TCHRA
2014
Larry Morgan, SPHR, GPHR, MAIR
Orion HR Group, LLC
©Orion HR Group, LLC

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24% PHR
17% SPHR

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Legal and legislative issues
Discrimination issues
Organization staffing
Job analysis and documentation
Recruitment
Flexible staffing
Selection and retention
Organization exit
Records management
Only federal legislation

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Title VII of the Civil Rights Act (1964)

Prohibits discrimination in hiring, firing, layoff, compensation, benefits, training, promotions / advancement, etc. based on the following:

Race
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Color
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National origin
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Religion
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Gender and gender identity

Sexual harassment

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

Exceptions to Title VII

Work related
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BFOQ
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Seniority
Civil Rights Act (1991)
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Jury trial
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Compensatory and punitive damage limits




15- 100 ees $ 50,000
101-200 ees $100,000
201-500 ees $200,000
501 and over $300,000

A.
B.
C.
D.
All employees must go through sexual harassment training
Discrimination against race and sexual orientation is prohibited
All employees must be paid the same
Employees must have an equal opportunity to participate in training

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GINA
Equal Pay Act
Fair Pay Act
Age Discrimination Employment Act

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BFOQ exception
Bona fide seniority plan
Top executives
Pilot or public safety officer
Pregnancy Discrimination Act
Sexual orientation not covered at federal level

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
Americans with Disabilities Act
(1990)

Essential duties

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Reasonable accommodation
Alcoholism and drug use
ADA Amendments Act (2008)

Expanded ADA

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Mitigation
“ Regarded as ” clause
Reasonable accommodation

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Uniform Guidelines on Employee
Selection Procedures
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Recruitment
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Testing
Interviewing
Selection
Performance appraisals
Adverse impact (disparate impact) concept and analysis for hiring, layoffs, promotions, etc.

th ”
 A company interviews 60 males and
40 females.
 They hire 30 males and 10 females.
 What is the selection rate of females?
 Does adverse impact exist?

Group
Males
Females
Answer:
Yes.
Number
Interviewed
60
40
Number
Hired
30
10
Percentage
Hired
50%
25%
Calculation:
50% of the males (high group) were hired. To determine adverse impact, multiply 4/5 or 80% of 50% = 40%.
Adverse impact occurred because 25% of the females
(low group) were hired, not the required threshold of 40%.

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Analyze data
Review testing methodology for bias, job relatedness, validity and reliability
Abandon or modify the procedure
Justify as business necessary

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Work related requirements
BFOQ
Seniority systems

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What is an executive order?
Executive order 11246
Executive order 13496

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Section 503 of the Rehabilitation
Act
Vietnam Era Veterans Readjustment
Assistance Act
Jobs for Veterans Act
Rehabilitation Act of 1973

A.
B.
C.
D.
Only private organizations with 50 or more employers
Employers who contract with state or federal governments
All employers, regardless of size
Employers with 15 or more employees

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Immigration and Nationality Act
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Resident and nonresident


Immigrant and nonimmigrant
Documented and undocumented
Immigration Reform and Control Act

I-9
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3 days to provide proof
List A- documents that establish identity and employment authorization
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List B- Identity
List C- Employment authorization
E-verify (may be required for contracts)

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Visa

First preference EB-1
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
Second preference EB-2

Requires at least Masters Degree
Third preference EB-3

Requires at least two years experience or training

(may also be state requirements)
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
100 or more

Full time employees

Full and part time employees working in aggregate at least 4,000 hours per week
60 days advance notice to



Affected workers
State dislocated worker units
Chief elected official of the local government

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Congressional Accountability Act
Uniformed Services Employment and
Reemployment Rights Act
Employee Polygraph Protection Act
Consumer Credit Protection Act
Fair Credit Reporting Act
Fair and Accurate Credit Transactions
Act

Which of the following assists employers in complying with federal regulations against discrimination?
A.
B.
C.
D.
Title VII
Congressional Accountability Act
Executive Order 11246
Uniform Guidelines on Employee
Selection Procedures

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No discrimination based on a protected class
EEOC vs. Affirmative Action
EEO Reporting for employers with
100 or more employees



Sept 30 each year
Race, ethnicity and gender
Nine job categories
Applicant flow data

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Charge filed and employer notified
Employer response
EEOC attempts mediation and settlement
EEOC findings-
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

Reasonable cause
No determination
No reasonable cause

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Preferential hiring based on past discrimination
Court order
State or federal contracts
Data analysis

Metropolitan Area Statistical Database

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Workforce analysis
9 categories
Annual reporting

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Organization profile
Organization display
Workforce analysis
Availability analysis
Placement goals

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Track applications to prove lack of discrimination
Definition of electronic job applicant

Employer must be seeking to fill job


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Individual must have followed the employers application process
Individual must express interest in a particular job
Individual must be qualified

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Griggs v. Duke Power
McDonnell Douglas Corp. v. Green
Abermarle Paper v. Moody
Washington v. Davis

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Voluntary compliance with AA
Glass ceiling
Reverse discrimination
Corporate management compliance evaluation
Quota vs. merit hiring
Employment Practices Liability Insurance
(EPLI)
Vicarious liability
Defamation
Libel
Slander

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Quid pro quo

“ this for that ”
Hostile work environment

Sexual or other conduct is so severe and pervasive that it interferes with an individuals performance; creates an intimidating, threatening or humiliating work environment.
Third party harassment
Same sex harassment covered
Sexual orientation not covered specifically at federal level but may be harassment

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Bullying
Social media
Cyberharassment
Intimidation, destruction of property, sabotage
Jerk behavior vs. harassment
Important to deal with if it involves a protected class

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Policy revisions
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Social media
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Cyberharassment
Code of Conduct
Complaint process
Fast investigation
Training of all employees, especially supervisors

Why are employers responsible for the discriminatory action of their supervisors?
A.
B.
C.
D.
EEOC regulations
Quid pro quo
Vicarious liability
Defamation

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Staffing

Identify current human capital needs

Supply qualified labor through recruiting and redeployment
Workforce planning
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Analyze workforce and identify future needs
Conduct gap analysis
Supply, demand, budget and strategic analysis

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Four stages
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Supply analysis
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Demand analysis
Gap analysis
Solution analysis

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Supply analysis – where are we now?
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Trend and ratio projections
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Turnover analysis
Flow analysis
Demand analysis – Where do we want/need to be?
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Judgement forecasts
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Managerial estimates
Delphi technique
Nominal group technique
Statistical forecasts
Gap analysis – What is lacking?
Solutions analysis – How will we get there?

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Four terms used to describe international business operations
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Ethnocentric
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Polycentric
Regiocentric
Geocentric

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Parent country nationals
Third country nationals
Host country nationals
Expatriates
Inpatriates
Repatriates
International assignee

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Short term assignees
Long term assignees
Sequential/ rotational employees
Commuting employees
Frequent flyers / extended business travelers
Stealth expats
Local hires / local nationals
Localized employees
Permanent assignees / permanent locals
Returnees
Outsourced employees

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A “ Job ” is a collection of activities (tasks) and responsibilities that an employee is responsible to conduct.
Job analysis is the systematic study of jobs to determine what activities (tasks) and responsibilities they include, their relative importance and relationship with other jobs, the personal qualifications necessary for performance of their jobs, and the conditions under which the work is performed.

Three key elements are included in a job analysis

Knowledge


Skills
Abilities

Sometimes “ O ” (other such as working conditions)

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Observation
Interview
Open-ended questionnaire
Highly structured questionnaire
Work diary or log

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Job specifications
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Education
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Experience
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Training
Mental abilities
Physical efforts and skills
Judgment
Decision making
Performance standards

Job description
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
Job title and organization
Relationships
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Duties and responsibilities
Essential job functions
Nonessential job functions
Working conditions
Level of decision making
Level of financial accountability

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Recruitment
Selection
Performance appraisal
Compensation and FLSA
Development
Promotions
Discipline / termination
ADA- essential functions
Litigation defense

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Skills

Observable and testable

“ Price of admission ”
Competencies

More than job knowledge, skills and abilities



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Developed over time
Personal to the employee
Emotional intelligence
Examples
Organization competencies

Which of the following produces a written summary of the work performed by an employee?
A.
B.
C.
D.
Job description
Job analysis
Job summary
Job specification

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Internal

Postings
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Job bidding
Skill banks / skill tracking systems
Employee referrals

External

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Former employees
Previous applicants
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Labor unions
Walk ins
Educational institutions or
Alumni associations
Job fairs
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Professional organizations
Internet postings

Organization web site
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Monster / Career builder
Social media
Professional recruiters
Temporary agencies
State employment agencies
Outplacement firms

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Most organizations use both internal and external methods
Handle recruitment consistently for all positions to avoid perception of inequity.
Watch for disparate impact
Affirmative Action plan requirements

Employees are given an opportunity to indicate interest in an announced opening through:
A.
B.
C.
D.
Skill tracking
Succession planning
Job posting
Job analysis

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Defines the “ EVP ”
Employer of choice
Brand pillar identification
Web site
Social media
Work environment awards
Benchmarking
Touchpoint mapping
Media ads
Personalized channels for external audiences
Collateral material
Marketing campaigns
Community events

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Short term

Time to recruit


Cost to recruit
Selection and acceptance rate of applicants



Quantity of applicants
Quality of applicants
EEOC implications

Long term

Performance of hires
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
Turnover
Absenteeism of hires

Training costs

Σ (External Costs) + Σ (Internal Costs)
___________________________________

External costs + Internal costs
________________________ x 100
Total first year compensation of hires
In a time period
Example $200,000 x 100 = 10%
$2,000,000


Determine yield ratio

Number of applicants





Number interviewed
Offers extended
Offers accepted
Male vs. female
Minority
Qualified applicants
______________
Ratio
Total applicants
100
___ = 33% Yield
300



Identify function, level of supervision required, time constraints, financial constraints, concerns over legal risks and liability
Alternatives

Independent contractors

On call workers
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Agency
Temporary employees
Seasonal employees
Temp to hire
Interns
Contract workers
Co-employment / joint employment arrangements

Identify Needs
Recruitment
Review applications and resumes
Screening and interviewing
Contingent Offer
Testing *
Background Checks

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Forms

Short



Long
Targeted application
Weighted application
Resumes
Prescreening phone calls
Applicant notification

When candidates supply resumes, why should they also complete application forms?
A.
B.
C.
D.
It is required by EEOC
It produces information about the candidate employers cannot ask in an interview
The forms require applicants to verify that the content is accurate
The forms are maintained while resumes should be destroyed

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Prescreening interviews
In-depth interviews
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Structured
Patterned
Stress
Directive
Nondirective
Behavioral
Situational
Group (team or panel)

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Stereotyping
Inconsistency in questioning
First impression error
Negative emphasis
Halo / horn effect
Nonverbal bias
Contrast error
Similar to me error
Cultural noise

If the interviewer allows one negative point to overshadow positive points, it is an example of
A.
B.
C.
D.
Cultural noise
Contrast effect
Horn effect
Halo effect

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
Uniform guidelines on employee selection procedures
Types of tests

Cognitive ability

Personality

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

Aptitude
Psychomotor
Assessment centers
Honesty / integrity
Polygraph
Substance abuse

Drug Free Workplace Act

The type of testing which measures capacity to learn or acquire new skills:
A.
B.
C.
D.
Personality
Psychomotor
Aptitude
Dexterity

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Fair Credit Reporting Act
Work reference checks
Academic credentials
Motor vehicle /drivers license
Credit history
Criminal background
Social security
Social media

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Reliability

Consistent results over time


Same instrument
Different raters
Validity





Content
Construct
Criterion related
Concurrent
Predictive

A.
B.
C.
D.
Administrative assistants with college degrees measured against those without degrees
Flight controllers tested for leadership and critical thinking skills
Computer programmers asked to debug a coding section
New hires are tested and compared against experienced employees

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The good, the bad and the ugly
Provides opportunity for self selection
Examples

Typical day

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
Organization mission/vision/values
Description of organization products or services
Positive and negative aspects of job
Opportunities for advancement and development
Tours of workplace

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Written offer with title, salary, start date, reporting relationship, benefits provided, etc.
Identify specific contingencies

Drug test

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


Background check
Physical or psychological test
Qualified medical exam
Licensure or certification
Training

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
Override “ employment at will ”
Typically used for executives or sales
May be written or verbal
Terms

Length of agreement



General duties and expectations
Confidentiality and nondisclosure
Invention, trade secret or proprietary information


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

Non-compete
Compensation and benefits
Terms for resignation /termination
Severance
Change in control
Relocation

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Definition
Costs

Financial

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
Other
Replacement
Training
Strategies
Evaluating retention strategies
Onboarding
Succession planning


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Offboarding
Reduction in force
Severance packages
Downsizing
Terminations





Wrongful termination
Constructive discharge
Retaliatory discharge
Coercion
Involuntary discharge

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Organization exit
Layoffs / Reduction in force (note
WARN Act)
Merger and acquisition
Severance
Waiver and release

A.
B.
C.
D.
A nine factor analysis
A review of personnel files for performance issues
A review of unemployment claims
Assessment against disparate impact for age

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Takes two to hire, two to fire
Voluntary termination
Exit interviews
Outplacement


Do








Give as much warning as possible
Meet in private
Be respectful
Make sure the employee hears the termination from a manager and not a co-worker
Express appreciation for what they have done
Control the emotions
Provide them with a written statement outlining last date of employment, severance, benefit issues, etc.
Inform other employees, customers and suppliers with a simple and basic statement.

Don ’ t
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



Don ’ t leave room for confusion or ambiguity, inform them immediately of the termination
Suggest the position is eliminated and then rehire for the same role
Don ’ t debate
Don ’ t rush the employee off site unless there is a security issue
Fire people on significant dates
Make discriminatory statement
Fire when people are on vacation or have just returned
Discuss the termination with other employees
Make disparaging comments

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
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
HIPAA regulations for Protected
Health Information (PHI) and electronic PHI (ePHI)
Three files

Personnel file


Benefits file
I-9
Investigative notes
Control access




State vs. federal
No clear standards
General guidance:

Payroll records at least three years




Applicant files- one year after position filed
Personnel files- one year after employee leaves
Retirement information- lifetime of employee and contingent beneficiary
Workers comp- employment of individual

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ADA
Adverse impact
Affirmative action
Age Discrimination in employment Act
Aptitude test
Assessment centers
Availability analysis
Behavioral interview
Bona Fide Occupational Qualification (BFOQ)
Civil Rights Act
Co-employment
Cognitive ability test
Competency
Concurrent validity
Congressional Accountability Act
Construct validity
Constructive discharge

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Consumer Credit Protection Act
Content validity
Contrast effect
Core competencies
Criterion related validity
Cultural noise
Delphi technique
Disparate impact
Disparate treatment
Employee Polygraph Protection Act
Employment at Will
Employment branding
Employment contract
Employment practices liability insurance
Essential function

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Exit interview
Expatriates
Fair and Accurate Credit Transactions Act (FACTA)
Fair Credit Reporting Act (FCRA)
First impression error
Flexible staffing
Garnishment
Glass ceiling
Halo effect
Horn effect
Host country nationals
Hostile environment harassment
Immigration Reform and Control Act
Independent Contractors
International assignee
Involuntary termination

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Job analysis
Job applicant
Job bidding
Job description
Job posting
Judgmental forecasts
Lilly Ledbetter Fair Pay Act
Local nationals
Nominal group technique
Organization exit
Outplacement
Outsourcing
Panel interview
Parent country nationals
Patterned interview
Personality tests
Placement goals

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Polygraph test
Predictive validity
Pregnancy Discrimination Act
Prima facie
Protected class
Quid pro quo
Quota
Realistic job preview
Reasonable accommodation
Reliability
Repatriates
Retaliatory discharge
Sexual harassment
Simple linear regression
Simulations
Situational interview
Skill banks

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Stereotyping
Stress interview
Structured interview
Substance abuse tests
Targeted interview
Team interview
Third country national
Transgender
Trend and ratio analysis
Turnover
Uniform Guidelines on Employee Selection Procedures
Uniformed Services Employment and Reemployment Rights Act
Validity
Vicarious liability
WARN Act (Worker Adjustment and Retraining Notification Act)
Workforce analysis
Workforce Planning
Yield ratios

Larry Morgan
952-210-0742 larry.morgan@orionhr.com
www.orionhr.com