Tools to Use to Mitigate and Identify Workplace Harassment

 

In the age of digital and social media, harassment isn’t confined to the office or during work hours. Harassment can take place on social media platforms. The U.S. Equal Employment Opportunity Commission (EEOC) recommends that workplace anti-harassment policies incorporate dealing with social media. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As a result, the EEOC found that “harassment should be in employers’ minds as they draft social media policies and, conversely, social media issues should be in employers’ minds as they draft anti-harassment policies.”

In our post, “How to Handle Harassment in the New Workplace,” we defined workplace harassment and explored how to handle violations in order to protect your employees as well as your company. Significant changes in technology over the past decade are having a profound impact on human resource policies, from screening candidates to monitoring employee activity on social media sites.

The Role of Social Media in Workplace Harassment 

There are a number of legal issues involved in using social media to draw conclusions about a potential job candidate or about an existing employee. In some states, it is illegal to access such information, while in other states employers could be accused of negligent hiring and negligent retention if they do not take necessary action after gaining information from social networking sites.

Social Media in Screening

SHRM’s 2016 survey, Using Social Media for Talent Acquisition—Recruitment and Screening, found that 84 percent of organizations are using social media for recruiting, that 43 percent are using it to screen applicants and that 66 percent are taking steps to leverage mobile recruiting to target smartphone users.

When recruiters use online search engines and social networking sites to screen job candidates quickly, easily and informally, they may pull up either a wealth of helpful information or very little, depending on how protective the prospective employees are of their online privacy. In spite of these risks and uncertainties, human resources is increasingly using the Internet as an HR tool.

For example, social media can provide a snapshot of applicants’ professional personas. Do they belong to professional organizations? What type of volunteer activities are they involved in? What type of other organizations do they align themselves with? Will they represent the organization well in the community?

Social Media Employee Monitoring 

Once a candidate becomes an employee, social media policies are now a must for today’s workplace. While employers don’t want employees feeling as if they are being “watched” 24/7, it has become necessary to prevent harassment. It’s also a delicate balancing act.

It’s important to understand that employers can be held liable for actions their employees take within the course and scope of employment. For example, if an employee posts false statements or rumors about a competitor or co-worker on Facebook, you might be exposed to potential defamation claims.

Currently, there are no specific federal laws that prohibit an employer from monitoring employees on social networking sites. You can install software on company computers that does this, or hire third-party companies to monitor online activity. But to maintain trust among your employees, you should develop a social media policy that clearly defines acceptable behavior and whether your company will monitor access and usage at work.

At the minimum, your social media policy should state that employee online behavior must not violate privacy laws, or be discriminatory, or defamatory. Your policy should also keep up with evolving federal and state regulations aimed at social media activity in the workplace.

Cautions When Disciplining Employees for Social Media Use Outside of Work 

Some states have laws that prohibit employers from disciplining an employee based on off-duty activity on social networking sites unless the activity can be shown to damage the company in some way. In general, posts that are work-related have the potential to cause the company damage. Anti-discrimination laws prohibit employers from disciplining employees based on age, race, color, religion, national origin or gender.

Off-duty employee conduct, such as social media posts, may also be protected under federal laws. As many employers have learned the hard way, the National Labor Relations Board (NLRB) may restrict an employer’s right to terminate an employee for posting disparaging comments on social media. You can also violate NLRB rules by maintaining overbroad social media policies if they prevent employees from discussing their wages or other conditions of employment.

The NLRB has issued a number of rulings involving questions about employer social media policies. The NLRB has indicated that these cases are extremely fact-specific and has provided the following general guidance:

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Your employees can be great brand ambassadors on their own social sites as well as posting on company accounts and blogs, if they’re clear on what constitutes good online habits.

Ongoing Criminal Monitoring 

Continuous background criminal checks are required to ensure your company is protected — an initial background screen is no longer sufficient to prevent potential liability.

For ongoing monitoring related to criminal activity, employers should consider hiring a third party to conduct the search. Employers should determine what type of information is relevant to the job and instruct search firms to report only this type of information, thereby avoiding potential lawsuits related to information that is protected by law, such as religious or political affiliation.

Additionally, because the laws vary from state to state (and they change over time), a third party firm specializing in criminal screening will save your company time in research what is and what isn’t legal to report on, as well as what information may result in disciplinary action up to and including termination.

How to Identify and Mitigate Workplace Harassment 

Screening tools can be highly effective for mitigating and identifying workplace harassment.

Companies have valid reasons and effective social listening tools for monitoring employees’ social media activities, especially if they suspect wrongdoing. However, if companies are not careful, they can violate state or federal regulations or elicit lawsuits from employees. Human Resources already has its hands full, but ensuring its policy on social media and ongoing criminal screening is up-to-date is imperative.

According to SHRM, the role of the human resource management professional in managing workplace privacy is to facilitate the adoption of reasonable and effective practices that protect employees while minimizing the risk of employer liability. HR should ensure that the monitoring is narrowly tailored, that the need is supported by a legitimate business justification and that employees understand they have no reasonable expectation of privacy. Letting employees know that they will be monitored removes employees’ reasonable expectation of privacy — the element that often forms the basis for invasion of privacy lawsuits arising under common law.

jim owens cisive

James C. Owens
President and CEO

How to Handle Harassment in the New Workplace

Hostile Work Environment

 

In the era of #MeToo, the subject of workplace harassment is a complicated one. It’s no longer enough to have an open door policy or a 1-800 number to anonymously report concerns. Companies must take deliberate measures in order to educate, train, and anticipate how workplace harassment might happen, how to conduct the employee investigation, and the different ways in which incidents might occur and how they should be handled.

Workplace harassment isn’t just sexual harassment. In fact, in the era of technology social media and electronic communication, workplace harassment isn’t limited to office behavior like bullying, snide comments, or cold stares. Behavior that creates a hostile work environment can impact employees that work remotely if the harassment takes the form of online trolling or abuse. In this post, we’ll define workplace harassment and explore how to handle violations in order to protect your employees as well as your company.

jim owens cisive
James Owens, President and CEO

Defining Workplace Harassment
In the United States, Canada and in some European Union Member States, employers are responsible for providing their employees with a work environment that does not discriminate and is free of harassment. According to the United States Department of Labor, there are two basic types of unlawful harassment.

(1) Quid Pro Quo Harassment (“This for That”)
Quid pro quo harassment generally results in a tangible employment decision based upon the employee’s acceptance or rejection of unwelcome sexual advances or requests for sexual favors, but it can also result from unwelcome conduct that is of a religious nature. This kind of harassment is generally committed by someone who can effectively make or recommend formal employment decisions (such as termination, demotion, or denial of promotion) that will affect the victim.

Examples:

  • supervisor who fires or denies promotion to a subordinate for refusing to be sexually cooperative;
  • supervisor requires a subordinate to participate in religious activities as a condition of employment;
  • supervisor offers preferential treatment/promotion if subordinate sexually cooperates or joins supervisor’s religion.

(2) Hostile Work Environment Harassment
A hostile environment can result from the unwelcome conduct of supervisors, co-workers, customers, contractors, or anyone else with whom the victim interacts on the job, and the unwelcome conduct renders the workplace atmosphere intimidating, hostile, or offensive.

Examples of behaviors that may contribute to an unlawful hostile environment include:

  • discussing sexual activities;
  • telling off-color jokes concerning race, sex, disability, or other protected bases;
  • unnecessary touching;
  • commenting on physical attributes;
  • displaying sexually suggestive or racially insensitive pictures;
  • using demeaning or inappropriate terms or epithets;
  • using indecent gestures;
  • using crude language;
  • sabotaging the victim’s work;
  • engaging in hostile physical conduct.

When Harassing Conduct Violates the Law

First, unlawful harassing conduct must be unwelcome and based on the victim’s protected status. Second, the conduct must be: subjectively abusive to the person affected; and objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.

Whether an instance or a pattern of harassing conduct is severe or pervasive is determined on a case-by-case basis, with consideration paid to the following factors: the frequency of the unwelcome discriminatory conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating, or a mere offensive utterance; whether the conduct unreasonably interfered with work performance; the effect on the employee’s psychological well-being; and whether the harasser was a superior within the organization.

Hostile work environment cases are often difficult to recognize, because the particular facts of each situation determine whether offensive conduct has crossed the line from “ordinary tribulations of the workplace, such as the sporadic use of abusive language… and occasional teasing” to unlawful harassment.

What You Can Do to Limit Harassing Conduct

The most effective way to limit harassing conduct is to treat it as misconduct, even if it does not rise to the level of harassment actionable under the law. The goal of any workplace policy is to eliminate harassment before it becomes severe and pervasive enough to violate the law. A well constructed and well-implemented plan within an organization may stop inappropriate conduct before it creates a problem for individual employees or the company. Below is a list of steps you can take right now to ensure your company is compliant with harassment laws, as well as making it easy for employees to report incidents without fear of retribution.

1) Make sure your policy is up to date and that all employees have reviewed it, acknowledged it (via document signature), and are aware of any updates or changes to the policy as soon as they occur. Update and reissue the policy statement every year, and provide training every year. Obtain a signed acknowledgment form from every attendee indicating she understands the company policy against harassment and retain signed acknowledgments in employment files stored in the human resources department.

2) Provide ongoing training for managers and employees. An effective presentation is made up of three pieces: a review of the basics, real world harassment scenarios and a chance for participants to interact and share their ideas. Even if you feel like your participants have of a good grasp on harassment basics, it’s important to build your presentation around familiar terms and concepts. Never forget to cover things like the definitions of quid pro quo, hostile work environment, retaliation and other well-known harassment terminology. For most supervisory employees this will be review. The key is to give them a chance to apply their knowledge.

See more at How to Design an Engaging Workplace Harassment Training.

3) Establish a variety of reporting channels, such as an anonymous 1-800 number, a form on your employee portal, or a generic email address like hr@companyx.com that makes it easy and provides employees an opportunity to feel more comfortable to talk to HR about the harassment that is happening, whether it’s to them or someone they know in the workplace.

4) All complaints should be investigated thoroughly, providing a standardized process for the person filing the complaint to follow up, even if the complaint is made anonymously. Management must take prompt, remedial action to investigate and eliminate any harassing conduct. Note that several litigated harassment claims include allegations that an employer sat on a complaint without fully investigating it. All information should be maintained on a confidential basis to the greatest extent possible.

5) Investigation records should be kept and quarterly reviews should take place to determine if a pattern of behavior or harassment exists. From SHRM: “If an investigation results in a finding that this policy has been violated, the mandatory minimum discipline is a written reprimand. The discipline for very serious or repeat violations is termination of employment. Persons who violate this policy may also be subject to civil damages or criminal penalties.”

6) Don’t forget harassment outside of work. In the age of digital and social media, harassment can happen on social media platforms. The U.S. Equal Employment Opportunity Commission (EEOC) recommends that workplace anti-harassment policies incorporate dealing with social media. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As a result, the EEOC found that “harassment should be in employers’ minds as they draft social media policies and, conversely, social media issues should be in employers’ minds as they draft anti-harassment policies.”

7) Use your background screening process to help spot possible offenders during the hiring process. While criminal history searches will identify known criminal offenses, there are also other ways to help uncover potential risk. Consider adding employment verifications, reference checks, professional credential checks and social media searches to your current background screening program.

Employment Verifications can help uncover whether the candidate has ever been released for harassment in the past. Reference checks provide you with subjective information about an applicant. If there have been problems with harassment in the past, it will likely continue. Should the candidate’s position require a license(s), then a check of the license(s) may identify previously identified violations and/or sanctions

In addition, Social Media searches can also help companies who are concerned with harassment and mitigating risk. A combination of artificial intelligence, machine learning, and human-based quality assurance automatically highlights red flags in your candidate’s social media activity which may reference aggressive or violent acts, bigotry, unlawful activity, illegal drugs, discriminatory or sexually explicit activity, or any “custom risk” you feel may have a negative impact.

Note that this post is intended to provide resources and information; it should not be construed as a legal document, nor has it been reviewed by legal counsel. Employers should review federal and state anti-harassment provisions before implementing any new anti-harassment policy.

Summary of Final Regulations Clarifying and Expanding New York City “Ban the Box” Law, Effective August 5, 2017

New York City has imposed its own “ban the box” law, the Fair Chance Act (FCA), and associated set of regulations on employers, which took effect on October 27, 2015. Recently New York City has issued the final guidelines, effective August 5, 2017, regarding how employers should be conforming to this law. The final regulations expand on and clarify the already burdensome requirements of the FCA, making it more difficult for New York City employers, and national employers doing business in New York City, to screen applicants whose criminal history may affect their ability to do their job or present an unreasonable risk to their business, customers or employees.

Given the large population of Cisive’s New York City clients and hiring conduct in New York City, we thought it important that we post a summary of the key provisions of the final regulations.

Click here to review an excellent summary of the regulations and the recent guidance that was put together by Stephen A. Fuchs of Littler Mendelson, P.C., the largest global employment and labor law practice. According to Fuchs, “Employers with a consolidated hiring process used in multiple jurisdictions in particular should carefully review the final regulations to ensure that their process does not constitute a per se violation of the FCA.”

Below is a list of the topics covered in-depth in the summary:

  • Clarification on Per Se Violations
  • Employers Cannot Consider Non-Convictions
  • Pending Criminal Charges Cannot be Considered Prior to a Conditional Offer
  • Guidance Regarding Inadvertent or Unsolicited Disclosure of Criminal History Prior to Conditional Offer
  • Additional Steps Must be Taken Before Withdrawing a Conditional Offer
  • Provisions Relating to Temporary Help Firms
  • Rebuttable Presumption That a Conditional Offer Was Withdrawn Because of Criminal History
  • Enforcement Initiatives
  • Compliance Recommendations for Employers

New EEOC Guidance on Workplace Harassment Prevention

The EEOC says an alarming percent of the thousands of charges it receives annually now include harassment allegations which generate a lot of litigation. Charges of harassment come at a steep cost for employers. According to the EEOC, the Commission resolved 28,642 harassment allegations in 2015. Of those, 5,518 charges were resolved in favor of the charging party resulting in $125.5 million in fines for the employers. In light of these findings, the EEOC has taken steps to help both workers and managers handle the problem.

EEOC 2015 Statistics in the Private Sector

  • 27,893 charges received (31%) alleged harassment
  • 28,642 charges resolved (31%) alleged harassment
  • $125.5 million secured for employees alleging harassment in EEOC’s pre-litigation process
  • 33 lawsuits filed by EEOC (23% of all suits filed) alleged harassment
  • 42 lawsuits resolved by EEOC (27% of all suits resolved) alleged harassment
  • $39 million in monetary benefits secured for employees in EEOC lawsuits involving harassment

The EEOC has created a strong guidance on the best ways to prevent harassment in the workplace. The guidance includes four checklists that the EEOC urges employers to use to prevent harassment. Some of the highlights of the guidance include:

Leadership & accountability

  • A prevention effort that is supported with resources at the highest levels of the organization.
  • Time that is allocated by leadership for a harassment prevention effort.
  • A harassment prevention policy that is easy to understand.
  • Surveys to assess whether your employees have felt harassed.
  • Bystander intervention training that empowers co-workers to intervene when they witness harassment.
  • Civility training to promote acceptable conduct rather than just focusing on “what not to do.”

Anti-harassment policy

  • A clear description of prohibited conduct, with examples.
  • A clear description of your reporting system and the multiple avenues to report harassment.
  • Statements that individual names will be kept confidential to the extent possible.
  • Assurances that those who report misconduct, or act as witnesses to it, will be protected from retaliation.

Reporting & investigations

  • Managers who take reports of harassment seriously.
  • An environment in which people feel safe reporting behavior.
  • Well-trained investigators, who document all the steps they take.
  • Procedures (like follow-ups) to determine if individuals who report harassment experience retaliation.
  • Systems to ensure alleged harassers are not presumed guilty until it is determined that harassment occurred.
  • Communication of the findings of the investigation to all parties and, if appropriate, pending discipline.

Compliance training

  • Regularly repeated training.
  • Training provided to all employees at every level of the organization.
  • Qualified, live & interactive trainers.
  • Examples of harassment tailored to your organization and employees.
  • Simple terms that describe your reporting process.
  • Clear explanations of the consequences of harassment.
  • Instructions on how managers can report harassment up the ladder.

To view the 95-page report from the EEOC, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace,” click here.

State Developments: Newly Enacted Background Check Legislation

STATE DEVELOPMENTS – Below is a listing of newly enacted background check legislation:

  • ArizonaB. 2247: Requires each person who applies for a school bus driver certificate to submit an identity verified fingerprint card. H.B. 2196: Includes criminal background check provisions for applicants and employees of residential care institutions. S.B. 1380: Amends criminal background screening requirements for individuals who apply for child welfare agency licensing.
  • ArkansasB. 1440: Amends criminal background check requirements for paid canvassers. H.B. 2000: Requires employers to provide employees or applicants of employment a copy of their background check upon request;
  • IowaF. 419: Requires criminal history background check requirements for applicants for nursing licenses. H.F. 547: Requires temporary staffing agencies to conduct background investigations of employees staffing health care providers ;
  • MontanaB. 362: Prohibits the licensing board from disseminating criminal history information across state lines;
  • North DakotaB. 1097: Requires a criminal background screening for applicants of nursing licenses;
  • OklahomaB. 1448: Requires applicants for an original chiropractic license to undergo a national criminal background check; and
  • West VirginiaB. 386: Requires criminal history background checks for those who work, volunteer, or operate medical marijuana dispensaries.

 

Important New Ruling on Race Discrimination Class Action Involving Criminal Background Checks

In a class action alleging that the criminal background policy of Washington Metro Area Transit Authority (WMATA) had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer’s workforce being 75% African-American. The ruling is a “must read” for employers that conduct criminal background screens in their hiring process.

This lawsuit against the WMATA and three of its contractors alleged that, while criminal background information can be a legitimate tool for employers to screen job applicants, WMATA’s background check policy is overly broad and unnecessarily punitive. The suit further alleged that WMATA’s policy goes far beyond any legitimate public safety concerns to permanently stigmatize and bar from employment well-qualified individuals, a disproportionate number of whom are African Americans. For example, under WMATA’s policy, a person who has ever had a felony conviction for drug possession is permanently disqualified from employment in a wide range of jobs, including bus operator and custodian, even if the applicant has been drug-free and held a steady job for ten to 20 years.

WMATA argued that the policy was adopted as a business necessity to govern how and when individuals with criminal convictions can be employed with WMATA and its contractors.

One of the Plaintiffs, Erick Little, who was employed as a bus driver by Ride-On in Montgomery County, was denied a job as a WMATA bus operator based on a 26-year-old conviction for drug possession committed when he was 19 years old (for which he served six months in a work release center and 12 months of probation).

Another Plaintiff, Lawrence Whitted, was fired from his job as a MetroAccess driver for a WMATA contractor, even though he had performed the job successfully for more than five years, based on a drug-related conviction from 1989, which he had disclosed when he initially applied for the job.

According to the Plaintiffs, WMATA’s policy violates federal and local anti discrimination laws, including Title VII of the Civil Rights Act of 1964, because it has resulted in the firing of many employees and disqualification of many qualified job applicants with a wide range of criminal convictions, with insufficient consideration whether the convictions occurred many years in the past or have any relationship to the job at hand.

The ruling, as explained by Seyfarth Shaw LLP, can be found here. The bottom line, is that the court granted in part “Plaintiffs’ motion for class certification and certified three classes under Rule 23(b)(2) and Rule 23(c)(4) with respect to liability and the availability of injunctive relief.”

There is a lesson here for employers. The ruling puts employers on notice that even if the majority of your workforce is part of a protected class, an employer’s hiring policies can still be considered to have a disparate impact on that class for purposes of Rule 23 class certification. Therefore, it’s important to ensure that your hiring policies are neutrally applied and reviewed with counsel.

 Little et al., v. Washington Metropolitan Area Transit Authority et al.

Philadelphia’s Wage Equity Bill Goes Into Effect on May 23, 2017

Philadelphia is the first city in the nation that prohibits employers from asking about a job applicant’s prior earnings. In an effort to create a bridge to the gender pay gap, Mayor Kenney signed the Wage Equity Bill which applies to both public and private companies. The law goes into effective on May 23, 2017.

The Wage Equity Bill would add Section 9-1131 to the City’s Fair Practices Ordinance.

Supporters contend that since women have historically been paid less than men, the practice of asking for a salary history can help perpetuate a cycle of lower salaries for women, continuing throughout their careers.

Women in Pennsylvania are paid 79 cents for every dollar a man earns, according to a 2015 Census Bureau report. For black and Hispanic women, the pay gap is even wider.

Key provisions are:

  • It is an unlawful employment practice for an employer, employment agency, or employee or agent thereof to:
    • Inquire about a prospective employee’s wage history, require disclosure of wage history, or condition employment or consideration for an interview or employment on disclosure of wage history, or retaliate against a prospective employee for failing to comply with any wage history inquiry or for otherwise opposing any act made unlawful by this Chapter.
    • Rely on the wage history of a prospective employee from any current or former employer of the individual in determining the wages for such individual at any stage in the employment process, including the negotiation or drafting of any employment contract, unless such applicant knowingly and willingly disclosed his or her wage history to the employer, employment agency, employee or agent thereof.
  • This subsection shall not apply to any actions taken by an employer, employment agency, or employee, or agent thereof, pursuant to any federal, state, or local law that specifically authorizes the disclosure or verification of wage history for employment purposes.
  •  For the purposes of this Section,  “to inquire” shall mean to ask a job applicant in writing or otherwise, and “wages” shall mean all earnings of an employee, regardless of whether determined on time, task piece, commission or other method of calculation and including fringe benefits, wage supplements, or other compensation whether payable by the employer from employer funds or from amounts withheld from the employee’s pay by the employer.

The law also includes a posting requirement, for which the City has not yet provided a poster, but plans to do so in advance of the May 23rd effective date.

Recommended Actions

Review job applications and remove any wage history questions.

Review your hiring and interview policies and processes. Revise them to eliminate inquiry into wage history at any stage in the employment process.

Train all individuals involved in recruitment, hiring, interviewing, and drafting and contract negotiation to comply with the requirements of this law.

 

Sweeping immigration law changes are coming! Know your responsibility as an employer.

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All indications are that the new President’s key initiatives will include sweeping changes in immigration. According to immigration law, employers have certain responsibilities during the hiring and background screening processes. Federal law requires that every employer who “recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9 Employment Eligibility Verification,” according to the Department of Homeland Security (DHS).

It’s time to review your I-9 program and ensure it is compliant. Here’s why.

  • Monetary penalties for knowingly hiring and employing undocumented workers can be up to $16,000 per violation.
  • Penalties for technical violations, including failing to produce a Form I-9, can be up to $1,100 per violation.
  • Criminal penalties can be up to 6 months in prison for engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens.

Immigration and Customs Enforcement’s (ICE) audits are serious. In 2015, Hartmann Studios was hit with the largest fine ever ordered$605,250 – for more than 800 I-9 paperwork violations. Most of the violations were due to repeated failure to sign section 2 of the I-9 form. Employers need to have an audit proof process to ensure forms are properly completed and retained.

As part of our Onboarding Solution, CARCO can facilitate an electronic Form I-9 process (using e-signature technology) AND complete the E-Verify process through an interface with the DHS. The results of this process are available to clients within seconds. The employee’s I-9, along with the supporting documents, are then stored in compliance with ICE requirements.

In addition to the mechanics of providing the documents, CARCO’s I-9 solution allows its clients to achieve a far higher level of compliance than would otherwise be possible by having e-mail reminders, reporting, and e-mail escalation notices if these tasks are not complete.

Now is a good time to review your I-9 process with a CARCO Specialist to ensure compliance. Contact us a 1-866-557-5984 or click here to receive more information.

Don’t forget that the new Form I-9 must be used starting January 21, 2017.

 

 

NEW DOJ/FTC ANTITRUST GUIDANCE FOR HR PROFESSIONALS

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The Department of Justice and the Federal Trade Commission recently published a Guide to alert HR professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws.

This is a must read for all HR professionals as the DOJ has sued several companies for violations. The guidance discusses in detail:

  • Antitrust laws establish the rules of a competitive employment marketplace
  • Agreements among employers not to recruit certain employees or not to compete on terms of compensation are illegal.
  • Avoid sharing sensitive information with competitors

The Antitrust Guidance also contains a Questions and Answers section. Below is a sample of what this section covers.

    Question: I work as an HR professional in an industry where we spend a lot of money to recruit and train new employees. At a trade show, I mentioned how frustrated I get when a recent hire jumps ship to work at a competitor. A colleague at a competing firm suggested that we deal with this problem by agreeing not to recruit or hire each other’s employees. She mentioned that her company had entered into these kinds of agreements in the past, and they seemed to work. What should I do?

    Answer: What that colleague is suggesting is a no-poaching agreement. That suggestion amounts to a solicitation to engage in serious criminal conduct. You should refuse her suggestion and consider contacting the Antitrust Division’s Citizen Complaint Center or the Federal Trade Commission’s Bureau of Competition to report the behavior of your colleague’s company. If you agree not to recruit or hire each other’s employees, you would likely be exposing yourself and your employer to substantial criminal and civil liability.

Click here to read the Antitrust Guidance.

It has always been CARCO’s mantra that Compliance is KEY in every aspect of your hiring process.

To learn how CARCO keeps your hiring process compliant in every way, click here or speak to a CARCO Specialist at 1-866-557-5984.

 

Massachusetts’ New Pay Equity Law is a Milestone in Closing the Gender Wage Gap

Law book   As of July 1, 2018, Massachusetts’ new pay equity law will prohibit employers from asking job applicants to disclose their wage and salary history on job applications.

According to the law, all public and private employers are prohibited from discriminating in any way on the basis of gender in the payment of wages or paying any employee a salary or wage rate less than the rates paid to their employees of a different gender for comparable work. The new law also prohibits Massachusetts employers from barring employees to discuss their salaries with each other.

According to the U.S. Census Bureau, women earn 70 cents for every dollar earned by men. By using salary history on job applications as a guideline for pay, this inequity has a tendency to follow workers throughout their professional lifetime.

Other states, such as Maryland and California, have similar legislation focused on reducing pay inequity and salary secrecy. However, according to Karim Fadel of Boston-based Unison Realty Partners, the key difference in the Massachusetts law is, “Instead of tackling the consequences of unequal pay, the Massachusetts law will focus on making equal pay for equal work the gold standard from the moment a prospective employee walks in the door.”

Companies are now required to post a minimum salary in job ads and pay any hire at least that amount. It should be noted that employers will be able to ask an applicant what he or she “hopes to earn” in the new position.  However, that practice might be open to interpretation in a court of law.

The new law lengthens the time an employee has to bring a pay discrimination suit from one to three years and allows for the awarding of attorneys’ fees. It also clarifies that analysis of “comparable” work must be based on skill, effort, responsibility and working conditions. An employer is allowed to defend itself against gender discrimination claims if the company conducts a self-evaluation of workplace job classifications and wage rates.

Wage differentials are permitted based on:

  • A seniority system,
  • A merit system,
  • A system that measures earnings by quantity or quality of production or sales,
  • Geographic locations in which a job is performed,
  • Education, training or experience to the extent such factors are reasonably related to the particular job in question, and
  • Travel, if it is a regular and necessary condition of the particular job.

The new law expands the existing groundbreaking pay equality law that was enacted in Massachusetts in 1945.

All employers should take note and prepare for this law to become an issue in their state. It is expected that many states as well as the U.S. Congress will adopt similar laws within the next two to five years.