks and who can perform the "essential functions" of the position with or without reasonable accommodation. An individual with a disability should not be considered unqualified simply because of the inability to perform marginal or incidental job functions. If an individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must determine whether that person could perform the essential functions of the job with a reasonable accommodation. A written job description prepared prior to advertising or interviewing applicants for a job may be considered. as evidence of the essential functions of the job. Note: A complete section later in this manual discusses the development of job descriptions including ADA considerations.

Definition of Disability

A person with a disability under the ADA is an individual who has at least one of the following:

  1. a physical impairment which is defined as a physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic and skin;

  2. a mental impairment which is defined as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and special learning disabilities. A person's impairment is
    determined without regard to any medication or assisted device being used.

  3. has a record of such an impairment; or

  4. is regarded as having such an impairment.

A person who is currently engaging in illegal drug use is not considered to have a protected disability under the ADA, however.

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless the employer can show that the accommodation would impose an "undue hardship" on the business.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has the same employment rights and privileges as those of employees without disabilities.

Although an employer is responsible for notifying job applicants and employees of its obligation to provide reasonable accommodations, it is the responsibility of the applicant or the employee to inform the employer that an accommodation is needed. An employer need not guess, or ask, if an applicant or employee requires an accommodation-the employer may assume that no accommodation is necessary unless the applicant/employee requests an accommodation.

Examples of reasonable accommodation include:

Reasonable accommodation may also include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to perform the original job because of a disability, even with an accommodation. However, employers are not obligated to hire or transfer an applicant or employee who is not qualified for that position. And employers are not required to make an accommodation if it would impose an undue hardship on the operation of the employers business.

"Undue hardship" can include any action that is unduly costly, disruptive, or would fundamentally alter the nature or operation of the business. Factors considered in undue hardship analysis include:

1. the nature and net cost of accommodation;

2. the financial resources of the facility, number of employees and effect on expenses and resources of the facility;

3. the overall financial resources, size, number of employees, and type and location of facilities of the company or parent company; if any;

4. the type of operation of the company, including structureof the workforce, geographic separateness, and administrative or fiscal relationship of the facility to the company; and

5. the impact of the accommodation on the operation fot he facility, including impact on the ability of the other employees and the facility as a whole to conduct business.


Major Life Activities

Major life activities are activities that an average person can perform with little or no difficulty. Examples include speaking, walking, breathing, seeing, performing manual tasks, hearing and learning. The name of an impairment or a condition does not determine whether a person is protected by ADA, but rather the effect of an impairment or condition on the life of a particular person and how long it will last, or is expected to last. Some impairments, such as blindness, deafness, HIV infections or AIDS, are by their nature substantially limiting. Others such as broken limbs, sprains, infections, concussions, or appendicitis would not be considered disabilities because they are temporary conditions.


Job Interview Questions

A guiding principle according to EEOC requirements is that while employers may ask applicants about the ability to perform essential job functions, employers may not ask about a disability at the pre-offer stage. The focus on pre-offer inquiries should be on the applicant's ability to perform the job, not on physical characteristics. For example, it is illegal to ask:

An employer may describe orally or in writing the specific functions of the job, making it possible to ask whether the applicant can perform these functions, with or without an accommodation. An applicant may be asked to describe or demonstrate how he or she will perform specific job f