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  • In a significant stride towards a fairer and more just work environment, the Fifth U.S. Circuit Court of Appeals recently handed down a ruling that promises to reshape the landscape of discrimination lawsuits. With this ruling, employees now have a stronger basis to challenge discriminatory actions related to scheduling and other employment-related choices.

    Expanding The Boundaries Of Anti-Discrimination Laws

    On August 18th, 2023, the court confirmed that federal anti-discrimination laws can extend their protection to encompass decisions beyond what was previously deemed “ultimate employment actions.” Traditionally, to build a case of discrimination, employees had to demonstrate they had suffered due to a significant employment decision, such as termination, suspension, or demotion. However, this new ruling breathes life into a broader spectrum of scenarios.

    Under the umbrella of Title VII of the Civil Rights Act of 1964, employers are legally prohibited from discriminating against individuals based on race, color, religion, sex, or national origin regarding compensation, conditions, privileges, and terms of employment. Prior to this ruling, legal action necessitated a link to an ultimate employment decision. Now, the court’s verdict enables claims based on any decision that influences employment terms, conditions, or privileges.

    A Case That Ignited Change

    The origin of this case lies in Hamilton v. Dallas County. The lawsuit was brought forth by nine female detention officers from a Texas jail, highlighting gender discrimination. The heart of the matter was the preferential scheduling of male officers with full weekends off, while female officers were obligated to work at least one weekend day. The county’s defense was rooted in the assertion that the scheduling policy didn’t directly impact the female officers’ core job responsibilities, compensation, or benefits. The female officers, however, argued that the scheduling policy’s adverse effects constituted an adverse employment action. The decision by the Fifth Circuit Court of Appeals reverberated with the sentiment of equality. This case serves as a poignant reminder to employers that decisions, even those that don’t culminate in a significant employment outcome, should be untainted by any form of discrimination.

    Balancing The Scale Of Justice

    While this ruling opens the door to justice, it also sets a new standard for employees wishing to bring forward discrimination claims in the scheduling context. Demonstrating that such discrimination had a disparate impact on a protected group is just the beginning. Employees must also establish tangible harm linked to the decision, such as financial loss due to missed overtime pay, bonuses, or premium pay periods.

    However, it’s important to note that the court has drawn a line. The ruling does not hold employers liable for “de minimis workplace trifles,” as highlighted by attorney Tiffany Cox Stacy. This discernment prevents the floodgates from opening to minor claims while still prioritizing the pursuit of genuine equality.

    Navigating The Evolving Landscape

    The implications of this ruling are profound and demand proactive attention from both employers and HR professionals. The increased potential for litigation over what constitutes an adverse employment action could lead to a surge in cases until the U.S. Supreme Court weighs in. Employers must be prepared for an evolving legal landscape and a heightened need for well-documented decision-making processes.

    An attorney with Morrison Cohen predicts that this ruling might give rise to a new wave of complaints post-pandemic as employees strive to protect their positions and counteract perceived retaliation. The challenge for employers is to navigate an environment where almost any business decision could be interpreted as adverse.

    Consequently, HR departments are advised to adopt a discerning lens towards employment actions that fall short of ultimate decisions. This could translate into more active involvement in matters such as progressive discipline, which might have a bearing on employees’ eligibility for promotions, transfers, raises, or changes in schedules. Legal experts recommend carefully scrutinizing existing scheduling policies and forthcoming changes to ensure alignment with business needs and legal requirements.

    While the road ahead might be intricate, employers can navigate it by focusing on legitimate business justifications for their decisions. Documentation will be instrumental in proving that employment choices are rooted in nondiscriminatory principles.

    The Assistance Of A PEO

    As the courts expand the boundaries of what constitutes an adverse employment action, the need for vigilant and comprehensive workforce management becomes paramount for business owners. This shifting legal landscape highlights the crucial role of a professional employer organization (PEO) in guiding businesses through these complexities. A PEO’s expertise in navigating nuanced employment decisions, coupled with their commitment to fostering equality and compliance, offers a steadfast anchor in times of change. By partnering with a PEO like Group Management Services (GMS), business owners can confidently navigate the evolving terrain, ensuring their workplace remains fair, where employees’ rights are safeguarded, and the path to success is paved with integrity. In an era of transformation, GMS empowers business owners to embrace these legal developments and champion a thriving, inclusive, and legally sound workplace. Contact us today to learn more.

  • In a resounding vote of 34-1, the California Senate has taken a historic stride towards furthering anti-discrimination laws by considering the protection of caste within its legal framework. Senate Bill 403, once a proposal to introduce caste as a distinct category of protected characteristics, has evolved to redefine the boundaries of ancestry within the state’s anti-discrimination statutes. This legislative move is not only a leap for California but could potentially ignite a nationwide movement against caste-based discrimination.

    Understanding Caste

    Caste, a complex system of hereditary classes deeply rooted in certain societies and cultures, is a topic both intricate and sensitive. Its impact resonates across ethnic, linguistic, and religious divides, making the California Senate’s decision to consider its legal protection an undeniable call for societal transformation. The concept has been in the U.S. since at least the mid-1960s when more immigrants arrived from South Asia. Individuals in the lowest social and religious class were long called “untouchables.”

    At work, individuals in lower castes say those in higher castes give them less pay, fewer promotions, and tougher assignments. In social settings, caste can limit relationships and marriages and lead to isolation. In the most extreme cases, it has led to harassment or even violence.

    What Would This Bill Do?

    Senate Bill 403 would add caste as a legally protected category to the state Unruh Civil Rights Act, the California Fair Employment and Housing Act, and the state anti-discrimination policy in public schools. The bill bans discrimination based on caste, whether the person is in a high or low position.

    Since California has expanded protections to other disadvantaged groups, and discrimination based on caste is becoming increasingly common, businesses and schools need clarity on what the state law requires.

    The Evolution Of Senate Bill 403

    Initially, the bill proposed the inclusion of caste as a standalone safeguard against discrimination. However, a significant amendment on July 10th, 2023, saw caste incorporated into the definition of ancestry, reaffirming its connection to an individual’s perceived place within a social stratification system based on inherited status. This amendment underscores California’s commitment to building on existing anti-discrimination laws rather than crafting entirely new avenues of protection.

    While the immediate scope of the bill centers around employment practices within California, its implications resonate far beyond state lines. This pivotal moment could inspire other jurisdictions to follow suit, thus reshaping the anti-discrimination landscape on a broader scale. Employers nationwide should recognize the potential transformation of the legal and social framework surrounding caste-based discrimination.

    The bill’s measured approach, abstaining from naming specific countries or regions where caste systems originate, speaks to a profound commitment to addressing this issue globally. This stance aims to eliminate discrimination regardless of an individual’s country of origin, championing unity in the face of cultural diversity.

    Behind this legislative drive lies the undeniable urgency to combat caste-based discrimination, a concern that transcends borders. Spearheaded by State Senator Aisha Wahab, Senate Bill 403 signifies a commitment to fostering a more inclusive society free from the shackles of caste prejudice. As the United States continues to evolve into a mosaic of cultures and identities, acknowledging and dismantling caste-based discrimination only grows more critical.

    Seattle’s Precedent And Nationwide Impact

    Seattle’s precedent-setting inclusion of caste in its list of protected categories was the first domino to fall, prompting discussions and actions nationwide. As the California Senate makes bold strides, other states and institutions contemplate similar measures. The echoes of this legislative movement have reached the halls of Oregon and Vermont, with universities nationwide championing policies against caste-based discrimination.

    Workplace Transformation: Implications For Employers

    As this issue comes under the spotlight, some argue that existing protected classes could sufficiently cover caste-based discrimination. Senate Bill 403’s nuanced inclusion of caste within the ancestry category reflects a thoughtful approach that honors the unique nature of this complex issue.

    For California employers, the potential enactment of Senate Bill 403 would necessitate a thorough evaluation and revision of policies and training programs. Employers would contribute to a more inclusive and equitable workplace environment by integrating caste discrimination discussions into equal employment initiatives.

    Navigating the intricacies of caste-based discrimination demands sensitivity and expertise. Employers must acknowledge the complexities, including the potential pitfalls of identifying specific regions as origins of caste, which could inadvertently exacerbate discrimination.

    How PEOs Navigate California’s Changing Landscape

    As the journey towards a caste-discrimination-free society gains momentum, California’s resolute stance sets an inspiring example. For businesses in the state, the evolving legal framework and sensitivities surrounding caste protection can present unique challenges. In such a transformative time, partnering with a professional employer organization (PEO) becomes a strategic move for business owners. PEOs like GMS offer HR expertise and a deep understanding of the shifting legislative landscape.

    With our guidance, businesses can navigate the complexities of integrating caste-discrimination discussions into policies and training programs, fostering a workplace that embraces diversity and equity. As California forges ahead on this path of progress, GMS stands ready to empower business owners with the knowledge and tools to champion inclusivity, ensuring this change reaches every corner of the workplace. Interested in learning more? Contact us today.

  • Pay discrimination has been the source of workplace conflict for decades. However, the pressure for pay transparency has recently reached new levels. People are now aware of the disparities that exist in wages based on gender, race, and other protected classes and demand action. Employees want fair compensation for their work, and top talent flocks to companies that are transparent with their salaries and benefits to the public.

    However, in several states across the country, pay transparency is not just encouraged but mandatory. New laws and regulations require companies to share salary information upfront in job postings and prohibit employers from requesting an applicant’s salary history.

    Wage transparency is necessary for all businesses to establish employee trust, attract new talent, and benefit your business’s reputation. It’s a compliance issue employers must take seriously to avoid potential litigation.

    What Is Pay Equity?

    Pay equity is the compensation approach ensuring employees are paid fairly for their work, regardless of gender, race, ethnicity, or other protected classes. The process goes beyond removing biases related to personal factors, but includes the analysis of other employee aspects, such as education and previous work experience, to determine fair pay.

    Regulations surrounding pay equity first went into law in the early 1960s. One of the most well-known regulations is the Equal Pay Act of 1963 which prohibits pay differences between men and women who have equal work at the same business. The following year, Title VII of the Civil Rights Act of 1964 strengthened pay equity by barring pay discrimination based on race, color, and national origin.

    While legislation has made significant strides to protect workers, discrimination is still prevalent. By implementing policies within your company, you can guarantee wage equality for your employees.

    Why Does Pay Equity Matter? 

    Pay equity is crucial as it directly reflects how you treat your employees and affects their well-being. It’s a matter of fairness; employees who perform the same work should receive the same pay. Discrimination based on personal beliefs or backgrounds is simply unacceptable in the workplace.

    While fair, transparent wages should be the standard, it also benefits you as the employer as it attracts and retains top talent. Open communication between upper management and employees about pay establishes trust. Your employees are more likely to stay with a company that pays them fairly and offers opportunities for growth and advancement. A happy workforce leads to a decrease in turnover and an increase in both productivity and overall morale.

    Pay equity can be equally harmful as it is beneficial if you ignore new regulations. These laws vary from state to local government and range in severity, so you must stay current on legislation in your area. Presently, states including Colorado, Maryland, California, and New York are among the handful of states taking severe action to implement transparency measures. Some of the most popular regulations include:

    • Mandating the inclusion of minimum and maximum salary ranges in job listings 
    • Prohibiting employers from requesting an applicant’s salary history
    • Prohibiting the discrimination of applicants who request salary information or refuse to provide their salary history 
    • Requiring employers to provide the salaries of similarly positioned employees
    • Requiring the disclosure of employer benefits for each job opening 

    How Do Raises Relate To Pay Equity?

    Salaries don’t start and end after onboarding; annual bonuses and raises continuously affect wages and, therefore, must be a part of your pay equity policies. They help motivate and retain employees by providing opportunities for growth and advancement, increasing the likelihood of staying with a company.

    Equity increases would be a raise in salary after finding a discrepancy in an employee’s compensation in an effort to reconcile the issue. These can come directly from conducting a pay equity analysis which examines your current pay practices to discover any disparities.

    How To Implement Pay Equity And Raises Effectively 

    Promoting pay equity in your workplace requires a commitment to fairness and a willingness to examine your current pay practices. Implementing pay equity and raises effectively requires careful planning and communication. Here are some tips for implementing pay equity and raises effectively:

    • Conduct a pay equity analysis: You must understand where you stand before implementing pay equity. Conduct a pay equity analysis to identify any disparities in pay based on gender, race, ethnicity, or other protected classes. This analysis helps identify any areas where pay equity may be lacking and provides a roadmap for addressing these disparities. 
    • Develop a pay equity policy: Once you’ve conducted a pay equity analysis, it’s crucial to develop a pay equity policy that outlines your commitment to pay equity and how you will achieve it. When giving out raises, it’s important to communicate clearly with employees about why they are receiving a raise and how much it will be. This helps build trust and transparency with employees. 
    • Review your job descriptions: Review your job descriptions to ensure they accurately reflect the work to ensure that employees who perform the same responsibilities receive equal salaries. 
    • Provide training: Train managers and employees on pay equity and how to promote it in the workplace. This helps build awareness and understanding of the importance of pay equity. 
    • Monitor and adjust: Finally, it’s important to monitor your pay equity and raise policies and adjust as needed to maintain pay equity and attract and retain top talent. 

    Steps To Perform A Pay Equity Analysis 

    Performing a pay equity analysis is significant in promoting pay equity in your workplace. It involves examining your current pay practices to identify any disparities in pay based on gender, race, ethnicity, or other protected characteristics. Here are the steps to perform a pay equity analysis:

    1. Identify the scope of the analysis: The first step in performing a pay equity analysis is to identify the size of the investigation. The scope includes identifying the job titles, departments, and locations included in the analysis. You should have a clear purpose for what you hope to identify through this process. 
    2. Research your pay policies: It’s particularly important to collect historical pay rates to help you understand how current rates were determined. All data collected must be in a way that protects employee privacy and confidentiality. 
    3. Collect data: Depending on the purpose of your audit, you collect different information. While this step is time-consuming, it’s essential as all analysis connects back to these data points. In general, this will include:
      • Job title 
      • Job level 
      • Department 
      • Education level 
      • Gender 
      • Age
      • Race
      • Hire date
      • Starting salary 
      • Current salary 
      • Overtime or bonuses
    4. Analyze the data: Using statistical analysis, you can compare the pay of employees who perform the same or comparable work, considering the factors that impact pay. Similar work can include positions across departments, and states have defined what counts as comparable work. This analysis can help identify any pay disparities based on illegal discrimination. 
    5. Identify areas for improvement: Based on the results of the analysis, you can identify areas where pay equity may be lacking and develop a plan to address these disparities. It’s important to note that pay differences between employees performing similar work can be legally justified. Earnings based on seniority, merit, or production measuring system are all legal by federal law. On the contrary, any discrepancies found on sex, race, color, religion, or national origin are illegal and must be corrected immediately. 
    6. Communicate and take action: Finally, it’s important to communicate the results of the pay equity analysis to finance or human resources to get approval on wage increases. Then you should implement the salary increase and inform the employee(s) accordingly. Moving forward, the results of the pay analysis help establish payment policies for future hiring or wage decisions. 

    Performing a pay equity analysis requires careful planning and attention to detail. By following these steps, you can identify any disparities in pay and develop a plan to address them, promoting fairness and equity in your workplace.
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    Managing Payroll With Pay Equity In Mind

    Pay equity and raises are important topics for both employees and employers. Pay equity ensures that employees are paid fairly for their work, while raises help to motivate and retain employees. Implementing pay equity and raises effectively requires careful planning and communication, but doing so effectively will help you attract and retain top talent while reducing legal risks.

    As a business owner, you have enough on your plate, and while you want the best for your employees, you don’t always have the time. By partnering with a professional employer organization (PEO), we help you with all your HR needs, from recruiting a qualified workforce to ensuring fair compensation for your employees.

    At GMS, we manage the time-consuming task of payroll, so you have one less thing to worry about, and your employees will remain motivated knowing their employer cares about them. Instead of spending your time on administrative tasks, pass them off to us. We offer an extensive range of services, including:

    • Ensuring your business stays compliant with new regulations 
    • Developing an equitable pay structure 
    • Writing job descriptions
    • Conducting competitive pay analyses 

    Additionally, our advanced payroll software, GMS Connect, streamlines the payroll process to simplify timekeeping and give users access on the go. Contact us today to learn more about how our payroll services benefit both you and your team.

  • The seventh Circuit Court of Appeals rejected the Equal Employment Opportunity Commission’s (EEOC) on August 16th, 2022. This was to increase the scrutiny given to sex discrimination cases under the Pregnancy Discrimination Act and the Civil Rights Act of 1964. This ruling now means employers may exclude pregnant workers from light-duty work if they have a non-discriminatory reason.

    However, the Appellate Court rejected this argument and found that the Pregnancy Discrimination Act was entitled to heightened scrutiny or a “most favored nation status” amongst other types of discrimination. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

    Understanding Young V. UPS

    In 2015, the U.S. Supreme Court issued its decision in Young v. UPS, which employer and employee groups hoped would clarify whether employers must provide workplace accommodations to pregnant employees, following the same manner as they provide accommodation to employees who are injured on the job. In addition, the Supreme Court ruled that pregnant employees can claim disparate treatment by showing that they belonged to a protected class, requested accommodation, and could not receive it while the employer accommodated others who were similar in their physical limitations. The employer must show a legitimate, nondiscriminatory reason for denying the accommodation. If not, it’s a violation of federal law.

    A case back in 2017 regarded Walmart, which permitted light duty for workers that were injured on the job but did not offer light duty to pregnant workers or employees who were injured outside the job. The EEOC then argued that this instituted sex discrimination violated Title VII of the Civil Rights Act of 1964 and the PDA. However, Walmart required pregnant employees with lifting restrictions or other limitations to go on leave.

    In 2020, Walmart settled a different national class-action lawsuit that denied light-duty work to pregnant workers for $14 million and has overhauled the policy since then. A lawsuit was filed against Walmart in 2013 and 2014. These incidents pertained to denied accommodation requests. Walmart has since changed its policy as a result of the lawsuit.

    New Laws Have Been Enacted Since 2020

    Walmart has been an example for other companies to set the proper protocols in place. This has led additional states to pass laws prohibiting pregnancy discrimination. Over the last couple of years, there have been over 30 states that have enacted pregnancy accommodation mandates. In addition to these state mandates, employers are making decisions to open restricted-duty programs previously reserved for employees injured on the job to pregnant employees with restrictions.

    What This Means For Employers

    While rules and regulations are constantly evolving, it’s vital for the business owner to stay on top of them. When you partner with GMS, you no longer have to deal with the burdens of staying on top of regulatory changes. Our experts provide you with resources that enable you to focus on growing your business while we handle payroll, risk management, HR, and benefits. Contact us today to learn more.

  • So you have that “bad apple” employee that you have to get rid of. He’s a pain in your side. Your management team spends an inordinate amount of time dealing with him and frankly, his co-workers don’t like him either. Sounds like a no-brainer, right?

    Wrong.

    When letting an employee go for cause, you need to make sure that you’re protecting yourself from the liability of:

    1. An unemployment claim that will drive your unemployment insurance up, cutting into your margins or putting you in a competitive disadvantage with your competitors
    2. A potential discrimination lawsuit filed by the employee
    3. A possible violation of either the FMLA or ADA that will have the federal government breathing down your back

    How do you avoid these pitfalls? As with all things, there’s an easy way and a hard way.

     

    Picture of a rotten apple. Think it's easy to fire bad employees? Make sure you're protecting yourself from employer liabilities.

    The Hard Way

    You do have tools that are available to you. According to a recent National Law Review piece, the three most underutilized tools to protect employers from liability are: the extra step, job descriptions, and the gut check.

    These harken back to the proper documentation and making sure that a systematic process is followed before terminating an employee for cause.

    That brings us to the definition of the “hard way”. You have to make sure that you have accurate, up-to-date job descriptions in place along with an established, documented protocol that you follow. You can easily address all of those things during your downtime (evenings, early mornings and weekends).

    The Easy Way

    The easy way is to find an inexpensive and cost and time-efficient way in managing your unemployment. The most efficient way of handling these things is through the use of a PEO (Professional Employer Organization). PEOs can look at your operation and put together a comprehensive employee management plan that protects you, your employees and helps reduce employee cost and liability.

    To learn more how a PEO can help your business, contact us today.

  • It’s common for HR professionals to field questions about compliance and discrimination concerns. One question that some small business owners ask is how LGBT and gender requirements can impact their company. There are many laws and protections in place to prevent discrimination based on gender identity or sexual orientation that employers should know about.

    LGBT and Gender Discrimination Laws and Protections

    To start, The U.S. Equal Employment Opportunity Commission (EEOC) is in charge enforcing federal laws that make discrimination illegal. This means that the EEOC “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. The protections apply regardless of any contrary state or local laws.”

    The courts have held that Section 4112 of the Ohio Revised Code does not apply to sexual orientation. However, there have been state and federal government actions that do offer Ohio employees some protections from discrimination. 

    Gov. John Kasich used Ohio Executive Order 2011-05K to declare that persons employed by the state would not be discriminated against based on their sexual orientation in matters of hiring, layoff, termination, transfer, promotion, demotion, or rate of compensation. Former Gov. Ted Strickland also issued Executive Order 2007-10S that prevented the discrimination based on gender identity. In addition, former President Barack Obama signed Executive Order 13672-2014, which prohibits federal contractors and subcontractors from discriminating against others based on both sexual orientation and gender identity.

    Additional protections against discrimination involve insurance coverage. According to HealthCare.gov, “An insurance company that offers health coverage to opposite-sex spouses must do the same for same-sex spouses.” Insurance companies can’t discriminate against same-sex couples who are legally married in a jurisdiction that can authorize the marriage. This is the case regardless of the state where the couple lives, where the insurance company is based, and where the plan is sold, renewed, or in effect.

    Potential Transgender Workplace Issues

    Aside from hiring, layoff, termination, transfer, promotion, demotion, or rate of compensation decisions, there are other potential issues that employers should consider for transgender employees. For instance, the state of Ohio allows a transgender person to change their name and employers must accept this change.

    Another issue involves company bathrooms. According to Obergefell and LGBT Employment Law, “If fellow employees do not want the transgendered person, either before her gender transformation or during it, to use their bathroom, the employer must still offer the transgendered employee a bathroom. There is no law to force employers to honor the new gender for bathroom assignment. The best practice is to have the transgendered person use the bathroom that is identified with her gender identity and tell employees who do not want to share with her to use an alternate bathroom.”

    Preventing LGBT and Gender Discrimination Claims

    Over the years, the EEOC has received “1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status.” Examples of LGBT-related sex discrimination claims include failing to hire an applicant because she’s transgender or harassment of an employee because of their sexual orientation or gender identity.

    Of those 1,412 charges, the EEOC resolved 1,135 of them, leading to employers paying out $3.3 million in monetary relief for the affected workers and to make changes to prevent future discrimination.

    As discrimination laws continue to evolve, it’s crucial that business owners make sure that they are following every regulation in place to prevent discrimination in the workplace. A Professional Employer organization can provide human resource management to make sure your business is following all the necessary laws and that any important internal documents, such as your employee handbook, are updated 

    for any changes in LGBT and gender discrimination laws and protections. Contact us today to talk to one of our experts about how we can help your business today.

  • As a small business owner, you’re in control of your business. However, things that you can’t control can impact your business as well. 

    Certain laws and executive orders can potentially require you to change certain processes and policies to protect your company. It’s important to keep an eye out for any news that can lead you to review current practices and make changes, such as when Michigan Gov. Gretchen Whitmer signed an executive order to increase protections that prohibit anti-LGBTQ discrimination in January of 2019. Whether your business is in Michigan or not, it’s a good time to consider how orders like these can impact your day-to-day operations.

    A job applicant being interviewed by a small business following non-discrimatory hiring practices. 

    What Does This Mean for Your Small Business?

    For most businesses, Whitmer’s order won’t change all that much. Outgoing Gov. Rick Snyder signed a directive in December of 2018 that, per the Detroit Free Press, “barred state contractors from discriminating against gay or transgender employees,” with exceptions for churches and religiously-affiliated organizations. The new order removes that exception, but that still puts most small business owners in the same spot as before.

    The bigger takeaway from this order is that it’s a part of a bigger trend across the U.S. to extend protections to people seeking employment, whether it’s because of sexual orientation and gender identity or another reason. In addition, LGBTQ and gender discrimination claims are expensive. The U.S. Equal Employment Opportunity Commission (EEOC) enforces discrimination laws on a federal level and has forced offending employers to pay out more than $3.3 million in monetary relief. As discrimination laws evolve across the country, it’s important to be proactive about potential changes instead of waiting for an issue to arise.

    How You Can Protect Your Business During the Hiring Process

    Discrimination is a matter of hiring–or not hiring–a candidate for reasons that aren’t based on an applicant’s qualifications. Each state’s anti-discrimination laws can differ, but the best way to avoid potential issues is to have a hiring process in place that treats everyone equally and documents interviews so that you can protect yourself from any anti-discrimination claims.

    Establish Set Interview Questions

    If you don’t already, create a regimented interview process with standard interview questions that you ask every candidate. This will help you give each applicant an equal opportunity to make their case for the job. You also need to be careful about the questions you ask. Making direct inquiries that impact gender, race, age, or other protected criteria can lead to trouble. 

    For example, the Yale Office of Career Strategy notes that inquiries about family information status are potentially illegal in a job interview. A question as simple as “Are you married?” can be viewed as a way to probe for personal information or to even determine a candidate’s sexual orientation, even if it was an innocent attempt at conversation.

    Don’t Treat Some Candidates Differently than Others During the Interview Process

    No matter the opening, it’s important to conduct every interview the same way no matter who sits in front of you. Use your set list of questions and provide the same type of feedback. Follow-up questions can certainly vary depending on certain responses or specific qualifications, but it’s good to give everyone the same chance to answer the same base list of questions.

    Take Notes and Document the Results

    As you go through the interview, make sure to write detailed notes about a candidate’s responses for future evaluation. Not only are these notes useful if you have to compare a couple of close candidates, it creates a record of what was said in case an applicant tries to make a discrimination claim. In this case, you can present information on why you hired one candidate over another based on their responses and your notes. 

    If possible, it’s also good to conduct interviews with another colleague so that he or she can take notes as well. Not only will this give you another person to help during the interview, it gives you a second set of recorded notes to use in case any claims are filed.

    Keep Your Hiring Practices Ahead of the Curve 

    Finding and hiring the right job candidates is stressful. When you add in anti-discrimination considerations and other potential pitfalls that you can face in the hiring process, it can be overwhelming. Rules and regulations will continue to change over time, but there is a way that you can be proactive and protect your business.

    As a Professional Employer Organization, GMS can be the partner you need to shoulder the administrative burden and strengthen your business’ HR functions. Our team of experts allow you to outsource everything from payroll administration to employee recruitment and training programs. In turn, you not only save the time necessary to run your business, you gain the advantage of working with a group that can keep you up to date on any issues that may impact your company.

    Ready to keep your business ahead of the curve? Contact our Detroit office or one of our other locations across the country to talk to one of our experts about how we can help you strengthen your business today.

  • It’s no surprise that it’ll take a lot of questions to determine whether a job candidate is the right fit for your company. However, you may not know that there are quite a few interview questions that can land your company in trouble. 

    One example of this is the city of Cincinnati’s new Salary Equity Ordinance, a measure that passed in 2019 and will take effect in March 2020. At that time, it will be illegal for employers in Cincinnati to ask about a job candidate’s pay history. This measure impacts any step of the hiring process, ranging from job ads to employee interviews.

    While Cincinnati employers must adjust to the Salary Equity Ordinance, there are many other types of questions that are disallowed from the interview process across the country. An illegal question can lead to a variety of consequences, including a discrimination lawsuit or an investigation by the U.S. Equal Employment Opportunity Commission (EEOC). This means you’ll want to brush up on which interview questions can lead to EEOC complaints.

    HR managers after asking an illegal job interview question. 

    Problematic Topics for Job Interviews

    Some illegal interview inquiries are clear – you shouldn’t ask questions about a job candidate’s race or sexual identity. While those two topics pose apparent discrimination problems, others dangerous questions are not as apparent. 

    Even questions asked with the best of intentions can be flagged as illegal. What you may see as an innocuous attempt at small talk can be interpreted as a topic that’s off limits. As a result, here are some topics that should be addressed carefully or avoided altogether.

    National origin and citizenship

    Any question regarding a candidates’ national origin can be an issue. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to base hiring decisions on a person’s citizenship or immigration status. Even a question asking about a candidate’s accent can be misconstrued as an attempt at discrimination. However, it’s acceptable to ask whether a candidate can legally work in the U.S., provide the required documentation if hired, and read, write, and speak English if required by the job.

    Religion

    If a question involves a candidate’s potential religion, you should probably leave it unsaid. Even roundabout questions like whether a candidate will need time off for religious holidays can be seen as non-job related and an attempt to discriminate against a person for his or her beliefs. According to the Yale Center for International and Professional Experience, the only employers allowed use religious affiliation as a basis for hiring are those “whose purpose and character is primarily religious.”

    Pregnancy status

    It’s not acceptable to ask about their pregnancy – even if the person interviewed is clearly pregnant. Not only does this violate set pregnancy discrimination laws, it can also potentially appear as gender discrimination since male candidates won’t have to answer the same questions. General questions about any future planned leave is acceptable if the question isn’t tied to the pregnancy. Also, feel free to ask other neutral job-related questions involving certain work responsibilities to see if the candidate can perform necessary tasks.

    Marital status or number of children

    Like pregnancy, you aren’t permitted to ask job candidates whether they’re married or have any children. Asking about these may lead an employer to discriminate against a candidate because they may need some time to take care of their current or future children. Instead, ask about specific job-related responsibilities to see if they can perform these tasks, such as travel requirements or set work hours.

    Disability

    The Americans with Disabilities Act (ADA) makes it illegal for employers to ask a range of questions that “are likely to reveal the existence of a disability before making a job offer.” That means any questions regarding how many sick days an applicant took in the past year or what drugs they take.

    It’s also generally disallowed to ask if an applicant will need a reasonable accommodation for a job unless “the employer knows that an applicant has a disability, and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task” For example, the EEOC writes that it’s fine to ask about reasonable accommodation if the applicant voluntarily revealed his or her disability or there’s a clear visual sign, such as if the applicant uses a cane for a severe limp.

    Age or genetic information

    It’s only acceptable to ask about an applicant’s age if it’s directly tied to their job. For example, someone who works at a bar or some other age 21-plus environment will need to provide proof of their age. Even a question like when an applicant graduated from high school can be viewed as an attempt to identify a person’s age.

    Arrest record

    According to the EEOC, there is no federal law preventing employers from asking candidates about their criminal history – although “Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.” It’s important to note that while there’s no federal law against asking about arrest records, many states ban the practice. As such, make sure to check your state’s laws before asking candidates about their criminal history.

    Protect Your Company During the Hiring Process

    Adding a new employee is an exciting step for any business, but it’s important to make sure that your business proceed with caution. Fortunately, there are many steps that you can take to avoid illegal interview questions. These include:

    • Establishing set interview questions for every candidate
    • Treat every candidate the same during the interview process
    • Take notes and document the results
    • Have more than one interviewer in the room

    Another way to help your business is to hire a Professional Employer Organization that can not only oversee employee hiring and training, but also help you shoulder the administrative burden created by key HR functions. The GMS team can help you stay up to date on the latest rules and regulations while managing everything from your company’s payroll to employee benefits plans.

    Whether you need HR services in Cincinnati or in some other location, GMS can help. Contact us today to talk to one of our experts about what we can do to help you protect your company now and prepare for the future.

  • As politics become more polarizing, small businesses can get stuck in an uncomfortable position. For every employee who can express political beliefs without creating any issues within the workplace, certain conduct can have a direct impact on your business.

    Managing political discussions in the workplace is a tricky balancing act. On one hand, different opinions and an open culture can create new relationships and creative ideas. On the other hand, certain discussions can create animosity between individuals that fractures company morale and impacts productivity. Employers must also consider potential legal protections for political speech. 

    With all these factors, it’s easy to view political debates in the workplace as ticking time bombs for your business. Fortunately, there are steps you can take to manage political discussion in the workplace and protect your business.

    A group of employees arguing after discussing politics in the workplace. 

    Understand Your Legal Responsibilities Regarding Political Discussion

    Before you can take measures to handle political activity within the workplace, it’s essential to understand what you can and can’t do in terms of managing political discussions as an employer. Certain regulations may limit your potential options for preventing problems created by heated political discussions, so it’s critical to stay compliant with existing local and federal laws.

    One of the most notable potential concerns about limiting political discussion in the workplace is the First Amendment. According to the National Law Review, “in most states, employees of private companies are not protected from discrimination based purely on political affiliation or activity.” While the First Amendment prohibits the government from restricting free speech, private employers are generally able to set their own rules regarding acceptable speech. This means that small business owners do have some control over what can be said in workplace scenarios.

    Of course, there are some notable exceptions to what private employers can prohibit in terms of political talk. To start, the National Labor Relations Act allows private employees to discuss labor-related issues, such as wages and hours. This also extends to topics like working conditions and unionization, which some may construe as political. 

    Certain states and cities also have laws in place to protect political expression. Employers should not be seen as taking any measures to discriminate against employees for their political or voting activities. In addition, many states and cities disallow employers from influencing their employees’ political decisions as well. These rules can vary by state or city, so you’ll need to review your local laws to see if your business is affected by any of the following: 

    • Laws to prohibit employers from retaliating against employees for engaging in “political activities.”
    • Laws to protect employees’ right to express “political opinions.”
    • Laws to disallow discrimination against employees based on party membership or engagement in election-related speech and political activities.

    What Small Businesses Can Do to Manage Political Discussions in the Workplace

    While existing laws create some limitations in terms of what you can and can’t prohibit, there are measures you can take to manage political debates among employees without leaving yourself in legal trouble.

    Create policies against discrimination that apply to all employee groups

    One major point of contention in political discussions gone wrong is when one or more employees view another worker’s words or actions as discriminatory. One person’s opinion may seem like harassment to another, which can create serious internal concerns. 

    While you may not be able to cleanly parse through people’s opinions, you can institute anti-discrimination and harassment policies to snuff out any egregious behavior inside and out of political discussions in the workplace and online. These policies can make it clear where your business stand when it comes to discrimination against:

    • Race
    • Gender
    • Age
    • Religion
    • Ethnicity/nationality
    • Disability/medical history
    • Marriage/civil partnership
    • Pregnancy/maternity/paternity
    • Gender identity /sexual orientation

    You should also make it clear how employees can safely report harassment in the workplace. Employers are obligated to take any harassment or discrimination claims seriously and investigate all employee complaints. If you deem that any political discussion devolved into harassment involving the aforementioned protected characteristics, you can use that as grounds to resolve the situation quickly and effectively, whether that’s a warning to the offending party or further punishment.

    It’s also important to make sure that these policies are equally applied for all employees. Every individual should be held to the same standards when it comes to discussing politics at work whether they are an entry-level employee or an executive.

    Have a policy to limit or ban visual political displays

    Political discussions don’t need casual conversations to become an issue. Visual displays such as posters, stickers, or campaign buttons can trigger unwanted conversations unless you put a policy in place to prevent these problems.

    While certain topics are protected, employers are able to ban political clothing or items on work premises. Whether the message displayed on a coffee mug, bumper sticker, or other item is positive or negative in nature, you can limit or completely prohibit these visual displays in your office or other work areas. In turn, these items won’t be able to instigate any unwanted political discussions.

    It’s also important to remember that these visual displays can extend to accidental sources as well. For example, office televisions can create an unwanted situation if you’re not careful. Be careful which types of television programs play to prevent accidental conversation starters – depending on the current political climate, it may be best to turn off these sources altogether.

    Dissuade against touchy subjects

    While difficult subjects can create meaningful conversations, there are certain topics that can quickly devolve into heated arguments. It’s best not to call out these topics in any policies – doing so may only call more attention to them for certain individuals. However, that doesn’t mean that you can’t try to diffuse any situations involving hot button issues at work.

    If a debate involving a touchy political subject arises on a public platform at work, make sure that your or some other HR representative steps in to pacify the situation. You want to make it clear that while you don’t want to hinder anyone’s political beliefs, the employees must maintain a friendly work environment and that their current discussion is creating conflict. If the employees have any concerns or continuing issues, you and any other HR representatives can meet with them in private to determine a solution that’s fair for everyone involved.

    Protect Your Business from Uncomfortable Situations

    While you can’t necessarily eliminate political discussions in the workplace, you can help limit unwanted conversations that can negatively impact your business. By setting clear, consistent policies and creating a healthy workplace environment, you can help your employees thrive even if they don’t necessarily agree on certain viewpoints.

    Of course, it’s not always easy to create and maintain comprehensive policies and oversee any disputes in the workplace. As the owner of a small business, those responsibilities can fall to you. Fortunately, GMS can help take this burden off your shoulders. Our experts can work with you to create compliant policies and protect your business. Contact GMS today to talk to one of our experts about how we can make your business simpler, safer, and stronger.