Functional Area #2 Employment & Employee Relations P1

Transcription

1 EMPLOYMENT & EMPLOYEE RELATIONS Presented by: Gina de Miranda, M.A., SPHR-CA, SHRM-SCP TPO Bilingual Consultant PHRca Instructor Employment & Employee Relations EXAM-SPECIFIC OVERVIEW Getting it in to Context EMPLOYMENT & EMPLOYEE RELATIONS This area is worth 46% of your test score Responsibilities under this functional area: Develop and implement policies, practices and procedures to comply with state laws regarding pre-employment and hiring. Develop and implement policies, practices and procedures to comply with state laws regarding employment and termination of employment. Ensure compliance with state laws regarding pre-employment and hiring, ongoing employment and termination. Ensure compliance with state harassment and discrimination prevention laws. Establish and administer documentation and records retention policies and procedures required under state law governing employment and employee relations. 1

2 EMPLOYMENT & EMPLOYEE RELATIONS This area is worth 46% of your test score Knowledge: Provisions of the Fair Employment and Housing Act (FEHA), including the interactive process and reasonable accommodations California Labor Code section 132a Whistleblower protections Pre-employment and hiring procedures (for example: drug testing, background checks, consumer credit reports, the California Investigative Consumer Reporting Agencies Act (ICRAA) and the California Consumers Reporting Act (CCRA), postings and individual notices Requirements related to privacy and security (for example: permissible employment application procedures and protection of personal data) EMPLOYMENT & EMPLOYEE RELATIONS Knowledge Continued This area is worth 46% of your test score Rules regarding employment of minors Employment Development Department (EDD) requirements Non-compete, non-disclosure, invention assignment agreements and the Uniform Trade Secrets Act Individual employee rights (for example: California's Private Attorneys General Act, language translation requirements and literacy assistance) Required supervisory training for sexual harassment prevention California WARN EMPLOYMENT & EMPLOYEE RELATIONS This area is worth 46% of your test score Knowledge Continued Required new hire and termination notices Requirements for employers with state contracts (for example: drug-free workplace, anti-discrimination requirements and wage and hour requirements) Regulations regarding use of medical marijuana Legal requirements for postings and notices Documentation and records retention requirements 2

3 CALIFORNIA S DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING The agency charged to protect the people of California from unlawful discrimination in employment, housing and public accommodations and to prevent hate-fueled violence. WHAT IS THE DIFFERENCE BETWEEN THE DFEH AND THE FEHA? FEHA is the Act Fair Employment and Housing Act DFEH is the Department that administers the Fair Employment and Housing Act THE PROTECTED CLASSES UNDER THE FAIR EMPLOYMENT AND HOUSING ACT Race Color Religion Sex Gender Gender Identity Gender Expression Sexual Orientation Marital Status National Origin Ancestry Mental and Physical Disability Medical Condition Age Military or Veteran Status Pregnancy, Childbirth, or Related Medical Condition Denial of Medical and Family Care Leave Pregnancy Disability Leave Retaliation for protesting illegal discrimination related to one of these categories Reported patient abuse in tax supported institutions 3

4 COVERED EMPLOYERS UNDER THE FEHA A COVERED employer is: Private California employers with five or more employees during 20 or more calendar weeks All public employers Private employers from other states with one employee in California WHICH EMPLOYERS are GENERALLY EXCLUDED FROM FEHA? Religious Nonprofit Organizations WHAT are PROHIBITED EMPLOYMENT PRACTICES BASED on PROTECTED STATUS? Recruitment Hiring Promotion Renewal of employment Selection for training or apprenticeship Discharge Discipline Tenure, Terms, Conditions, or Privileges of employment 4

5 CALIFORNIA S REQUIREMENTS for SEXUAL HARASSMENT TRAINING ALL EMPLOYEES Must Receive DFEH s Sexual Harassment The Facts About Sexual Harassment Pamphlet AB 1825 Employers with 50+ employees Provide 2 hours of interactive training To ALL Supervisors Every 2 Years New Supervisors: Within 6 Months of Promotion to their New Position EXAMPLES OF RELIGIOUS DISCRIMINATION UNDER CALIFORNIA LAW Repetition of Offensive Remarks/Jokes Segregation Based on Religion Failure to Accommodate: Requests for flexible scheduling Voluntary shift substitution Job reassignment requests Requests for workplace policy modifications THE DFEH COMPLAINT PROCESS The DFEH Complaint Process: Intake Filing Investigation Conciliation Litigation Remedies Right to Sue Process 5

6 RECRUITMENT & SELECTION Non-Discriminatory (State & Federal) Uphold At-Will Avoid spoken/unspoken misleading enticements to leave current employment BEST PRACTICES: Job Description (ADA Compliant) Legally Sufficient Employment Application Standardized/Consistent Sourcing Screening Interviewing Job Offer On-Boarding Training for ALL Hiring Parties CALIFORNIA S ONLINE PRIVACY PROTECTION ACT This law was passed in 2003 and took effect in It requires companies (including employers) to provide information about what organizations that the website will be sharing this information with and what the website s tracking policies are. Any website that fails to comply with this policy, must post such a policy within 30 days of notification by the state. BACKGROUND CHECKS & TESTING Background Checks: ICRAA California Investigative Consumer Reporting Agencies Act CA employers may not ask an outside agency (i.e.: TPO) to perform a background or credit check on an applicant or employee in CA without first obtaining the individual s consent. Proper notice must be given to the individual. Requires providing the individual an opportunity to request a copy of the report. The employer s notice must be clear and conspicuous on a form that contains only the disclosure. The disclosure must include very specific information. FCRA The Fair Credit Reporting Act (FCRA) A federal law that governs how a credit reporting agency (CRA) handles credit information. It is designed to protect the integrity and privacy of credit information. 6

7 CREDIT REPORTS Can Only Be Obtained For: State Department of Justice jobs Managerial positions that qualify for the executive exemption under California law Sworn Peace Officers Positions that involve regular access to personal/financial information like SS, credit cards, finances, dates of birth Positions that require the employee to be the named signatory on the employer s bank or credit card Positions involving access to confidential or proprietary company information Positions that involve regular access to $10,000 or more in cash Employees of financial institutions APPLICANT CONSENT & DISCLOSURES The consent form that the applicant signs must disclose the following: The employer s intention to obtain an investigative consumer report That this consumer report is being sought for permissible employment purposes That this report may contain information on the employee or applicant s character, general reputation, personal characteristics and lifestyle The name, address and telephone number of the reporting agency. The nature and scope of the investigation being requested Obligations of the agency, such as how the consumer can view the file if they so desire. AND, if the employee wishes a copy of the report, the employer must send it to the employee within three business days of receipt by the potential employer TESTING Testing: There is a fine line between thoroughly reviewing a candidate and violating his/her privacy. Any tests used must have validity with reference to the job for which the candidate is being considered. Agility tests for accounting clerks will not fly. The test must be validated (i.e. proven) to measure the personality trait or ability that it purports to measure and the job must require that particular trait, skill or ability 7

8 CRIMINAL RECORDS You will need to know: U.S.C 1829 Labor Code Section It is unlawful for an employer or other covered entity to see information about an applicant regarding any: (a) Arrest or detention that did not result in a conviction (b)any conviction for which the record has been judicially sealed, expunged or statutorily eradicated (juvenile offense records; misdemeanor conviction for which the probation has been completed or otherwise discharged and arrest for which pre-trial diversion has been successfully completed). DRUG & POLYGRAPH TESTS Drug Tests: Are generally permissible pre-employment if there is a lawful written policy, the job is offered and the potential employee consents Must be consistently applied so as not to look discriminatory May not be invasive or violate potential employee s privacy rights Polygraph Tests: Are prohibited before or after employment in California May not be a condition for employment May not be a condition for continued employment Are notoriously unreliable MEDICAL MARIJUANA is NOT considered a protected activity under California employment law. ADA & FEHA protections cover employees who: Previously abused Successfully rehabilitated Do not currently use 8

9 EMPLOYMENT OFFERS Should Include: Job Title Amount of compensation and its basis Full time or part-time status Department that the employee will work in and his/her supervisor Whether the employee is exempt or non-exempt An At Will statement Subject to proof that the employee has the right to work in this country (IRCA) Contingent upon passing a drug screen (if applicable) or other tests if applicable Commission plan if in sales ONBOARDING Preparation Orientation Engagement Follow-up PRIVACY LAWS Pre-hire Screening Background Checks Testing Investigations & Surveillance during Employment Sexual Harassment Investigations Electronic Communications Monitoring Person Information Lifestyle Regulations 9

10 E-VERIFY IN CALIFORNIA EMPLOYERS May only utilize the federal E-Verify system after a conditional offer of employment has been made, or When doing so is required under federal law or as a condition for receiving federal funds. Are not allowed to utilize the system to verify the status of existing employees. Must inform employees of any adverse consequence from e-verify or receive a penalty of $10,000. E-verify is voluntary except for companies with Federal contracts and some state contracts. 10