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Passage of California's Proposition 209 on November 5th has led
many people to believe that affirmative action programs in the
state are dead and buried. Nothing could be further from the
truth.
Proposition 209 puts an end to preferential treatment based on
race and sex. It will very likely eliminate State programs which
allowed (or required) preferential treatment for minorities and
women. Set-asides and quotas (percentages of participation) for
minorities and women were sometimes required by state programs.
Those are the ones Proposition 209 will be affecting.
Employment-related affirmative action requirements are not likely
to change much, if at all, unless they contain preferential treatment
provisions. California's Office of Compliance Programs (OCP)
is housed within the Department of Fair Employment and Housing.
It enforces compliance with California's employment-related affirmative
action requirements. As a matter of fact, it doesn't even officially
refer to them as affirmative action programs, but rather, NON-DISCRIMINATION
PROGRAMS.
Proposition 209 will have no affect at all on federal affirmative
action requirements. Any organization wishing to do business
with the federal government must still prepare and implement a
written affirmative action program if it meets the threshold requirements
under federal regulations (41 CFR 60).
There are three basic conditions which can cause an employer to
be subject to federal affirmative action regulations:
- There are 50 or more employees in the establishment which
contracts with the government, an d those contracts are
worth $50,000 or more in a year.
- The organization has $1.00 or more deposited in the federal
reserve system, regardless of employee numbers. (Almost all banks
qualify.)
- The organization is an authorized transfer agent for U.S.
Savings Bonds in any amount, regardless of employee numbers.
(Many credit unions and other employers qualify.)
Meet any of these three conditions and you must have a
written affirmative action program and effectively implement it.
Sub-contractors, those providing goods and services to primary
government vendors, must also meet the AAP requirements.
Even federal affirmative action, however, is based on equal employment
opportunity laws. AAP regulations require employers to have an
EEO policy prohibiting discrimination based on race or sex among
other categories. Preferential treatment, hiring or promoting
employees because they are a certain race or a certain gender,
is discrimination under EEO law. It is prohibited also by AAP
regulations.
What good is affirmative action then? Well, since its inception,
employment related affirmative action programs have been designed
to identify untapped sources of qualified minority and female
candidates. AAP employers are required to recruit from sources
they may not have used prior to becoming AAP employers. The intent
is that candidate pools will contain a mixture of qualified people
from all races and both sexes. Then, by applying a non-discriminatory
selection process, hiring managers identify the best qualified
and make a job offer, without regard to race or sex. Affirmative
action programs only assure candidate pools are well mixed. They
do not give preferential treatment to selection from those pools.
Any preferential selection treatment is discrimination. And,
discrimination is illegal.
People are sometimes confused about race discrimination, believing
that only minorities are protected under the law. The truth is,
we all have a race. We are all protected against race discrimination.
If a White male is told he will not be hired because he is White,
therein lies race discrimination.
Employers should be cautioned to guard against mistaken beliefs
that they no longer must comply with affirmative action requirements.
Such is not the case. In doing so, they could be jeopardizing
their revenues from federal contracts. And, an unpleasant experience
in a compliance review is not the way to have that errant belief
corrected.
Human Resources Managers should initiate communications to their
employees, especially management employees. People need to know
that these recent changes will be affecting parts of affirmative
action programs other than those required of employers.
There is one way to escape the need for employment-related affirmative
action in your organization...Don't contract with the government.
That is the basic business decision which organizational leaders
get to make. If an employer elects to receive revenue from federal
contracts, it must be willing to meet federal regulatory requirements
for affirmative action programs. To do otherwise is tantamount
to proclaiming a desire to avoid paying taxes on that revenue.
Once the decision is made to secure revenues from the government
through contracting (or sub-contracting), the obligation for affirmative
action program implementation is assumed. (And, we have to pay
taxes on those revenues.)
Regulations do change from time-to-time. Requirements employers
must meet sometimes shift. [See related article on new regulations
for Disabled and Veterans AAPs.]
If you would like to have professional help preparing or implementing
your AAP, give us a call.
New Federal Regulations for Disabled
and Veterans AAPs
Some major changes have taken place in regulation of affirmative
action programs for Disabled and Veterans.
Written affirmative action programs are required for disabled
people when the employer receives $10,000 or more in revenue during
any year from government contracts. That amount now matches the
threshold for Veterans affirmative action requirements. It is
an increase from the former $2,500 level.
Probably the biggest change, though, is in the requirement for
employers to request applicants to self-identify as disabled or
disabled veterans. In the past, many employers used one form
to gather applicant information about sex, ethnicity, disability
and veteran status. Now, using a single form can land you in
hot water.
Employers are no longer allowed to request self-identification
of disabled or veteran status before an applicant receives a job
offer. The new rule is: Contractors are required to extend
an invitation to self-identify to all applicants post-offer
but prior to employment. Contractors are permitted to invite
self-identification pre-offer in only two very limited
circumstances. (41 CFR 60-741.42)
The impact is obvious. Contractors must change the way in which
they go about requesting self-identification from applicants.
Some legal experts are suggesting that contractors would be better
off not offering a "check-the-box" form under this new
provision. Simply giving the applicant a written invitation to
self-identify is sufficient. Of course, the employer would need
a means of tracking any responses received from people who accepted
the invitation and wished to submit a self-identification.
Timing is the critical thing under the new provisions. The invitation
must be made following a job offer, but before the individual
is actually on the payroll. Some employers have decided that
applicants do not become employees until they have attended new
employee orientation and completed all of their payroll documents,
such as the W-4 form. And, since only applicants who have received
a job offer will be attending new employee orientation sessions,
the early part of those programs represents an opportunity to
extend the written invitation to self-identify as disabled or
disabled veteran or veteran of the Vietnam era. Of course, some
arrangements would have to be made for dealing with those individuals
who declined their job offers and did not attend an orientation
program.
The regulations are specific in their direction that these requests
for self-identification may not be given to applicants in general.
Pre-offer medical examinations are prohibited under the new regulations.
Employers may require medical examinations after they make a
job offer, before hiring the individual. That is, the job offer
may be contingent upon the person passing their medical examination.
The same medical examination process must be required of all
individuals who are hired into that particular job, not just those
with disabilities.
Contractors may still ask applicants if they have the ability
to perform job related functions. They may also be asked to demonstrate
their ability to perform these job functions.
Drug testing is permitted at any time. It is not considered a
medical examination. Contractors who have drug testing policies,
who must meet "drug free workplace" standards or Department
of Transportation requirements may implement those drug testing
programs without fear of complications from their affirmative
action requirements.
Separate files are now required for medical records. In
the past, employers were allowed to decide how to store information
about employees. Some elected to combine personnel files and
medical files. That is no longer permitted under these new requirements.
Medical records must now be stored separately and must be kept
confidential. "Confidential" should be taken to mean
they are only available to individuals who have a specific business
need to know the information contained in those records.
Records maintenance is also addressed by the new regulation revisions.
Examples of records which must be maintained by a contractor
include: "Requests for reasonable accommodation; the results
of any physical examination; job advertisements and postings;
applications and resumes; tests and test results; interview notes;
and other records having to do with hiring, assignment, promotion,
demotion, transfer, lay-off or termination, rates of pay or other
terms of compensation, and selection for training or apprenticeship."
Retention requirements have been split into two categories, based
on the size of the contract and the size of the contractor's workforce.
If the contractor has fewer than 150 employees or does not have
a Government contract of at least $150,000 the retention period
for these records is one year. If either of those thresholds
is surpassed, then the contractor must retain its records for
two years.
Records retention is required for the life of any discrimination
complaint or government compliance review.
In the new regulations, failure to provide reasonable accommodation
is expressly termed discrimination and is unlawful unless the
employer can show undue hardship. Undue hardship must consider
any tax credits or other offsets which might be available to help
the employer reduce its cost of accommodation.
The enforcement process has been given some teeth. New provisions
make it possible for the Office of Federal Contract Compliance
Programs (OFCCP) to debar contractors for fixed periods of time
ranging from six months to three years. The reinstatement and
appeal process allow contractors who have experienced fixed-term
debarment to request reinstatement after six months.
New regulations on handling Disabled Veterans and Veterans of
the Vietnam Era are expected to be finalized before January 1,
1997. Essentially, they will dovetail with those for handling
the disabled. The greatest impact will be in data collection
due to the required changes in extending applicants the offer
to self-identify.
Like procedures for the disabled, this must now be done for Disabled
Veterans and Veterans of the Vietnam Era after a job offer is
made, but before the person is on the payroll.
Regulations for Disabled are effective on August 29, 1996 and
implementation is required by December 27, 1996.
Both federal and California requirements have recently undergone
a shortening of time allowed for reporting cases of serious injury
or death on the job.
Now any work-connected fatality or hospitalization must be reported
to OSHA or Cal-OSHA within eight hours. If the employer can demonstrate
that urgent circumstances prevented a report from being made within
eight hours, the report may be made within 24 hours after the
incident.
OSHA defines "serious injury or illness" to mean any
injury or illness occurring in a place of employment that requires
inpatient hospitalization for a period in excess of 24 hours for
other than medical observation, or in which an employee suffers
a loss of any member of the body or suffers any serious degree
of permanent disfigurement, but does not include any injury or
illness or death caused by the commission of a Penal Code violation,
except the violation of Section 385 of the Penal Code (operation
of tools near high voltage overhead conductor), or an accident
in a public street or highway.
When making the report, an employer must give the following information:
- Time and date of accident.
- Employer's name, address and telephone number.
- Name and job title or badge number of the person reporting
the accident.
- Address of site of accident or event.
- Name of person to contact at site or accident.
- Name and address of injured employee(s).
- Nature of injury.
- Location where injured employee(s) was (were) moved to.
- List and identity of other law enforcement agencies present
at the site.
- Description of the accident and whether the accident scene
or instrumentality has been alerted.
Don't forget that one of the first things the OSHA investigator
will ask to see is your Injury and Illness Prevention Program
(IPP). Be sure you have yours handy and up to date. Training
records must also be available for inspection. Then comes the
job of investigating the specific circumstances surrounding the
incident you have just experienced.
Don't get caught without your IPP in place and current. Penalties
can go as high as $7,000 just for not having an IPP document in
your establishment.
If you have yet to write your Injury and Illness Prevention Program,
you might wish to take advantage of a publication we offer. There
are two versions available, each accompanied by a computer disk
compatible with PC word processors. The basic binder contains
background information and a sample plan for the normal office
environment. The expanded plan binder contains workplace violence
and ergonomics guidance as well. You may order by calling our
toll-free order line: 1-888-671-0404. As they say on TV, have
your credit card ready.
Material Safety Data Sheets (MSDS) began as a single page, printed
on either one or both sides. Since their inception, regulatory
changes have expanded information required on the MSDS documents
until they now require four or more pages in many cases. They
are about to get even larger.
In April last year (1996), a Los Angeles Superior Court ruled
that Cal/OSHA has exclusive jurisdiction over workplace warning
provisions of California's Proposition 65. In the case of As
You Sow v. Turco the court ruled Cal/OSHA's administrative
enforcement process must be exhausted before a plaintiff can turn
to the courts for help. In other words, people who have problems
with the content of MSDS are required to complain first to Cal/OSHA
before proceeding to court. As a result, Cal/OSHA is being forced
to establish rulings on six key issues:
- Are label warnings required for Proposition 65 chemicals contained
in products regulated under the California Hazard Communication
Standard?
- What type of warning language must be given on these labels?
- Does the MSDS provide sufficient health hazard information
pertaining to the listed chemical or chemicals?
- If a substance has been listed as a reproductive toxicant
only, may the MSDS also contain warning language about other hazards
such as carcinogenicity, irritation and other health effects?
- If the product contains a specifically listed substance, is
it sufficiently clear to use the generic Proposition 65 warning
phrase, "This product contains chemicals known to the State
of California to cause cancer, reproductive harm or birth defects?"
- If a product contains a listed substance, can the MSDS say
that the product "may contain" such a chemical?
You can assume that any changes will bring with them requirements
for employee training. Keep an ear open for these developments.
[SOURCE: "California Regwatch," California Chamber
of Commerce, 1201 K Street, 12th Flr, Sacramento, CA 95814]
In a copyrighted story on September 26, 1996, the Business Wire
reported an announcement made by IRS New England Director Francine
Crowley. In it she said employers can get a tax credit of up
to $2,100 if they hire new employees from one of seven targeted
low-income groups. The credit - generally 35% of the first $6,000
in wages - applies to employees who start work after September
30, 1996 and before October 1, 1997.
The Targeted Groups Are:
- Qualified recipients of Aid to Families with Dependent Children,
or its successor under welfare reform.
- Qualified veterans.
- Qualified ex-felons.
- High-risk youth.
- Vocational rehabilitation referrals.
- Qualified summer youth.
- Qualified food stamp recipients.
To help employers determine if a worker will make them eligible
for this tax break, the IRS has developed Form 8850, Work Opportunity
Credit Pre-Screening Notice and Certification Request. The form
is available through the IRS home page at http://www.irs.ustreas.gov
- or by calling 1-800-TAX-FORM.
Employers must get information from a job applicant about the
person's potential membership in a targeted group, and complete
Form 8850 on or before the day the job is offered. The employer
then submits the form, signed by both the employer and employee,
to the state employment service agency within three weeks after
the employee starts work. If the employee qualifies, the state
agency will certify the employee's membership in the targeted
group.
The employer should keep copies of Form 8850, transmittal letters
and any other documentation related to the Work Opportunity Tax
Credit for three years after filing the tax return claiming the
credit.
If you have questions about this new tax relief or how you might
use it, we suggest you call your business accounting advisor to
discuss them. While such a program may be just the thing for
you, after discussions with your professional advisors, you may
decide you would rather place your efforts elsewhere. In any
event, think through its applicability to your situation before
you make a commitment.
[SOURCE: Business Wire]
The U.S. Department of Justice has just published its ADA Guide
for Small Businesses. This illustrated guide explains how
you can make your small business and its goods and services more
accessible to people with disabilities and also meet your responsibility
to comply with the Americans with Disabilities Act (ADA).
The guide also provides important information about IRS tax credits
and deductions that can be used for complying with the ADA.
To order your free copy, call: 1-800-514-0301 (voice) or 1-800-514-0383
(TDD). These numbers are answered 24 hours a day, 7 days a week.
Employment discrimination complaints, based on either state or
federal law, require "make whole" remedies when the
charges are proven. That can include such things as reimbursement
for out-of-pocket expenses (e.g., medical), back pay for time
off the job during the complaint, reinstatement in cases of termination,
promotion which should have been given including any additional
compensation which would have been paid, and so forth.
One remedy which is heard about less often is "front pay."
Designed to compensate someone for the time they will be out
of work in the future as a result of the discriminatory action,
it is usually limited to the amount of time it takes someone to
locate another job.
In the case of Padilla v. Metro-North Commuter Railroad
(92 F.3d 117, 2nd Circuit, 1996) Stephen M. Padilla was employed
as superintendent of train operations at Metro-North in New York
City for two years when he demoted Michael Barletta at the insistence
of his own supervisor, Edmond Boni, Metro's general superintendent
of transportation. After the demotion, Barletta filed charges
of age discrimination with the Equal Employment Opportunity Commission
(EEOC).
Padilla cooperated with the EEOC investigator assigned to Barletta's
case. In an affidavit, Padilla said Boni had told him Barletta
"had old working habits" and that "some of these
old guys can't stand the stress because the jobs are more pressurized
than they ever were before." After the interview with the
EEOC investigator, Boni angrily approached Padilla, accusing him
of disloyalty. A co-worker testified he overheard Boni tell Padilla
"If you don't stop cooperating with them guys downtown, I'll
take care of you." Boni then told Padilla that he would
get the company's financial analyst "to do it."
A few weeks later, the company vice president of operations informed
Padilla that the financial analyst had discovered irregularities
in his staff's use of sick leave. When the analyst had found
irregularities in other departments, she took the matters up with
the department head, but in Padilla's case she went directly to
the vice president. After he met with the vice president, Padilla
was placed on suspension.
Padilla filed charges of retaliation with the EEOC. Approximately
one month later, Padilla was demoted from superintendent of train
operations to his former position of train dispatcher. His salary
was reduced by more than $20,000 annually. The trial jury found
Metro-North had willfully retaliated against Padilla for his participation
in the EEOC investigation of Barletta's charges.
Padilla asked the court to reinstate him to his former position,
but the judge said his relationship with Metro-North had been
"irreparably damaged" and reinstatement would be "unworkable."
Instead, the court ordered Metro-North to pay Padilla the difference
between the salary he earns and the amount it pays the superintendent
of train operations, both for the years since Padilla was demoted,
and until he reaches age 67, at which time he will be entitled
to retire from the company and receive a full pension.
The appeals court upheld the lower court ruling noting that front
pay is awarded to make the victims of discrimination whole in
cases where they "have no reasonable prospect of obtaining
comparable alternative employment." In view of Padilla's
unique circumstances, the trial court was correct in awarding
front pay until he reaches retirement age.
[SOURCE: HR News, October 1996, Society for Human Resource
Management, 606 N. Washington St., Alexandria, VA]
In mid-1996, the U.S. Supreme Court changed the rules for proving
a case of age discrimination. Up until that time if had been
necessary for people to show they were replaced by someone under
the age of 40. That was because, protection against age discrimination
applies only to those over 40.
When older employees were replaced by workers who were also over
40, some courts said that such a condition did not constitute
age discrimination.
In O'Connor v. Consolidated Coin Caterers Corp. (116 S.Ct.
1307, 1996) the Court said a person does not have to show his
or her replacement was under 40 years old to establish a prima
facie case. In September, the EEOC issued guidelines on
that decision.
O'Connor was 56 years old at the time he was discharged from his
job as regional manager for a vending machine company. He was
replaced by a 40-year-old during a company reorganization. The
employer claimed there was no age discrimination because both
individuals fell into the protected class.
The Supreme Court said that age discrimination can exist even
though both individuals are within the protected age group, if
the replacement is "substantially younger." Although
the court did not elect to define what it meant by "substantially
younger," it obviously views the 16 year age gap in this
case as substantial.
Employers Would Be Well Advised To:
- Document nondiscriminatory reasons for terminating workers
over the age of 40.
- Train all supervisors and managers to avoid age-related comments.
As of this writing, twenty-eight states exercise some control
over employers by governing what off-duty employee conduct they
can regulate.
Off-duty conduct is what someone does or says when "off the
clock" away from the workplace. In some other states, such
as California, there are laws assuring employee privacy when away
from the workplace.
Some state protections against employer discrimination are very
broad. Others are quite narrow. For example, in Connecticut,
Kentucky, Louisiana, Maine, Mississippi, Missouri, New Hampshire,
New Jersey, New Mexico, Oklahoma and Rhode Island it is illegal
for employers to require employees abstain from smoking while
off the job.
In Illinois, Minnesota, Montana, Nevada, New York and North Carolina
it is illegal for an employer to discriminate against an employee
based on the employee's lawful use of consumable products off
the job and away from the workplace.
New York also protects employee's political and recreational activities.
Colorado protects employee's lawful activities away from the
job, including marriage and planning to marry.
Many of these states also protect non-working activities of job
applicants. Some offer exceptions to their requirements if not
using tobacco is a bona fide occupational qualification of the
job.
When making policy decisions, employers are reminded that they
should consult their management attorney who specializes in labor
law. This advisor is in the best position to assist in determining
which state laws come into play regarding off-duty behavior of
employees.
Since case law continues to evolve, at different rates among the
states, it is a good idea to check for current court rulings in
these areas as well. This is especially important for employers
operating in multi-state jurisdictions.
"Never let what you fear intrude on what you know."
- American Indian philosopher SunRain
"If your ship doesn't come in, swim out to it." - Jonathan
Winters
"Only those who dare to fail miserably can achieve greatly."
- Robert F. Kennedy
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