SPHR Exam Prep: Workforce Planning and Employment

This chapter is from the book 

Workforce planning and employment (WPE) speaks to HR’s responsibility to ensure integrated, seamless, and effective recruitment, hiring, onboarding/orientation, and exit processes that support the short-term, long-term, emerging, and strategic objectives of the organization.

Many who are working toward the SPHR credential may find that their roles are more strategic. Even then, however, it is essential to maintain an awareness of tactical and transactional roles. Why? There are many potential reasons. Primarily, however, SPHR-level HR professionals may find themselves managing HR professionals who are performing roles that are largely tactical or transactional in nature. As such, it is essential to maintain awareness on all three levels—in large part because SPHR-level HR professionals might have more opportunity to impact how this work gets done…and how everyone’s contributions can have greater strategic impact.

An organization’s overall success will be determined to a significant degree by its ability to have the right people, with the right skills, in the right places, at the right times. Although this statement sounds somewhat straightforward, let’s take a closer look at what it actually means.

“To have” in this context can refer to hiring employees to work a traditional work arrangement, hiring employees to work some sort of nontraditional work arrangement, or retaining nonemployees to perform services on an as-needed basis (consultants). Although most organizations secure their “people resources” through traditional employment relationships, many organizations are also augmenting this approach with nontraditional arrangements, such as consulting services.

“The right people, with the right skills” refers to employing or contracting with individuals who possess and demonstrate the knowledge, skills, abilities, and behavioral characteristics needed to support the organization’s mission and to attain the organization’s objectives. Employing individuals who don’t have the necessary knowledge, skills, abilities, and behavioral characteristics can be problematic (or, at the very least, challenging). Employing—and retaining—individuals who possess skills that they want to put to use but that aren’t needed can be equally—and sometimes even more—problematic.

“In the right places, at the right times” speaks to the importance of analyzing short-term and long-term organizational needs to ensure that the organization is neither overstaffed nor understaffed at any given moment. In this context, the terms “overstaffing” and “understaffing” can refer to the number of people employed, as well as the skills that those individuals bring to the organization.

Achieving this delicate balance requires a considerable amount of planning. It also requires that HR professionals continually maintain awareness of the organization’s mission, as well as its short-term, long-term, and emerging goals. In this way, HR professionals—in close collaboration with the leaders and managers of the organization—can determine how to strategically support the organization’s goals.

Effective workforce planning ensures that the organization has the “people resources” in place that will enable it—through those very same people—to fulfill its mission and achieve its objectives. Workforce planning encompasses myriad activities relating to how employees enter into—and exit from—the organization. It looks at these functions primarily from the perspective of meeting the organization’s needs and ideally takes a long-term (more tactical, or perhaps transformational, in nature)—and a short-term (more transactional in nature)—approach.

By effectively performing responsibilities relating to workforce planning and employment, HR professionals can seize another opportunity to forge a business partnership with their internal clients. For this to happen, HR professionals must take a deliberate and consistent approach to workforce planning that starts with the organization’s strategic plan and with how HR can align its efforts and work product with that plan.

Determining “what” and “who” the organization needs to achieve its goals is more involved than it might appear. Accurate forecasting requires selecting from among numerous nonmathematical (qualitative) and mathematical (quantitative) analyses.

To formulate and execute these plans, HR professionals must be well versed in those laws that impact our profession and that affect the ways in which we source, hire, promote, and separate/terminate employees. Equal employment opportunity is the foundation on which these laws have been built and constitutes one critical element of every HR professional’s knowledge base.

Laws, however, are not static. Rather, they are continually interpreted and reinterpreted—by the courts and even by administrative agencies. As such, HR professionals have a professional and ethical mandate to familiarize themselves with important cases from the past and to monitor new cases, proposals, and regulations. In this way, we will be better equipped to understand and appreciate new interpretations of these laws and thus maintain currency with respect to how they will affect the workplace and the ways in which we choose to carry out our strategic, tactical, and transactional roles.

Congress has passed numerous pieces of federal legislation specifically designed to eradicate discrimination on the basis of a variety of factors. This legislation—while diverse in terms of the areas that are spanned—shares one thing in common: none of the characteristics or traits addressed by these laws has any impact on a person’s ability to do the job. Each piece of legislation has brought the workplace one step closer to ensuring that hiring, promotional, and all other employment-related decisions are based solely on job-related factors.

Relevant Laws and Executive Orders

As you move into this section, keep in mind that it includes relevant laws, case law, and executive orders (EOs). Unlike laws, which are passed by Congress, EOs are enacted by the president. They do carry, however, the same weight as law. EOs provide guidance and assistance to federal agencies relative to the execution of their duties and to employers relative to what they must do to be in compliance with the executive order. HR professionals need to be fluent with respect to EOs pertaining to employment issues.

Title VII of the Civil Rights Act, 1964

Although it wasn’t the first antidiscrimination law, Title VII of the Civil Rights Act of 1964 was a landmark piece of legislation prohibiting employment discrimination on the basis of race, color, religion, sex, or national origin. It was the most inclusive piece of antidiscrimination legislation up to that time (and, some might argue, perhaps even up to this time). In short, Title VII radically changed the workplace.

Title VII applies to private employers with 15 or more employees. Title VII, as amended, also specifically applies to federal, state, and local governments, as well as to employment agencies and labor organizations, education institutions that employ 15 or more individuals, private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

According to the EEOC:

• “This law makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.” (www.eeoc.gov)

The Civil Rights Act of 1964 established the first “protected classes” and created the Equal Employment Opportunity Commission (EEOC). As published on its website, the EEOC’s mission is “to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws and through education and technical assistance.” (www.eeoc.gov)

Title VII of the Civil Rights Act of 1964 prohibits discrimination in all aspects of the employment relationship, including

• Hiring and firing
• Compensation, assignment, or classification of employees
• Transfer, promotion, layoff, or recall
• Job advertisements
• Recruitment
• Testing
• Use of company facilities
• Training and apprenticeship programs
• Fringe benefits
• Pay, retirement plans, and disability leave
• Other terms and conditions of employment

Title VII also prohibits retaliation against an employee who files a charge of discrimination, who participates in an investigation, or who opposes discriminatory practices.

Under rare circumstances, exceptions can be made to Title VII requirements. Table 2.1 includes some of these exceptions.

TABLE 2.1 Exceptions to Title VII

Type of Exception	Definition	Example
Bona fide occupational qualification (BFOQ)	Certain job requirements that are mandated by business necessity may have an unintended discriminatory (disparate) impact upon applicants or employees on the basis of gender, religion, or national origin.	Hiring females to be bathroom attendants in a women’s restroom. Hiring a person of a particular religious denomination to be a minister to members of that faith.
Professionally developed test of abilities	Job-related tests that ascertain skill or ability may have an unintended discriminatory (disparate) impact upon people on the basis of gender, religion, or national origin.	Strength or physical skills or agility tests if those tests assess skills that have been shown to be necessary for successful performance of a particular position—as determined by the actual performance of current or former employees.
Seniority systems	Bona fide seniority or merit-based systems that are not intended or designed to discriminate unlawfully.	Bona fide collective bargaining agreements.
Piece-rate systems	Compensation programs under which individuals are paid according to their production volume.	Certain assembly line or factory assignments.

EEO Reporting Requirements

As described at www.eeoc.gov, the EEOC has established the following reporting requirements:

• EEO-1 Report: Otherwise known as The Employer Information Report, the EEO-1 is submitted to the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs.

  “In 2007, the EEO-1 report was modified. The major changes involved dividing the job category of “Officials and Managers” into two levels. Revised race/ethnic categories were also implemented. The EEOC plans to update the other reports to use the same race and ethnic categories as the new EEO-1 but, before doing so, will give respondents a full reporting cycle to change their recordkeeping.” (www.eeoc.gov)

  “The EEO-1 Joint Reporting Committee is now using the 2010 Job Classification Guide which maps 2010 SOC and Census Job Codes and Titles into the Ten EEO-1 Survey Job Categories. The new guide is found under “Additional Documentation” heading.” (www.eeoc.gov)

• EEO-3 Report: Formally known as the Local Union Report, the EEO-3 is a biennial survey conducted every other year in the even calendar years.

  “EEOC collects labor force data from Local Referral Unions with 100 or more employees within 50 U.S. states and District of Columbia. The reporting provides information on their employment totals, employees’ job category, and sex and race/ethnic groups as of December 31 of the preceding year of the survey year.” (www.eeoc.gov)

• EEO-4 Report: The EEO-4 is collected in odd-numbered years from state and local governments “with 100 or more employees within 50 U.S. states and District of Columbia. The reporting agencies provide information on their employment totals, employees’ job category and salary by sex and race/ethnic groups as of June 30 of the survey year.” (www.eeoc.gov)
• EEO-5 Report: The EEO-5 report is a joint requirement of the EEOC and the Office for Civil Rights (OCR) of the Department of Education. It is conducted biennially, in the even numbered years, and covers all public elementary and secondary school districts with 100 or more employees in the United States.

According to the EEOC, the most commonly known and filed of these reports is the EEO-1. Therefore, it is the one with which HR professionals need to be best acquainted and most familiar.

The EEO-1…A Closer Look

The EEO-1 report must be filed by September 30 of each year by all employers with 100 or more employees. Additionally, federal contractors with at least 50 employees and federal contracts of at least $50,000 per year must also file an EEO-1 report.

Executive Order 11246, 1965

EO 11246, the first employment-related EO, is administered by the Office of Federal Contract Compliance Programs (OFCCP). It established two key requirements for federal contractors and subcontractors that have contracts in excess of $10,000 during any one-year period:

• These employers are prohibited from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. This requirement reconfirmed the nondiscrimination requirements established by Title VII of the Civil Rights Act of 1964.

  “Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the federal government in any 12-month period that have a total value of more than $10,000 are required to post the EEO notice, Equal Employment Opportunity is the Law (PDF). Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also post the EEO notice.” (www.dol.gov)

• These employers must take affirmative steps—or actions—in advertising open positions, recruiting, employment, training, promotion, compensation, and termination of employees to ensure the elimination of employment barriers for women and minorities (individuals who we might refer to today as “people of color”).

Uniform Guidelines on Employee Selection Procedures, 1978

The Uniform Guidelines on Employee Selection Procedures was intended to address the need to establish a uniform set of principles relative to all elements of the selection process—including interviewing, preemployment testing, and performance appraisal. One key purpose of the Uniform Guidelines was to deal with the concept of “adverse impact” (also known as “disparate impact”) as it pertains to the employment process. Another was to ensure that interview and selection processes are reliable (consistent) and valid:

• “These guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures.
• These guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results. However, all users are encouraged to use selection procedures which are valid, especially users operating under merit principles.” (www.dol.gov)

As mentioned earlier, the key purpose of the Uniform Guidelines was to deal with the concept of “adverse impact” (also known as “disparate impact”) as this concept pertains to the employment process and to ensure that interview and selection processes are reliable (consistent) and valid. For more information on this concept, see the section titled “Disparate (or “Adverse”) Impact.”

Reliability

The degree to which a selection process or instrument is consistent is reflective of the degree to which that instrument is reliable.

All interviews for a position should generate consistent information for decision-making—even if several interviewers are involved, and even when all interviewers don’t meet every candidate.

In this context, one important function of a well-defined and well-documented interviewing process is to ensure the most reliable results possible, even given the inevitable differences among interviewers. This is one reason why it is critical that interviewers prepare and consistently use a list of job-related questions that will be asked of all candidates for a particular position.

Validity

Employment interviews measure applicants’ skills. Valid interviews ensure that those skills relate meaningfully and clearly to the skills that are required to perform a particular job.

Validity establishes and demonstrates a clear relationship between performance on the selection procedure and performance on the job. Although it is difficult to establish good measures of validity, it is possible to make a case for validity if the interview has the following characteristics:

• It is based on job analysis.
• It contains questions that provide evidence about important job-related skills.
• Interview information is systematically related to a specific job.

HR professionals need to be familiar with at least the following four types of validity.

Content Validity

A selection procedure has content validity if it assesses a candidate’s ability to perform representatively sampled significant parts of the job.

Example: A typing test for an administrative assistant’s position would demonstrate content validity.

Criterion-Related Validity

A selection procedure has criterion-related validity if scores achieved by incumbents correlate highly with their respective job performance.

Example: A requirement that candidates have fluency in a particular foreign language would have criterion-related validity if it were shown that people who demonstrate fluency in that language actually perform better on the job than those who do not demonstrate fluency.

Construct Validity

A selection procedure has construct validity if it measures the degree to which the test taker possesses a particular psychological trait (if, of course, it can be shown that the trait is required for successful performance of the position). More specifically, according to the EEOC Uniform Employee Selection Guidelines:

• “Evidence of the validity of a test or other selection procedure through a construct validity study should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated.” (www.eeoc.gov)

Example: An instrument that assesses the degree to which candidates for a car salesperson’s position are persistent would demonstrate construct validity.

Predictive Validity

A selection procedure has predictive validity if the predictions that it makes actually manifest themselves in the test takers’ subsequent performance.

Example: An instrument that is designed to assess the degree to which candidates for a position possess and demonstrate empathy would have predictive validity if individuals who scored well on this test demonstrated, after being hired, that they actually did possess and demonstrate this characteristic.

The EEOC has published the fact sheet shown in the following sidebar on “Employment Tests and Selection Procedures.”

Governing EEO Laws

This section will focus on laws that relate to Equal Employment Opportunity in the workplace. These laws span more than 50 years—and growing.

Please note: the laws discussed in this book are effective at the federal level. Although state or local laws cannot be less generous, they can—and in many cases are—more generous. The HRCI certification exam will not address state and local laws, but HR professionals must be well versed with the laws that affect the geographic areas for which they are responsible.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.

With respect to tests in particular, Title VII permits employment tests as long as they are not “designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(h). Title VII also imposes restrictions on how to score tests. Employers are not permitted to (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin. Id. at §2000e-2(l).

Title VII prohibits both “disparate treatment” and “disparate impact” discrimination.

Title VII prohibits intentional discrimination based on race, color, religion, sex, or national origin. For example, Title VII forbids a covered employer from testing the reading ability of African American applicants or employees but not testing the reading ability of their white counterparts. This is called “disparate treatment” discrimination. Disparate treatment cases typically involve the following issues:

• Were people of a different race, color, religion, sex, or national origin treated differently?
• Is there any evidence of bias, such as discriminatory statements?
• What is the employer’s reason for the difference in treatment?
• Does the evidence show that the employer’s reason for the difference in treatment is untrue and that the real reason for the different treatment is race, color, religion, sex, or national origin?

Title VII also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity.” This is called “disparate impact” discrimination.

Disparate impact cases typically involve the following issues:

• Does the employer use a particular employment practice that has a disparate impact on the basis of race, color, religion, sex, or national origin? For example, if an employer requires that all applicants pass a physical agility test, does the test disproportionately screen out women? Determining whether a test or other selection procedure has a disparate impact on a particular group ordinarily requires a statistical analysis.
• If the selection procedure has a disparate impact based on race, color, religion, sex, or national origin, can the employer show that the selection procedure is job related and consistent with business necessity? An employer can meet this standard by showing that it is necessary to the safe and efficient performance of the job. The challenged policy or practice should therefore be associated with the skills needed to perform the job successfully. In contrast to a general measurement of applicants’ or employees’ skills, the challenged policy or practice must evaluate an individual’s skills as related to the particular job in question.

• If the employer shows that the selection procedure is job related and consistent with business necessity, can the person challenging the selection procedure demonstrate that there is a less discriminatory alternative available? For example, is another test available that would be equally effective in predicting job performance but would not disproportionately exclude the protected group?

  See 42 U.S.C. § 2000e-2 (k). This method of analysis is consistent with the seminal Supreme Court decision about disparate impact discrimination, Griggs v. Duke Power Co., 401 U.S. 424 (1971).

• In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII. See 29 C.F.R. Part 1607. UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory.
• UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job related and consistent with business necessity. These methods of demonstrating job relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.

Title I of the Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) prohibits private employers and state and local governments from discriminating against qualified individuals with disabilities on the basis of their disabilities.

The ADA specifies when an employer may require an applicant or employee to undergo a medical examination (a procedure or test that seeks information about an individual’s physical or mental impairments or health). The ADA also specifies when an employer may make “disability-related inquiries” (inquiries that are likely to elicit information about a disability).

When hiring, an employer may not ask questions about disability or require medical examinations until after it makes a conditional job offer to the applicant. 42 U.S.C. §12112 (d)(2).

After making a job offer (but before the person starts working), an employer may ask disability-related questions and conduct medical examinations as long as it does so for all individuals entering the same job category. Id. at § 12112(d)(3).

With respect to employees, an employer may ask questions about disability or require medical examinations only if doing so is job related and consistent with business necessity. Thus, for example, an employer could request medical information when it has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition, or when an employer receives a request for a reasonable accommodation and the person’s disability or need for accommodation is not obvious. Id. at § 12112(d)(4).

The ADA also makes it unlawful to do the following:

• Use employment tests that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the test, as used by the employer, is shown to be job related and consistent with business necessity. 42 U.S.C. § 12112(b)(6).
• Fail to select and administer employment tests in the most effective manner to ensure that test results accurately reflect the skills, aptitude or whatever other factor that such test purports to measure, rather than reflecting an applicant’s or employee’s impairment. Id. at § 12112(b)(7).
• Fail to make reasonable accommodations, including in the administration of tests, to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such accommodation would impose an undue hardship. Id. at § 12112(b)(5).

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age (40 and over) with respect to any term, condition, or privilege of employment. Under the ADEA, covered employers may not select individuals for hiring, promotion, or reductions in force in a way that unlawfully discriminates on the basis of age.

The ADEA prohibits disparate treatment discrimination, i.e., intentional discrimination based on age. For example, the ADEA forbids an employer from giving a physical agility test only to applicants over age 50, based on a belief that they are less physically able to perform a particular job, but not testing younger applicants.

The ADEA also prohibits employers from using neutral tests or selection procedures that have a discriminatory impact on persons based on age (40 or older), unless the challenged employment action is based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005). Thus, if a test or other selection procedure has a disparate impact based on age, the employer must show that the test or device chosen was a reasonable one. (www.eeoc.gov)

Age Discrimination in Employment Act, 1967

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age for employees and job applicants who are age 40 and above. There is no upper cap on age limit (although there initially was). Under the ADEA, it is unlawful to discriminate against a person because of her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

The ADEA also makes it unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA does permit employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

ADEA covers private employers with 20 or more employees, state and local governments (including school districts), employment agencies, and labor organizations.

The EEOC has published the following Facts About Age Discrimination Fact Sheet:

• The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.
• It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
• The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

• ADEA protections (www.eeoc.gov) include the following:

  • Apprenticeship programs
  • Job notices and advertisements
  • Preemployment inquiries
  • Benefits
  • Waivers of ADEA rights

Apprenticeship Programs

It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.

Job Notices and Advertisements

The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances in which age is shown to be a BFOQ that’s reasonably necessary to the normal operation of the business.

Preemployment Inquiries

The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose rather than for a purpose prohibited by the ADEA.

Benefits

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

Waivers of ADEA Rights

An employer may ask an employee to waive her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must

• Be in writing and be understandable
• Specifically refer to ADEA rights or claims
• Not waive rights or claims that may arise in the future
• Be in exchange for valuable consideration
• Advise the individual in writing to consult an attorney before signing the waiver
• Provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.

Fair Credit Reporting Act (FCRA), 1970

The Fair Credit Reporting Act (FCRA) was the first law passed with the intention of ensuring fair and accurate consumer reporting. This law is particularly relevant to workforce planning and employment because some employers base hiring and promotion decisions, in part, on credit reports.

The FCRA is administered by the Federal Trade Commission, which has published the following information for employers:

• https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know

Equal Employment Opportunity Act, 1972

The Equal Employment Opportunity Act of 1972 expanded the reach of Title VII of the Civil Rights Act of 1964 to include educational institutions; state, local and federal governments; and private employers who employ 15 or more employees. This Act also allows charging parties a longer period of time within which to file claims, and “amends its sex discrimination guidelines to prohibit employers from imposing mandatory leaves of absence on pregnant women or terminating women because they become pregnant. EEOC also states it is sex discrimination for an employer to give women disabled by pregnancy less favorable health insurance or disability benefits than that provided to employees disabled by other temporary medical conditions.” (www.eeoc.gov)

Rehabilitation Act, 1973

The Rehabilitation Act of 1973 prohibits discrimination on the basis of physical and mental disabilities.

• Section 503: Requires affirmative action and prohibits employment discrimination by federal government contractors and subcontractors with contracts of more than $10,000. According to the EEOC, “Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.” (www.eeoc.gov)
• Section 504: States that “no otherwise qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under” any program or activity that either receives federal financial assistance or is conducted by any executive agency or the United States Postal Service.
• Section 508: Requires that federal agencies’ electronic and information technology is accessible to people with disabilities, including employees and members of the public.

Pregnancy Discrimination Act, 1978

The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII of the Civil Rights Act of 1964 to specifically prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions.

In short, it requires that employers treat applicants or employees who are pregnant or otherwise affected by related conditions in the same manner as other applicants or employees with other short-term conditions. This Act covers employers with 15 or more employees, including state and local governments. It applies to employment agencies, labor organizations, and the federal government.

Pregnancy-related protections include the following.

Hiring

An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of coworkers, clients, or customers.

Pregnancy and Maternity Leave

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

• If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.
• Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
• Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

Health Insurance

Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.

• Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.
• The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.
• Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Fringe Benefits

Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.

• If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
• Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
• It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Immigration Reform and Control Act (IRCA), 1986

The Immigration Reform and Control Act (IRCA) prohibits employers from discriminating against job applicants on the basis of national origin and from giving preference to U.S. citizens. IRCA also established penalties for those who knowingly hire illegal aliens (people who are referred to, by some individuals and organizations, as “undocumented workers,” rather than “illegal aliens”).

IRCA accomplishes these objectives through several means. The most visible process requires employers to review and record information/documentation submitted by employees that establish that employee’s identity and eligibility to work in the United States. The form used to record this information is known as the I-9 form. The I-9 form must be completed within three business days of the employee’s date of hire (but not before the employer starts). The employee must complete certain specific portions of the I-9, and the employer must complete other specific portions of the I-9.

The government revised the I-9 form in 2013 (see Figure 2.1).

Drug-Free Workplace Act, 1988

The Drug-Free Workplace Act requires federal contractors (with contracts of $100,000 or more) and individuals and organizations that are awarded federal grants (of any size) to agree to maintain a workplace free of illegal drugs.

• The Department of Labor (DOL) provides the following guidelines relative to the Drug-Free Workplace Act: “The Act does not apply to those who do not have, nor intend to apply for, contracts/grants from the Federal government. The Act also does not apply to subcontractors or subgrantees.

Because the Act applies to each contract or grant on a case-by-case basis, you will need to determine coverage for each federal contract or grant you have or for which you are applying. If your company has a grant that is covered under the Act and a contract that is not, the Act does not cover the entire company but rather only employees working on the covered grant. Even though you may not be required to provide a drug-free workplace for all your employees, you may find it cost effective to do so — and a good way to protect your workers and your business profits.

Although all individuals with federal contracts or grants are covered, requirements vary depending on whether the contractor or grantee is an individual or is an organization (www.dol.gov).

These requirements can vary substantially. According to the DOL, “Although all covered contractors and grantees must maintain a drug-free workplace, the specific components necessary to meet the requirements of the Act vary based on whether the contractor or grantee is an individual or an organization. The requirements for organizations are more extensive, because organizations have to take comprehensive, programmatic steps to achieve a workplace free of drugs.”

HR professionals should partner with organizational leadership/counsel to ascertain the requirements that pertain to them (if any) under this Act.

Employee Polygraph Protection Act, 1988

Administered by the Department of Labor, the

• “EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.
• “Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, and so on,) that resulted in specific economic loss or injury to the employer. Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.”

Worker Adjustment and Retraining Notification Act (WARNA), 1988

The Worker Adjustment and Retraining Notification Act (WARNA) mandates employer notification requirements under specific circumstances involving mass layoffs and plant closings, thus giving displaced workers time to make arrangements for other employment. (“Arrangements,” in this context, span a spectrum of possibilities ranging from transferring to another worksite to participating in retraining programs, or anything in between or beyond.)

WARNA covers employers with 100 or more full-time employees (or the equivalent—100 or more full-time and part-time employees who work a combined total of 4,000 or more hours per week).

WARNA requires these employers to give employees at least 60 days’ written notice before either a mass layoff or plant closing. According to the DOL, a mass layoff occurs under the following sets of circumstances:

• A covered employer must give notice if there is to be a mass layoff that does not result from a plant closing but that will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50–499 employees if they make up at least 33% of the employer’s active workforce. Again, this does not count employees who have worked less than 6 months in the last 12 months or employees who work an average of less than 20 hours a week for that employer. These latter groups, however, are entitled to notice.
• An employer also must give notice if the number of employment losses that occur during a 30-day period fails to meet the threshold requirements of a plant closing or mass layoff, but the number of employment losses for 2 or more groups of workers, each of which is less than the minimum number needed to trigger notice, reaches the threshold level, during any 90-day period, of either a plant closing or mass layoff. Job losses within any 90-day period will count together toward WARN threshold levels unless the employer demonstrates that the employment losses during the 90-day period are the result of separate and distinct actions and causes.

WARNA is also triggered in the event of a plant closing, which occurs when a covered employer determines that an employment site (or one or more facilities or operating units within an employment site) will be shut down, if the shutdown will result in an employment loss (as defined later) for 50 or more employees during any 30-day period. This does not count employees who have worked less than 6 months in the past 12 months or employees who work an average of less than 20 hours a week for that employer. These latter groups, however, are entitled to notice.

Within the context of WARNA, the DOL defines an employment loss as

• An employment termination, other than a discharge for cause, voluntary departure, or retirement
• A layoff exceeding 6 months
• A reduction in an employee’s hours of work of more than 50% in each month of any 6-month period

The DOL also cites certain exceptions to WARNA:

• “An employee who refuses a transfer to a different employment site within reasonable commuting distance does not experience an employment loss. An employee who accepts a transfer outside this distance within 30 days after it is offered or within 30 days after the plant closing or mass layoff, whichever is later, does not experience an employment loss. In both cases, the transfer offer must be made before the closing or layoff, there must be no more than a 6 month break in employment, and the new job must not be deemed a constructive discharge. These transfer exceptions from the “employment loss” definition apply only if the closing or layoff results from the relocation or consolidation of part or all of the employer’s business.” (www.dol.gov)

Under WARNA, notice must be given to

• “…the chief elected officer of the exclusive representative(s) or bargaining agency(s) of affected employees and to unrepresented individual workers who may reasonably be expected to experience an employment loss. This includes employees who may lose their employment due to ‘bumping,’ or displacement by other workers, to the extent that the employer can identify those employees when notice is given. If an employer cannot identify employees who may lose their jobs through bumping procedures, the employer must provide notice to the incumbents in the jobs which are being eliminated. Employees who have worked less than 6 months in the last 12 months and employees who work an average of less than 20 hours a week are due notice, even though they are not counted when determining the trigger levels.
• “The employer must also provide notice to the State dislocated worker unit and to the chief elected official of the unit of local government in which the employment site is located.” (www.doleta.gov)

The DOL provides the following guidance with respect to required notification periods under WARN Act:

• “With three exceptions, notice must be timed to reach the required parties at least 60 days before a closing or layoff. When the individual employment separations for a closing or layoff occur on more than one day, the notices are due to the representative(s), State dislocated worker unit and local government at least 60 days before each separation. If the workers are not represented, each worker’s notice is due at least 60 days before that worker’s separation.
• “The exceptions to 60-day notice are:
• (1) Faltering company. This exception, to be narrowly construed, covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings;
• (2) Unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and
• (3) Natural disaster. This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.
• “If an employer provides less than 60 days advance notice of a closing or layoff and relies on one of these three exceptions, the employer bears the burden of proof that the conditions for the exception have been met. The employer also must give as much notice as is practicable. When the notices are given, they must include a brief statement of the reason for reducing the notice period in addition to the items required in notices.” (www.doleta.gov)

Americans with Disabilities Act (ADA), 1990

The Americans with Disabilities Act (ADA) guarantees equal opportunity for qualified individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.

The EEOC has proudly described the ADA as “the world’s first comprehensive civil rights law for people with disabilities” and likens it to the Emancipation Proclamation for people with disabilities.

The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. In addition, the ADA’s nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. According to the EEOC, Title I of the ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

Title I also covers medical examinations and inquiries, as well as drug and alcohol abuse:

• Medical examinations and inquiries: Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.
• Drug and alcohol abuse: Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees. (www.eeoc.gov)

Title V of the ADA provides additional instructions with respect to its enforcement of the ADA by the EEOC, the federal agency charged with enforcing the employment provisions of the ADA.

The ADA also renders it unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

At a minimum, HR professionals need to develop a solid understanding of the basic terminology used throughout the ADA to be able to effectively implement its provisions—and to move beyond simple compliance (“transactional”) toward a more strategic application of the ADA (“tactical,” or perhaps even “transformational”).

Individual with a Disability

According to the EEOC, an “individual with a disability” is a person who

• Has a physical or mental impairment that substantially limits one or more major life activities
• Has a record of such an impairment
• Is regarded as having such an impairment

Qualified Person

To be a considered a “qualified person,” a candidate must meet minimum job requirements (education, experience, licenses, and so forth) and must be able to perform the essential functions of the position with or without reasonable accommodation.

Reasonable Accommodation

A reasonable accommodation represents a change in the way that one or more responsibilities relating to the execution of a position is performed, so as to enable a person with a disability to perform the essential functions of the position. Accommodations, however, do not have to be adopted if they cause undue hardship to the organization.

Undue Hardship

An undue hardship would be caused by an accommodation that would create significant difficulty (enough to disrupt business operations); result in a significant financial outlay; or change something about the essential nature of the business. If this language seems unclear, it is. Even the language drawn directly from the EEOC website relative to undue hardship is somewhat ambiguous: “Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.” Perhaps this could be rephrased to say “it depends”—because it does.

Major Life Activities

According to the EEOC, “major life activities” include—but are not necessarily limited to— walking, seeing, hearing, breathing, caring for oneself, performing manual tasks, sitting, standing, lifting, learning, and thinking. Major bodily functions are also considered to be a major life activity. Furthermore, according to the EEOC, “the determination of whether an individual’s (condition) substantially limits a major life activity is based on the limitations imposed by the condition when its symptoms are present (disregarding any mitigating measures that might limit or eliminate the symptoms).” (www.eeoc.gov)

Civil Rights Act of 1991

The Civil Rights Act of 1991 significantly expanded employees’ rights and remedies under Title VII of the Civil Rights Act of 1964. In addition to establishing the right for plaintiffs in Title VII cases to enjoy jury trials, it allowed for plaintiffs to be awarded compensatory and punitive damages (which is limited according to the size of the employer’s workforce and which caps at $300,000 per individual for compensatory and punitive damages, combined).

Compensatory damages are designed to “make the employee whole” with respect to lost wages, benefits, and other expenses and losses. Punitive damages, as the name implies, are intended to punish employers who violate the Act.

• “In addition, the 1991 Act added a new subsection to Title VII, codifying the disparate impact theory of discrimination, essentially putting the law back as it had been prior to Wards Cove. And in response to Price-Waterhouse, the Act provided that where the plaintiff shows that discrimination was a motivating factor for an employment decision, the employer is liable for injunctive relief, attorney’s fees, and costs (but not individual monetary or affirmative relief) even though it proves it would have made the same decision in the absence of a discriminatory motive. The Act also provided employment discrimination protection to employees of Congress and some high-level political appointees. Lastly, Title VII and ADA coverage was extended to include American and American-controlled employers operating abroad.” (www.eeoc.gov)

Family and Medical Leave Act (FMLA), 1993

The Family and Medical Leave Act (FMLA) entitles eligible employees (who work for covered employers) up to 12 weeks of unpaid, job-protected leave during any 12-month period for one or more of the following reasons:

• The birth and care of the newborn child of the employee
• Placement with the employee of a son or daughter for adoption or foster care
• Care for an immediate family member (spouse, child, or parent) with a serious health condition
• Medical leave when the employee is unable to work because of a serious health condition

The DOL has published a fact sheet on the FMLA at www.dol.gov/whd/regs/compliance/whdfs28.pdf.

Uniformed Services Employment and Reemployment Rights Act (USERRA), 1994

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides reinforcement rights for individuals who miss work because of “service in the uniformed services,” which is defined as voluntary or involuntary uniformed service.

According to the Department of Justice: “USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation.” (www.doj.gov)

HR professionals must be fluent with the contents of the USERRA Fact Sheet 3, published by the DOL: www.dol.gov/vets/programs/userra/userra_fs.htm.

Congressional Accountability Act, 1995

Touted on the informational poster as “advancing safety, health, and workplace rights in the legislative branch,” the Congressional Accountability Act (CAA) protects Congress and Legislative Branch agency employees with coverage under 11 laws (which has subsequently been expanded to include 13 laws), including these:

• Fair Labor Standards Act (FLSA), 1938
• Title VII of the Civil Rights Act (Title VII), 1964
• Age Discrimination in Employment Act (ADEA), 1967
• Occupational Safety and Health Act (OSHA), 1970
• Rehabilitation Act, 1973
• Federal Service Labor-Management Relations Statute (FSLMRA), 1978
• Employee Polygraph Protection Act (EPPA), 1988
• Worker Adjustment and Retraining Notification Act (WARNA), 1988
• Americans with Disabilities Act (ADA), 1990
• Family and Medical Leave Act (FMLA), 1993
• Uniformed Services Employment and Reemployment Act (USERRA), 1994
• Veterans’ Employment Opportunities Act (VEOA), 1998
• Genetic Information Nondiscrimination Act (GINA), 2008

Americans with Disabilities Act Amendments Act, 2008

The Americans with Disabilities Act Amendments Act (ADAAA) amended the ADA of 1990 by codifying a broader interpretation of the ADA, particularly with respect to the definition of a disability. Specifically, this Act established two new entitlements for military families: “qualifying exigency leave” and “military caregiver leave:”

• “Qualifying exigency leave “may be taken for any qualifying exigency arising out of the fact that a covered military member is on active duty or call to active duty status.” (www.dol.gov)

Military caregiver leave

• “may be taken by an eligible employee to care for a covered servicemember with a serious injury or illness.” (www.dol.gov)
• “The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.” (www.eeoc.gov)

Also:

• “The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” (www.eeoc.gov)

Genetic Information Nondiscrimination Act (GINA), 2008

Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is “illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs — referred to as ‘covered entities’) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.” (www.eeoc.gov)

• “The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.” (www.eeoc.gov)

HR professionals must be fluent in the following information about GINA, provided by the EEOC: www.eeoc.gov/eeoc/newsroom/wysk/gina_nondiscrimination_act.cfm.

Lilly Ledbetter Fair Pay Act, 2009

The Lilly Ledbetter Fair Pay Act amended the Civil Rights Act of 1964 and was the first bill signed into law by President Barack Obama.

• “Under the Act, an individual subjected to compensation discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990 may file a charge within 180 (or 300) days of any of the following:
• when a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;
• when the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
• when the individual’s compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.” (www.eeoc.gov)

In this sense, this Act expanded the procedural standing of employees (and former employees) who were negatively impacted by discriminatory wage decisions made in the past but which still impact current pay rates/earnings, to retain “standing” necessary to bring a lawsuit. How did it do so? By establishing that each paycheck event starts the statute of limitations anew.

Said differently, this “codifies the EEOC’s longstanding position that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began. The Ledbetter Act recognizes the ‘reality of wage discrimination’ and restores ‘bedrock principles of American law. Particularly important for the victims of discrimination, the Act contains an explicit retroactivity provision.” (www.eeoc.gov)