M3A2 Human Resources

Identified specific, relevant, and logical ethical issues that could be impacted by merger activities.

Identified specific, relevant, and logical legal issues that could be impacted by merger activities.

Provided a detailed and realistic explanation for how the proposed plan would contribute to ethical work environment.

Developed a clear, concise, realistic, and feasible plan that includes specific details about sound, logical ideas for resolving the ethical and legal issues presented.

Wrote in a clear, concise, and organized manner; demonstrated ethical scholarship in accurate representation and attribution of sources; and displayed accurate spelling, grammar, and punctuation.

Module 3 Overview

This module focuses on specific civil rights and labor laws that govern HR policies and practices. You will also explore legal and ethical issues based on a scenario.

In Module 1, we discussed the four forces that shape HR strategies:

· Social

· Technological

· Economic

· Political

Federal, state, and local laws affect all of these domains, and your understanding of legal and governmental mandates and standards is vital to formulating a viable HR strategy.

Many legislative and legal constraints affect business policies and HR planning. Understanding these issues can help avoid financial and legal issues in the future. For example, is an employee with diabetes who takes daily insulin protected by the Americans with Disabilities Act (ADA)? The answer is yes (The U.S. Equal Employment Opportunity Commission, 2008). If your managers fail to understand the ramifications of this detail, they could (even inadvertently) harass or otherwise discriminate against an employee who may file a complaint with the Equal Employment Opportunity Commission (EEOC). Your organization then may incur legal expenses to defend or settle the dispute, all of which could be very expensive.

We will examine some of the major federal laws that impact HR on the following pages. You may also wish to explore the resources provided by SHRM and ASTD for best practices and benchmarks in civil rights and labor laws. HR professionals could refer to these sources for talent management as well.

Strategic HR addresses legal and regulatory issues in terms of planning and policy. It helps guide businesses and organizations through red tape and encumbrances.

In the first assignment in this module, you will discuss the federal, state, and local laws that drive HR policies, procedures, and practices. The second assignment will be your first Required Assignment of this course. You will identify ethical and legal issues involved in a merger and develop a plan to resolve these issues.

The U.S. Equal Employment Opportunity Commission. (2008). The ADA: Your responsibilities as an employer. Retrieved fromhttp://www.eeoc.gov/facts/ada17.html

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· Incorporate strategic human resource management principles in the development of programs that meet organizational needs and enable the organization to maintain a competitive advantage.

· Distinguish between ethical and unethical behavior given certain organizational circumstances (both domestic and international) based on knowledge of basic employment law and ethical principles.

· Recommend talent management strategies that support the HR strategic plan and the competitive strategy of the organization.

Civil Rights Laws

Civil rights laws are federal statutes designed to protect races and/or classes from behaviors (such as discrimination or harassment) or barriers (such as systemic roadblocks to advancement or physical access limitations) defined in the statutes and acts. HR managers should be knowledgeable about such statutes and acts and should consider the myriad provisions of these laws while designing the HR strategy. Here are some highlights.

Title VII of the Civil Rights Act of 1964

Title VII of the 1964 Civil Rights Act prohibits discrimination against employees on the basis of “race, color, religion, sex, or national origin” and applies to virtually all businesses in the U.S. except for those with fewer than 15 employees. This act established the Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing anti-discrimination laws for employees as well as job applicants.

While violations can often be resolved through mediation overseen by an EEOC representative, unresolved cases can go to litigation and become extremely costly. Proper treatment of candidates and employees, complete documentation of the hiring process, and ongoing maintenance of personnel records can be significant factors in the prevention of violations, which can cost organizations time, money, and their reputation.

You can learn more about this act and the EEOC athttp://www.eeoc.gov/laws/statutes/titlevii.cfm.

http://www.eeoc.gov/federal/training/index.cfm

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) protects workers over 40 from discrimination in terms of hiring, firing, pay, promotions, or layoffs, and applies to businesses with 20 or more employees. Those who feel they have experienced such discrimination must file an EEOC claim within 180 days. You can find more information about this act athttp://www.eeoc.gov/laws/types/age.cfm.

Title II of the Genetic Information Nondiscrimination Act of 2008

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from using genetic information to discriminate against employees or job applicants. While it may seem that genetic information would be protected under certain privacy laws, there are legitimate ways that an employer may become aware of such information (overhearing a conversation or acquiring DNA data due to the nature of certain law enforcement jobs). Even if an employer possesses such genetic information, the company cannot use it in making employment decisions. You can learn more about GINA at http://www.eeoc.gov/laws/types/genetic.cfm.

Americans with Disabilities Act of 1990

The Americans with Disability Act of 1990 (ADA) is enforced by the EEOC and prohibits discrimination of employees or job applicants with disabilities in the workplace. The law prohibits harassment of those with disabilities and requires employers to provide reasonable accommodation to help a disabled person perform job duties unless such accommodation provides undue hardship to the employer.

While the ADA does provide definitions for “reasonable” and “undue hardship,” what is reasonable varies among different employers. Undue hardship for a small employer is likely different from undue hardship for a large employer. This leaves plenty of room for various interpretations, resulting in complications in practice.

You can find more information about the ADA athttp://www.eeoc.gov/laws/types/disability.cfm.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

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Health and Safety (OSHA)

The Occupation Safety and Health Act of 1970 established the Occupational Safety & Health Administration (OSHA) within the Department of Labor. OSHA’s mission is to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and providing training, outreach, education and assistance” (U.S. Department of Labor, OSHA, n.d.). OSHA has legal authority through the government legislative process to promote employee health and safety in the workplace and also provide “whistleblower” protections for workers who report unsafe working conditions.

It is easy to envision safety issues in heavy industry where workers can be exposed to molten steel, toxic chemicals, lasers, asbestos, under-ventilated mines or hot rivets at a skyscraper construction site. But, office workers can also be exposed to safety issues such as unsecured file cabinets, computer cables taped across thresholds, wet floors, or icy sidewalks. There are also physical health risks associated with repetitive stress injuries, back strain, and air quality that many offices regularly face.

HR strategy should consider and HR managers must be knowledgeable about such safety regulations since these statutes and acts may have a bearing on HR policy and procedures. Employee injuries and even death are undesirable outcomes to say the least. Aside from moral and ethical concerns and the impact to morale, there are significant fines and legal ramifications for ignoring safety issues.

You can learn more about OSHA at http://www.osha.gov/.

U.S. Department of Labor, Occupational Safety & Health Administration (OSHA). (n.d.).About OSHA. Retrieved from http://www.osha.gov/about.html

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Equal Pay Laws (Fair Labor Standards Act)

Equal pay laws include federal statutes designed to provide protection from illegal pay practices defined in the statutes and acts. Here are some highlights:

· The Fair Labor Standards Act of 1938 (FLSA) initially established the maximum number of hours in a workweek and a minimum hourly wage as well as established overtime pay for certain jobs and limits on child labor. The act has been amended over the years to increase the minimum wage, lower the maximum number of hours in a workweek, and establish equal pay provisions for women.

· The Equal Pay Act of 1963 makes it illegal to pay women less than men for the same job.

· The Migrant and Seasonal Agricultural Worker Protection Act of 1983 includes provisions about wages and working conditions for migrant farm workers.

HR strategy should consider and HR managers must be knowledgeable about such statutes and acts since they have bearing on HR policy and procedures.

These acts are administered by the Department of Labor. Just as with other federal statues we have discussed so far, failure to comply with these regulations can often result in legal action which can involve back pay from the time of the infraction. You can learn more about the fair labor regulations athttp://www.dol.gov/whd/flsa/.

Equal Pay for Women

There is an ongoing debate over the issues of equal pay for women. Advocates for additional legislation argue that a pay gap exists between what men and women can earn over their working lifetimes. Opponents argue that the lifetime disparity has more to do with women taking time off (sometimes for many years) to raise families, care for elderly parents, or pursue other interests. A recent development was the passage of the Lilly Ledbetter Fair Pay Act of 2009 which addresses the 180-day filing limit of a complaint. The new law amends the 1964 Civil Rights Act and other related statutes to state that the 180-day filing limit resets with each paycheck that has been subject to unequal pay discrimination. As such, women, such as Lilly Ledbetter, who discover that they have been unfairly paid for years, can still find a remedy even though they did not file a complaint within the 180-day filing limit of the initial unequal paycheck.

In the specific lawsuit initiated by Lilly Ledbetter under the 1964 Civil Rights Act, she claimed that she only discovered her pay inequity shortly before her retirement, which is why she did not file a complaint within the initial 180-day period following the first paycheck in question, some 20 years earlier. The Supreme Court eventually ruled against her in 2007 because the statute clearly stated the 180-day limitation. The new law establishes a revised time limitation indicating that the 180-day limitation is not limited to the initial unfair paycheck, but essentially to the most recent one. In other words, if a woman discovers that she has been unfairly paid over a long period of time, she can still file a complaint within 180 days of her most recent “unfair” paycheck. It may be worth pointing out that Ms. Ledbetter was never able to obtain back pay or damages because of the Supreme Court ruling in 2007. But, her continuing efforts on this issue resulted in Congress changing this single provision which removes a barrier to women seeking equal pay. You can access the statute at http://www.govtrack.us/congress/bills/111/s181/text.

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FMLA

Another act administered by the Department of Labor is the Family and Medical Leave Act of 1993 (FMLA), which entitles eligible employees defined in the law to unpaid job-protected leave for specific reasons including the following circumstances:

· The birth or adoption of a child

· The care of a family member with a serious health condition

· The care of oneself due to a serious health condition

· A qualifying emergency

Employees covered under this law and approved for such unpaid leave cannot be removed from their jobs during the leave. The FMLA also includes other provisions such as break time for nursing mothers and special rules for returning military reservists.

HR strategy should consider and HR managers must be knowledgeable about FMLA provisions in order to fairly administer the law and comply with its detailed provisions.

· You can access news and information about compliance athttp://www.dol.gov/whd/regs/compliance/ca_main.htm.

· You can access the text of the law athttp://www.dol.gov/whd/regs/statutes/fmla.htm.

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Labor Relations Laws

The National Labor Relations Act of 1935 (also known as the Wagner Act) protects private sector workers as they engage in collective bargaining or engage in work stoppages such as strikes. The act also established the National Labor Relations Board (NLRB) as an independent agency responsible for conducting labor union elections and investigating claims of unfair labor practices. The NLRB also facilitates settlements, adjudicates specific cases, and enforces its orders through the US Court of Appeals when voluntary compliance does not occur.

Labor unions have a long history in the U.S. and were initially focused on large industries such as steel, mining, railways, automotive and other manufacturing, and longshoremen. There are also unions for communications workers, teachers, musicians, professional athletes, health workers, electricians, carpenters, actors, and public employees. Union negotiated contracts not only focus on wages and benefits, but also on working conditions and practices. In most cases, negotiated improvements in benefits and other working conditions are extended to non-unionized employees as well.

HR managers in organizations that include union members must be fully aware of fair labor laws and all aspects of the negotiated contracts especially as they apply to HR policy and procedures. But, even those organizations that do not include union members must be aware of both employer and employee rights and responsibilities if there is an attempt to organize employees.

You can learn more about the National Labor Relations Act and the NLRB athttp://www.nlrb.gov/.

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SOX (Whistle Blowers)

The Sarbanes-Oxley Act of 2002, typically referred to as SOX, is enforced by the Securities and Exchange Commission (SEC). The law requires all publicly traded companies in the U.S., as well as management and accounting firms, to certify the accuracy of their financial information. The law also provides extensive protection for employee whistleblowers and includes the following key provisions:

· The law requires publicly traded companies to create internal and independent audit committees as well as establish confidential whistleblower complaint procedures.

· The law established ethical standards for attorneys who appear before the SEC.

· The law criminalizes retaliation against whistleblowers for all employers, not just those employed by publicly traded companies.

· The law establishes the authority of the SEC to enforce every part of the statute.

You can access the text of the law at http://www.sec.gov/about/laws/soa2002 .

HR strategy should consider and HR managers must be knowledgeable about such the Sarbanes-Oxley law, particularly the whistleblower provisions as they apply to HR policy and procedures.

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Health Reform

One of the most sweeping pieces of legislation that addresses the financing and delivery of healthcare is the Patient Protection and Affordable Care Act of 2010 (United States Government, 2010). This law, frequently referred to as the ACA or health reform, is designed to increase access to health coverage for uninsured Americans, as well as provide new protections for people who have insurance but were unable to obtain coverage for a preexisting condition such as cancer. Some of the law’s provisions became immediately effective while others have effective dates up to and including 2015. You can see a timeline showing “what changes when” athttp://www.healthcare.gov/law/timeline/index.html.

The ACA addresses a broad scope of issues including healthcare access and affordability, the financing of government healthcare programs, preventative care and public health, medical technology, and the reauthorization of the Indian Health Care Improvement Act. There are significant provisions applicable to both small and large businesses as they meet the requirement to provide employee access to health insurance. There are also tax implications for all businesses as well as a requirement for employers to report the cost of coverage under an employer-sponsored group health plan on each employee’s W-2 form beginning in 2012. Reporting the cost, however, does not mean that the coverage is taxable.

The ACA poses challenges to HR managers as they seek to explore its full impact on policies and procedures. This is further complicated by the fact that rules and regulations continue to be formulated by the Department of Health and Human Services (HSS).

· The government Web site HealthCare.gov (maintained by HSS) provides extensive information including specific pages for employers athttp://www.healthcare.gov/using-insurance/employers/index.html.

· You can access the complete text of the law athttp://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr .

· The Department of Labor Web site also provides extensive information useful for businesses to comply with the law and its myriad provisions:http://www.dol.gov/ebsa/healthreform/.

· The Henry J. Kaiser Family Foundation Web site also provides extensive information, research, and analysis: http://healthreform.kff.org/.

United States Government (2010, March 23). Public Law 111–148 111th Congress: An Act Entitled The Patient Protection and Affordable Care Act. Retrieved fromhttp://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148

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State and Local Laws

So far, we have examined important federal employment laws. However, each state and many municipalities also have employment laws. State and local regulations cannot supersede federal law, but they can clarify or further constrain the resolution of a case or complaint. Additionally, state and local laws can vary widely, which adds additional complications to those employers with locations in multiple cities or states. Consider these examples:

· Some states and local municipalities impose income taxes, which require employers to maintain careful records so that taxes are deducted from applicable income.

· Some states have a “right to work” law, which means that employees are not required to join a union in order to be hired.

· Some states have unique safety and labor laws that add conditions to federal employment laws.

· Some states have alternative dispute resolution choices for labor negotiations that add to federal employment laws.

The Department of Labor provides links to state labor offices as well as to a variety of state fair labor practices at http://www.dol.gov/whd/state/state.htm. For example, you can display summaries as to how various states regulate child entertainment occupations or door-to-door sales by minors.

International laws may also have a bearing on the HR strategy with an increasing number of employers choosing to operate internationally as well as nationally. Laws in various countries can differ drastically and present additional challenges and responsibilities to those charged with compliance. Because of these layers of complexity, employers often find compliance difficult. A lack of awareness, constant changes, variability in interpretation, and lack of clarity can all contribute to noncompliance, subjecting employers to penalties.

The first step in avoiding these issues is to develop an awareness of relevant federal, state, local, and even international laws to determine how such laws affect your HR policies and procedures. This is followed by the process of identifying resources and maintaining current knowledge of the laws and their interpretation.

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