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The Legal Side of HR Practice
By Max Muller
AMACOMCopyright © 2012 American Management Association
All right reserved.
By the end of this chapter, you should be able to:
Describe the processes of defining a job position.
List major steps related to legal, nondiscriminatory recruitment.
Adhere to major statutes related to recruitment documentation.
Define major pre-employment issues.
Recognize the key components of employment interviews, including the role of the Americans with Disabilities Act.
Engage in the process of drafting competency-based questions, closing, and documenting a job interview.
Onboarding involves the entire process of recruiting, interviewing, hiring and orienting new hires—and, ultimately in setting the stage for employee retention. In other words, it's good talent management.
If the onboarding process is founded on policies that comply with federal, state, and local statues, as well as reflecting the organization's business interests, it also helps you prove that your hiring decisions are based on legitimate, work-related reasons and not on discrimination related to race, religion, age, sex, or any other legally protected characteristic.
Each stage in the onboarding process is essential in establishing and developing a productive and harmonious workforce. The HR department or specialist within an organization is a primary source of guidance to individuals throughout the organization who must recruit, interview, manage and, if necessary, discipline employees. This guidance comes in the form of drafting, disseminating, and helping to implement the organization's policies of whatever nature and kind related to the employer-employee relationship. HR is often viewed as the definitive source of interpretation as to what a policy actually means and how it is to be carried out.
Defining the Position
Before you can successfully recruit and hire the right person you must understand the job you are hiring them to do. This includes defining minimum requirements related to education, specific skills sets, scheduling availability, and more. Your understanding must be reflected in a good job description.
A job description provides a summary of the tasks to be performed and states specific requirements of the position. The job description serves many different functions:
It lists minimum performance expectations.
It discourages uninterested and unqualified individuals from applying.
It serves as a guideline for selecting and interviewing candidates, and in making your decision on which one to hire.
It forms the basis for training needs.
It establishes benchmarks for performance evaluation.
It may act as evidence against grievances, wrongful termination lawsuits, or claims of discrimination or retaliation. If all employees in a particular job have been judged by the same job-related criteria, then it is difficult for an unhappy worker to claim that he or she has been treated differently and that the reason must be based on factors such as race, religion, or sex.
The first order of business in developing a good job description is for HR and the individuals that will be managing the position in question to analyze the job in terms of:
Skills and knowledge required
How the work is performed
Typical work settings
Job analysis enables you to identify and determine in detail the particular job duties, requirements, and the relative importance of these duties and requirements for a given job by undertaking the following steps:
1. Review existing job description, if any.
An existing job description, even if it's out of date, represents a starting point from which to derive basic technical skills, reporting relationships, and other information.
2. Review public source information and job classification systems. Examples:
The Occupational Information Network (O*NET®) System, onetcenter.org
Database of occupational requirements and worker attributes
Comprehensive source of descriptors, with ratings of importance, level, relevance or extent, for more than 900 occupations
Uses a common language and terminology to describe occupational requirements
The Occupational Outlook Handbook (OOH), bls.gov/oco/home.htm
Publication of the United States Department of Labor Bureau of Labor Statistics
Includes information about the nature of work, working conditions, training and education, earnings, and job outlook for hundreds of different occupations
Released biennially with its companion publication, the Career Guide to Industries
3. conduct incumbent surveys and interviews.
Find out what the people who have actually been doing the job think. What technical skills do they think are required; to whom do they believe they report (irrespective of what an organization chart says)? A checklist questionnaire can be a helpful way to obtain information for the job description.
4. Conduct supervisor surveys and interviews.
Surveying and interviewing supervisors will provide you the information you need to determine the core competencies required for the specific job in question. See online Exhibit 1-1 at amaselfstudy.org/go/HRPractice for an example of what part of a supervisor job survey of core competencies for a bookkeeping, accounting, or auditing clerk's position looks like.
5. Distill the information into a usable form.
After completing information gathering through Analytic Steps 1 through 4, compile the information into a useable form through the creation of a Job Audit form and an Essential/nonessential Tasks chart. See online Exhibit 1-2 Job Audit form and 1-3 Essential/nonessential Duties and Responsibilities at amaselfstudy.org/go/HRPractice.
Writing the Job Description
It takes time to write an effective job description, but defining the duties and skills pertinent to a specific position is essential to hiring a successful candidate in a legally safe manner.
When writing a job description:
Use gender-neutral language.
Describe what knowledge, skills, and abilities are required of the applicant.
List the exact duties the job includes.
A good format to follow is:
Summary statement—provides a synopsis of the major purpose of a position and its role in the department.
Duties—major subdivisions of work performed by one individual.
Tasks—work operations that are logical, essential steps in the performance of a duty. The "Tasks" section of the description defines the methods, procedures, and techniques by which duties are carried out. It should show what is done (action), how it is done (procedures, materials, tools, or equipment), and why it is done (purpose). Begin each task statement with an action verb in the first person present tense: for example, write, calibrate, analyze, coordinate, approve, accept, devise, develop.
Degree of supervision, given/received.
See online Exhibit 1-4 at amaselfstudy.org/go/HRPractice for an example of a Human Resource generalist job description.
In order to demonstrate that your hiring practices are directly related to the knowledge, skills, abilities, and experience necessary to perform the functions of the position, it is recommended that job descriptions be reviewed annually.
Attracting a large pool of qualified applicants must be undertaken in a legally safe manner.
Statutes Requiring Affirmative Action Plans In Recruitment
The following laws mandate affirmative action when recruiting applicants.
Executive Order 11246
For federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the company's written personnel policies. Employers with written affirmative action programs must implement them, keep them on file, and update them annually.
Executive Order 11246 (E.O. 11246) prohibits federal contractors and subcontractors and federally-assisted construction contractors and subcontractors that generally have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. It also requires covered contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
E.O. 11246 is administered by the office of federal contract compliance Programs (OFCCP) within the U.S. Department of Labor.
Section 503, Rehabilitation Act of 1973
Section 503 of the Rehabilitation Act of 1973 (Section 503) prohibits discrimination and requires employers with federal contracts or subcontracts that exceed $10,000 to take affirmative action to hire, retain, and promote qualified individuals with disabilities. Many of the requirements of Section 503 regarding reasonable accommodations are the same as those of the Americans with Disabilities Act (ADA). All covered contractors and subcontractors must also include an EEO clause in each of their nonexempt contracts and subcontracts.
This law is enforced by the Employment Standards Administration's office of OFCCP.
Section 4212, Vietnam Era Veterans Readjustment Assistance Act
The affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA or Section 4212) are administered by OFCCP and the Veterans' Employment and Training Service (VETS). Section 4212 generally covers employers with federal contracts or first-tier subcontracts that meet the threshold amount specified in the statute (generally $100,000).
Uniformed Services Employment And Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. §§ 4301–4335) is a federal law intended to ensure that persons who serve or have served in the Armed forces, Reserves, national guard, or other "uniformed services":
1. Are not disadvantaged in their civilian careers because of their service.
2. Are promptly reemployed in their civilian jobs upon their return from duty.
3. Are not discriminated against in employment based on past, present, or future military service.
USERRA applies to all public and private employers in the United States, regardless of size. For example, an employer with only one employee is covered for purposes of the Act.
USERRA's definition of "service in the uniformed services" covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war. Although most often understood as applying to national guard and reserve military personnel, USERRA also applies to persons serving in the active components of the Armed forces. Certain types of service specified in 42 U.S.C. 300hh-11 by members of the national Disaster Medical System are covered by USERRA.
USERRA would protect someone from being denied employment because they are going to join the armed forces or have joined the armed forces on a deferred entry basis.
USERRA does not supersede, nullify, or diminish any federal or state law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes an employment right or benefit that is more beneficial than, or is in addition to, a right or benefit provided under the Act. For example, although USERRA does not require an employer to pay an employee for time away from work performing service, an employer policy, plan, or practice that provides such a benefit is permissible under USERRA.
Legal Recruiting Generally
Whatever recruiting technique you use, you must always be careful not to give the impression that a hiring decision, whether positive or negative, will be made on other than job-related criteria.
Internal Job Postings
There is no legal requirement to give current employees notice of vacancies or any right of first refusal. However, if an organization does not publicize job openings through internal physical postings on bulletin boards, at meetings or through the organization's website and/or web blog there is a danger that current employees will argue that they have been excluded based on age, race, religion, or other protected characteristic. The argument will be couched in terms of, "I am in the XYZ protected class. I was qualified for the job. I was not hired for the job. The company hired someone who is not in the XYZ protected class and is no more qualified than I am. I believe it was because I am a member of the XYZ protected class."
In order to control disruptive internal job transfers, many organizations limit how soon or how often a current employee can apply for any opening. for example, the company policy might state that the "employee must be with the company for at least a year and in their present job for six months in order to become eligible to apply for a vacancy." As long as these rules apply uniformly to all employees, they are legal.
Current employee referrals, especially from good performers, are an effective source of job applicants.
Employee referral programs may be perceived as discriminatory in practice. for example, if an existing work group is fairly homogenous—say, 98 percent of all workers are African American women or white women or Asian men—the company will end up simply hiring more people within the same limited group and having a disproportionately negative impact on all others. That would constitute "disparate impact" discrimination. See Job-Related Ad Language later in this chapter.
Section 703, civil Rights Act of 1964 (CRA), other federal laws, and the fair employment practice acts (FEPAs) of almost every state makes it an unlawful employment practice for an employer, employment agency, or labor organization to deprive any individual of employment opportunities because of the applicant's race, color, religion, sex, national origin, physical disability, or other characteristic protected by law.
Employers covered by these laws cannot fail or refuse to hire because an individual is a member of a protected class. Nor can they print or publish, or cause to be printed or published a job advertisement that may adversely affect a member of a protected class.
Job-related Ad Language
A discriminatory job advertisement is one which indicates, or which might reasonably be understood as indicating, that an employer intends to commit an act of unlawful discrimination when determining who should be offered employment or promotion. Intent to discriminate is determined from what an employer says or does—not from what it actually meant.
An advertisement must be read as a whole and you must be careful of not only the words you use, but also of the pictures it contains. Example: for example, a job ad for a mechanic that features a male mechanic or an ad for a nurse that presents a picture of a female nurse both indicate a preference based on sex (gender).
Disparate impact is a central issue when analyzing any discriminatory intent found in a job advertisement. Disparate impact is an employment practice that appears to be neutral but which, in practice, disproportionately and adversely impacts members of a protected group. It doesn't have to eliminate everyone in the protected group—merely a statistically significant number of that group. For example, a job ad that states a height requirement may have a disparate impact on women or Asians (national origin discrimination).
A bona fide occupational qualification (BFOQ) is a narrow exception regarding discriminatory job requirements if there is a characteristic that a candidate must possess to actually do the job in question. The BFOQ must be significantly necessary for the operation of the employer's business. For example, being female is not a BFOQ for working in a women's health club in such positions as a manager or trainer, however, it could be required for an attendant in the women's locker room.
Other areas where issues related to disparate impact might arise are:
Facial hair (may conflict with religious observances or certain races prone to ingrown hairs that make shaving painful)
Referrals from current workforce (if current workforce is predominantly of one race or gender, for example)
Employers have certain responsibilities regarding retention of resumes and job applications.
OFCCP regulations require that federal contractors maintain all job postings and advertisements, applications received, any interview notes, test and test results, records of job offers, and the applications themselves for a period of two years from the date of the record or the personnel action.
Contractors with fewer than 150 employees or a contract of less than $150,000 need only keep these records for a period of one year. See 41 CFR 60-1.12(a).
Private Sector Retention of Applications and Resumes
The requirements for retaining applications and resumes vary, depending upon the circumstances under which they are submitted.
Excerpted from The Legal Side of HR Practice by Max Muller Copyright © 2012 by American Management Association. Excerpted by permission of AMACOM. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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