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For several years California and a few other states have operated employee tracking programs for selected industries in an effort to improve debt collection from "deadbeat parents."
By October 1, 1997, all States were required to establish New Hire Reporting programs under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Prior to that date, 26 states had some form of New Hire Reporting. Those with existing data collection programs have until October 1, 1998 to make all aspects of their program conform with the minimum Federal requirements of PRWORA.
Effective July 1, 1998, an expanded program will go into effect in California which will involve ALL employers. The purpose of the new program, motivated by federal legislation, is the same ... to increase collection of child support debts and reduce public funding of children and former spouses.
In California, employers must report information about newly hired employees to the state registry. They will be matched against child support records to help locate parents and establish a wage withholding order or enforce an existing order. Registry information will also be sent to the new National Directory of New Hires to locate delinquent debtors in other states. According to government figures, nearly thirty percent of child support cases involve parents who do not live in the same state as their children.
Under the new law:
- All employers must report.
- All new hires must be reported.
- New hires must be reported within 20 days of their start-of-work date. (The old program allowed 30 days for reporting.)
- Employers filing magnetically must report by two monthly transmissions.
The state has created a new form for the reporting of new employees. It is designated "Report of New Employee(s), Form DE 34."
Information which must be reported on the new form includes:
- Employee's full name, address, Social Security Number, and start-of-work date.
- Employer's name, address, state employer account number, and Federal Employer Identification Number (FEIN).
As an alternative to the new DE 34 form, employers may send copies of new employees' W-4 form ask long as the employee's start-of-work date and the state employer account number are indicated on the W-4. Employers who report via magnetic media are being issued special instructions by state employment agencies.
There will be no reporting exemptions for employers under this new program.
For more information contact your local office of the state employment agency. In California, copies of the DE 34 form and its instructions may be obtained from:
Employment Development Department, P.O. Box 997016, MIC 23, West Sacramento, California, 95799-7016. If you would like to ask questions about California's effort, call 916-657-0529, the New Employee Registry Hotline.
by Rebecca D. Kleinman, Esq.
(A situation affecting many employers today involves dealing with uncooperative employees during the course of an internal investigation. Ms. Rebecca Kleinman has some specific advice for employers who are in a non-union environment. This article first appeared in the "HR Bulletin" of the Northern California Human Resource Council and is reprinted here with permission. - Editor)
Human resources professionals who conduct internal investigations (such as those involving complaints of sexual harassment or discrimination) navigate tough issues in a challenging environment. One of the difficulties occurring with increasing frequency is dealing with the reluctant employee who refuses to cooperate during an internal investigation.
When an employee refuses to meet with the investigator, or places conditions on an interview (such as the employee will only agree to meet with his or her attorney present) the employer must consider how to handle the uncooperative employee.
(This article addresses non-unionized workforces - only those situations where an employee's rights under a collective bargaining agreement and/or under federal "traditional" labor law are not implicated.)
"I Will Not Meet With You And You Cannot Force Me To"
When an employee refuses to cooperate during an investigation, the human resources professional must determine how critical it is that the employee be interviewed about the matter. The law generally requires that investigations be "adequate," the sufficiency of which is almost always attacked by the complainant or the accused, particularly if the complainant feels that measures taken were inadequate or the accused is disciplined or terminated as a result of the investigation. If you do not meet with an employee who is later determined to be a critical witness, your entire investigation may be attacked and could provide a separate basis for liability against your company.
The situation becomes even more challenging if the complainant has filed a lawsuit and his or her attorney plans to depose an employee who refused to meet with you during the internal investigation. If you do not meet with the employee, you may have no idea prior to the deposition what that employee might say. The employee may have knowledge of facts which could have altered your findings or the action taken. The employee may have exculpatory or damaging information, about which you will be unaware until the deposition.
Can An Employee Refuse To Cooperate?
In general, no. An employee has a duty of undivided loyalty to his or her employer. Janken v. G.M. Hughes Electronics (1996) 46 Cal. App. 4th 55. The duty of loyalty has been held to require an employee to cooperate in an investigation undertaken by an employer and to require that she or he meet with the employer and/or its attorneys.
For example, in the case of Maness v. Star-Kist Foods, Inc. (8th Cir. 1993) 7 F3d 104, the court held that termination of an employee who refused to meet with the employer and its legal counsel in connection with a discrimination action was appropriate.
An employer may require its employee to cooperate in an investigation and to meet with the investigator. However the company must make sure it does not attempt to coerce the employee to testify a given way. (See, for example, Smith v. Columbus Metropolitan Housing Authority [S.D. Ohio 1977] 443 F.Supp. 61)
All of the well intentioned legal advice in the world should not ignore the realities of the workplace. If an employee refuses to meet with company representatives, and is threatened with discipline if she or he fails to cooperate in the investigation, the employee may claim the company is: 1) attempting to coerce favorable testimony and/or 2) is retaliating against the employee and/or the complainant. You'll then have two additional complaints, and a second complainant. Welcome to the unmitigated thrill of the uncooperative employee.
If you decide that a meeting with a particular employee is essential to an adequate investigation, and the employee refuses to meet with you, you should confirm, in a written document given to the employee, the following:
- You have made numerous attempts to speak with the employee about an important issue which the company takes seriously.
- The employee refused to speak to you and/or your legal counsel.
- An important part of the employee's job is loyalty to the company and, therefore, cooperation is required, not optional.
- The investigator is only interested in determining the truth of the matter, good or bad, even if the employee will be providing negative information adverse to the company.
- Your company has a not retaliation policy which prohibits retaliation against employees who cooperate in internal investigations.
- If retaliation occurs, it should be brought to your attention immediately.
The punch line of this written communication should be that, if the employee will not meet with you or your company's legal counsel, then the employee will be subject to discipline up to and including termination for insubordination and breach of his or her duty of loyalty. If you intend to terminate the employee, you should specifically state that disciplinary action will include termination of employment. Give the employee a chance to reconsider.
"I Will Not Meet With Anyone Without My Attorney Present"
An employee may attempt to place conditions on meetings during internal investigations. Sometimes the employee will agree to meet with an employer during an investigation only if his or her attorney is present. The attendance of an attorney presents a host of problems. The attorney may (and probably will) interfere with the questioning. She or he will likely try to use the meeting as an information gathering tool.
Many companies have policies which preclude employees from bringing an attorney to an investigative interview - such policies are well advised and should be adhered to. In fact, one California Court of Appeal has determined that it is not a violation of public policy for an employer to demand that an employee meet with the employer without the presence of an attorney during an investigation of that employee's alleged misconduct. TRW, Inc. v. Superior Court (1994) 25 Cal. App. 4th 1834, 1849, 1852-53). The TRW Court also noted that the employee could be terminated for insubordination for refusing to cooperate in the investigation, including the refusal to meet with the employer without the presence of his attorney.
It is important to note, however, that the TRW case does not discuss the ethical issues involved where the employee is represented by an attorney. If an attorney is either conducting or directing the investigation for the employer, Rule 2-100 of the California Rules of Professional Conduct states it is not permissible for an employer to have an attorney meet with a party known to be represented by counsel regarding the subject of the representation, i.e., the investigation, without the attorney present. Accordingly, although the employer may discipline and possibly even terminate employees for refusing to meet or cooperate in an investigation without the presence of their legal counsel, employers' attorneys may run afoul of ethical rules if they meet with an employee without the employee's attorney present.
One approach is to meet with the employee and the employee's counsel with the company's counsel also present. Although such a meeting may make the investigation more difficult, it will avoid the possibility of an ethical violation. It will help you get the information you need. It will also make all attendees, including the attorneys, potential fact witnesses should litigation ensue. It is a means to gather needed information while accommodating competing interests.
If you encounter employees who won't speak to you, remind them that it is their workplace that you are there to investigate. Without cooperation, your hands are tied.
Rebecca D. Kleinman is in private practice as a specialist in labor/management issues. She is both a counselor to employers and litigator. Ms. Kleinman is a member of the State Bar of California, the Northern California HR Council, SHRM and ACCA among other professional organizations. She can be reached at 415-334-8811. We thank her for her contribution here.
For a long time it has been thought an advantage to have an attorney conduct internal investigations of discrimination complaints. Why? Because an attorney's notes of the investigation may be protected under attorney-client privilege or under the attorney work-product doctrine.
Well, a California appellate court has ruled that employers may not assume such privilege when they use an internal investigation as part of their defense against a law suit on the discrimination complaint.
The case was Wellpoint Health Networks, Inc. v. Superior, 1997 Cal. App. LEXIS 921 (Nov. 13, 1997).
The complainant demanded his former employer, Blue Cross of California, produce his complete personnel file as part of discovery on his suit for wrongful failure to promote and retaliation. California's Labor Code (Section 1198.5) gives employees the right to see the contents of their personnel files under certain conditions. In this situation, the personnel file contained a copy of the internal complaint investigation report which was prepared by a company attorney. The company objected to releasing the personnel file contents because it contained the investigation report which it claimed was protected from discovery under the attorney-client privilege and the attorney work-product doctrine.
The court of appeal ruled that the attorney's notes were privileged. It rejected the complainant's claim that an internal investigation places employer attorneys in a non-attorney role. It said, in this case, the attorney was acting in an attorney role during the investigation.
Of particular interest was the court's ruling that said an employee's right to see his personnel file does not override the attorney-client privilege and the attorney work-product doctrine.
Then, the proverbial bomb dropped. The court finally said, even privileged documents may be discoverable if the privilege is waived. In this situation, the employer waived its privilege when it held up the investigation as a defense against the discrimination charges.
"If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived."
In response to this finding, one major employment law firm has suggested, "Considering the serious implication that a waiver of privilege can have, employers may be well advised to use non-lawyer investigators ..." It just won't do for a defense lawyer to testify as the investigator. Call us. We investigate discrimination complaints, and offer expert witness case support to employers.
Just a reminder to all California employers that the federal minimum wage of $5.15 per hour, effective since September 1, 1997 will be increasing.
Mark your calendars now so you don't forget to implement the change on payroll. Effective March 1, 1998, state law will raise the minimum wage for California workers to $5.75 per hour.
In our "Special Report for HR Professionals #24" on January 16, 1998, we told you about the December release of the EEOC's report. Called the Best Practices Task Force, the group was led by Commissioner Reginald E. Jones.
You can find the Task Force report and executive summary by pointing your web browser to: http://www.eeoc.gov/task/
The report included analysis of employer submissions on the subjects of:
- Recruiting & Hiring
- Promotion & Career Guidance
- Terms & Conditions of Employment
- Termination & Downsizing
- Alternative Dispute Resolution
- Other Best Practices
The Task Force also recognized certain employers for their management commitment and accountability. Still others were recognized for their participation in partnership programs with community organizations to further employment interests of minorities and women.
In the next few issues, we will be highlighting some of those honored companies.
Listed in the EEOC's report from its Best Practices Task Force are several organizations which rose to the top for their programs to recruit and hire in nondiscriminatory ways. Here are some of those special efforts.
Armstrong World Industries, Inc.
Lancaster, PA
Lancaster Partnership Program with focus on dropout prevention, scholarships for education, and internship programs. Corporate Mentoring Program to work with the students in an effort to identify, recruit, and hire qualified candidates.
INROADS
The Dial Corporation
Scottsdale, AZ
Summer Intern Program brings highly qualified graduate students, including women and minorities, into departments for well-paid, hands-on training on a variety of the company's processes. Interns do valuable work, and are provided formal training in business skills as well as on-the-job training opportunity. Many interns are hired following their graduation.
GTE Telephone Operations
Irving, TX
Developed a Professional Recruitment Strategy, a comprehensive multifaceted plan. Needs assessment is done annually.
In-house recruiters attend career fairs, visit military bases and make monthly reports of progress and results. Bonuses are paid for successful referrals that result in hire.
Internal Business Machines
(IBM) Tarrytown, NY
Project View, one aspect of IBM's recruitment program, focuses on diverse recruiting results. It is a national effort to reach outstanding African American, Hispanic, and Native American graduates with BS, MS, and Ph.D. degrees, and generates 55% of the company's minority hires directly from college. The program's three-day format is a combination of networking, career fair, and interviewing. Of 600 students who were to graduate between August 1996 and August 1997, 40% of the interviews resulted in on-the-spot job offers.
Lexmark International, Inc.
Lexington, KY
Partnership with National Society of Black Engineers and Society of Women Engineers to discuss recruiting opportunities as well as participate in local, regional, and national events.
The MITRE Corporation
McLean, VA
Willing to adjust work schedules to encourage minorities and women, who currently may not be in the workforce, to expand employment opportunities. College Outreach Programs. Participates in INROADS. Industrial Advisory Program at the University of Puerto Rico in Mayaguez to increase Hispanic participation in summer intern and regular co-op assignments. Advancing Minorities' Interest in Engineering (AMIE) program to increase the numbers of minority engineers in American workforce. Work/study program. Graduate educational opportunities for minorities (GEM Program).
Motorola
Shaumburg, IL
Uses internal recruiters and external search firms, and both are required to present diverse candidate pools. Supports the television broadcasts of two Engineer of the Year programs (Black, Hispanic). Company's internship program includes Minority Scholarship Investment Program (MSIIP), offering summer internships to sophomores and juniors in engineering and finance.
Pacific Telesis Group
San Ramon, CA
Summer Internship Program for high-caliber college students within a year or two of graduation, which places them in paid management positions. Participates in the Industry Initiatives for Science & Math Education Summer Fellowship Hires Program. Uses non-salaried placement centers, which focus on outreach for minority and/or women applicants, and applicants for non-traditional occupations.
Procter and Gamble
Cincinnati, OH
Supports individuals who head up minority programs in Engineering and Business. Supports an array of minority and women's organizations.
Invests in efforts which expand pipeline by attracting a greater proportion of talented minority students to engineering and scientific studies. Collaborative efforts with educators to increase motivation and preparation of minority students to go to college and obtain degrees in mathematics, science, and engineering. Major corporate supporter of United Negro College Fund.
Turner Construction Company
Cleveland, OH
Puts effort into developing a future recruitment resource pool through its YouthForce 2000 activity, which includes a Mentor/Prodigy Program, strong relationships with Junior and High School guidance counselors, a Summer Internship Program, and a Turner Speakers Bureau. Company offers summer scholarships through INROADS.
It is just as important to keep up with changing state laws as it is to be aware of federal requirements. This is especially true if you happen to operate in multi-state territories. We have selected some state changes in 1997 that affect equal employment opportunity protections for employees. This list is not all inclusive. Please be sure to discuss your specific requirements with your employee management attorney.
Alabama created new Age Discrimination Law to protect employees & allow damages. (Effective 8-1-97)
Arizona changed its Civil Rights Act to prohibit discrimination based on genetic test results. Created new Genetic Testing Law prohibiting employers from requiring those tests without written informed consent. And a new Constructive Discharge Law helps workers who are forced to resign because of working conditions. (Effective 7-21-97)
Arkansas has a new Parental Leave for School Visitation Law allowing employees to have unpaid time off to attend parent-teacher conferences or their children's performances. (Effective 8-1-97)
California now allows mothers to breast-feed in public or in private. It also applied its Parental Leave Law for School Visits to licensed day-care school activities. (Effective 1-1-98)
Florida passed a Sexual Harassment Discrimination Rule defining sexual harassment and setting complaint procedures. (Effective 5-1-97)
Hawaii amended its Family Leave Act so employees can have up to four weeks of family leave for a "reciprocal beneficiary." Health care facilities can now consider criminal conviction records of job applicants if they would be working with patients. (Effective 7-1-97)
Illinois provided confidentiality of genetic tests with new Genetic Information Privacy Act. (Effective 6-23-97)
Louisiana extended its Sickle Cell Trait Discrimination in Employment law to employers with 20 or more workers. (Effective 8-1-97)
Maine now prohibits employment discrimination based on sexual orientation. (Effective 8-30-97) Amended Commission Employment Regulations to extend pregnancy benefits to employers with 15 or fewer workers. (Effective 6-14-97)
Minnesota implemented a prohibition against reprisal for filing a discrimination complaint. (Effective 8-1-97)
New Hampshire prohibits employment discrimination based on sexual orientation. (Effective 1-1-98)
North Carolina created a Genetic Testing Law prohibiting employment discrimination based on genetic testing and genetic information. (Effective 8-1-97)
North Dakota employers no longer have to post copies of the Equal Pay Act. (Effective 8-1-97)
Oregon employers now include "any public body" under the state's Fair Employment Practices Act. (Effective 10-4-97)
Rhode Island instituted a new requirement that employers with 50 or more workers have a written sexual harassment policy. (Effective 7-3-97)
Texas made several changes last year. It now prohibits employment discrimination because of genetic testing and genetic test information. (Effective 9-1-97) And, there is a new State Employees' Parent-Teacher Conference Leave statute which allows state employees to use up to 8 hours of sick leave each year to attend parent-teacher conferences. (Effective 9-1-97)
Utah now allows the use of sick leave for paternity care. (Effective 8-15-97)
Virginia added prohibitions against employment discrimination based on pregnancy, childbirth, or related medical conditions to its state laws. (Effective 7-1-97)
Those are some of the key provisions of a few states brought to us by our state legislators.
Be sure you know what changes have occurred in your state(s) regarding equal employment opportunity. There is no protection from penalty because you didn't know. It is a good idea to get a legal update briefing from your employee management attorney at the beginning of each calendar year. If you make a habit of that type of briefing session, you will find you don't miss the new obligations which may have come your way. While you're at it, consider expanding the briefing to include key case-law changes which your attorney can tell you about. How we manage our employees today is vastly different from how it was done years ago. Our challenge is to keep pace with those changing requirements. As HR Professionals we must accept that responsibility. After all, it is our responsibility to keep our organizations out of trouble.
Have you seen our latest publication? Why not visit our web site to review our newest book, "How to Spot a PHONY Resume?"
This book is just off the press and can help you avoid hiring dishonest job applicants. Learn the secrets of the most successful writers of false information. Written by Wayne D. Ford, Ph.D., these 126 pages give you specific insight into techniques used by unscrupulous people that even include false identification in some cases.
- Lower your risk of negligent hiring.
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