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HR & the Law 

  

How to Conduct Internal InvestigationsHow to Conduct Internal Investigations: A Practical Guide for Human Resource Professionals
By Natalie Ivey, MBA, SPHR
Results Performance Consulting Inc., 2013
243 pages
List price: $69.95
ISBN: 978-1-4839-3524-9

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Responsibility for conducting internal investigations often falls on HR—whether or not HR wants it or is equipped to perform investigations. That’s where this guidebook aims to help: Natalie Ivey lays out the steps for running (and, if possible, preventing) internal investigations.

First, Ivey reminds HR professionals why they need to know how to run an investigation. They might have to handle a sensitive issue such as a harassment or retaliation claim. They could end up involved in equal employment or other claims, especially in today’s workplace with its increasing diversity and generational differences. And the Family and Medical Leave Act has created a need for HR professionals to investigate some FMLA claims to ensure that they aren’t fraudulent.

With such a complex landscape for HR professionals to navigate, this book provides a map in four parts.

In part one, readers look at what causes investigations and how to prevent them. Ivey discusses how leaders often choose to avoid tough interactions when they observe problems, and that avoidance leads to investigations. For example, supervisors ignore inappropriate behavior, are intimidated by employees or see dealing with problematic employee behaviors as unimportant compared to their “real” work.

Prevention strategies include providing leadership training about employment laws; having clear, well-written company policies; and implementing an employee relations policy that specifies the procedure for complaints, rather than having a vague open-door policy.

Part two hands HR a primer on labor relations and employment laws, covering harassment under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, and more.

Ivey also covers the essential elements of a retaliation claim, with examples, and provides tips for preventing retaliation complaints. She also advises on how to minimize your own personal liability as an HR professional and an investigator.

Part three walks readers through the investigative process, starting with establishing a consistent, formal complaint process for employees to use.

Ivey advises readers on how to decide when it’s appropriate to bring in outside professionals to conduct an internal investigation, as well as when it’s time to call in law enforcement agencies.

Investigative steps include:

  • Preparing, with a 12-step checklist to ensure that you are ready to review a complaint thoroughly and with legal controls in place.
  • Deciding who should handle the investigation.
  • Identifying and gathering both documentary and physical evidence as well as identifying and interviewing potential witnesses. A chapter focuses on how to interview witnesses, including how to prepare questions, interpret body language and deal with hostile witnesses.
  • Controlling documents to ensure evidence is kept safe and confidential.
  • Organizing and evaluating evidence to write an investigative report.
  • Conducting a meeting to inform senior leaders about progress (and dealing with resistance or interference from those leaders).
  • Writing an investigative report that is “court-ready.”
  • Communicating the outcome of the investigation to the complainant, the witnesses and the accused, and dealing with complainants who are dissatisfied.
  • Handling “high-risk terminations” that could lead to legal claims.

Part four is a wrap-up section that covers how to document findings and conclude an investigation and what to put in an investigation report. It also provides information on how to handle post-investigation issues, including the potential for retaliation.

Ivey provides quizzes at the end of each section so readers can test themselves on the material. She also provides templates for a complaint form, an investigative report and evidence logs.

Grace and GritGrace and Grit
By Lilly Ledbetter with Lanier Scott Isom
Crown Archetype, 2012
279 pages
List price: $25
ISBN: 978-0-307-88792-4

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One landmark Supreme Court case and one law bear Lilly Ledbetter’s name. She was the plaintiff in Ledbetter v. Goodyear Tire & Rubber Co., and the defeat the justices handed to her in that case ended up sparking the Lilly Ledbetter Fair Pay Act of 2009.

In this autobiography, Ledbetter recounts a working life of 19 years as a supervisor at the Alabama Goodyear Tire & Rubber Co. As Ledbetter seemed to climb the ladder at Goodyear, she found herself evaluated as a poor worker over and over, especially after she refused a foreman’s offer to raise her evaluation score in exchange for sex. Over the years, some workers and managers helped and backed her, but she repeatedly encountered harassment and roadblocks.

Ledbetter details how Goodyear supervisors and managers shifted her from job to job, usually while telling her that, as a woman, she would never last in any job they gave her. She describes constant and aggressive sexual harassment. Her health suffered from the stress, and her relationships with her husband and children suffered, too.

But Ledbetter kept working, finally winning the respect and loyalty of many workers—but not many male supervisors. She knew she would only have to work harder to prove that she could do the jobs assigned to her.

What Ledbetter didn’t realize all those years was that she was being paid substantially less than the men who held the same positions she did.

The truth came out in an anonymous note listing her salary and the salaries of the men in the same job. “I’d known from the get-go that I’d have to work longer and smarter than the men in order to prove myself. But how in the world could I have been paid less all these years?” she writes.

Ledbetter’s pursuit of fair pay first led her to complain to the U.S. Equal Employment Opportunity Commission (EEOC). The result was retaliation at work, in the form of being blamed for tire production mistakes she didn’t make. The EEOC granted her the right to sue Goodyear, and Ledbetter, by then retired, decided to go to court. A jury awarded her more than $3 million in punitive damages and more than half a million dollars in pay.

An appeals court ruled that Ledbetter had missed her window to file a complaint against Goodyear. She should have done so within 180 days of the initial decision by Goodyear to discriminate against her. Since employees did not discuss their pay, she had had no way of knowing she was underpaid until years after the discrimination began.

Ledbetter writes that “Goodyear was exonerated for its wrongdoing, simply because Goodyear had been doing me wrong long enough to make it legal.”

Ledbetter’s appeal ended up at the Supreme Court, where the verdict went against her: The court said she should have complained about her pay within 180 days of the company’s initial decision to pay her unfairly.

Congress passed a law to prevent future court decisions like that one. The Lilly Ledbetter Fair Pay Act says that each discriminatory paycheck is a separate discriminatory act, and each paycheck restarts the clock for filing a claim against the employer.

Grace and Grit details both the legal fight and the personal toll that the pay practices—and a career marred by harassment and discrimination—had on Ledbetter and her family. It ends with Ledbetter in a new role as a speaker and activist campaigning against pay discrimination.

*Watch a SHRM video with Leslie Silverman, a partner with Proskauer Rose, as she discusses the pros and cons of adopting a different pay model to limit liability under the Lilly Ledbetter Fair Pay Act.

 

Auditing Your Human Resources Department, Second EditionAuditing Your Human Resources Department, Second Edition
By John H. McConnell, SPHR
AMACOM, 2011
283 pages
List price: $79.95
ISBN: 978-0-8144-1661-7

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The second edition of this step-by-step guide to assessing HR programs reflects recent changes to federal regulations. Auditing Your Human Resources Department lets readers start an audit from scratch using the checklists, questions and forms in the book and on the companion CD-ROM.

The audit covers 11 major HR areas, including recruitment and selection, compensation, benefits, training, development, employee and labor relations, diversity, and safety. For each of the 11 areas, author John H. McConnell, SPHR, takes readers through four steps in the audit process—gathering information, evaluating responses, analyzing the evaluations and planning action—and provides checklists readers can use to audit their organizations immediately.

Gathering information. Readers answer a series of questions to gather information about each HR area. For instance, in the audit questions about recruiting, one section asks whether the organization attempts to fill jobs from within departments before letting other employees know about the open jobs. Other questions ask about internal and external sources of candidates.

Evaluating responses. Here, readers assign numerical ratings to their answers. The book outlines how to rate answers and what those ratings mean, and includes brief guidance on practices in each area.

Analyzing results. With survey answers and evaluations in hand, readers learn to identify the HR organization’s strengths, weaknesses and areas for improvement. The analysis helps identify where readers need to gather more information and make more-detailed analyses.

Action plans. Readers select three priorities for immediate attention (or, if nothing needs urgent attention, three areas where HR could develop further). The book provides forms to guide readers through developing objectives, figuring out what needs to change, and devising specific actions and time frames.


The Employer’s Legal Handbook
The Employer’s Legal Handbook
By Fred S. Steingold
Nolo, 2011
392 pages
List price: $49.99
ISBN: 978-1-4133-1390-1

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Covering everything from hiring to firing and all that happens in between, this pithy and practical guide gives HR professionals and managers the legal basics to handle day-to-day questions and problems.
Readers can turn to any topic they need immediately (such as dealing with a request for medical leave or answering an employee question about firing for cause), or they can use the entire book as a text on employment law basics.

Topics include hiring, wage and hour issues, benefits, family and medical leave, health and safety, discrimination, workers with disabilities, termination, unions, and independent contractors. Appendices summarize a host of state laws applicable to the workplace, such as health insurance continuation laws, drug and alcohol testing laws, and wage laws.

The book not only explains employment-related laws but also gives examples of how courts have applied those laws to employers.

Readers also learn ways to protect themselves legally, and the book includes sample policies, statements and letters designed to help protect employers; examples include a sample rejection letter and a sample safety code for distribution in the workplace.

The many tips in this guide include the following:

  • A detailed discussion of legal considerations when hiring independent contractors.
  • Ways to avoid negligent hiring claims.
  • Language to use when advertising jobs, to avoid discrimination claims.
  • A chart listing questions employers should and shouldn’t ask before hiring.
  • Detailed descriptions of what employees are and aren’t exempt from the Fair Labor Standards Act.
  • An outline of how the 2010 health care reform law affects businesses.
  • Basics on the types of federal employment taxes.
  • Ideas for improving accessibility, making other accommodations for workers with disabilities and getting outside help when determining what are reasonable accommodations.
  • A primer on how unions organize in the workplace, and what employer rights and limitations are in the unionized workplace.

The Essential Guide to Federal Employment Laws
T
he Essential Guide to Federal Employment Laws
By Lisa Guerin and Amy DelPo
Nolo/SHRM, 2011
544 pages
List price: $49.99
ISBN: 978-1-4133-1379-6

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This handbook on federal employment law, a co-publication of Nolo and the Society for Human Resource Management, offers employers an outline of what laws they must follow, summaries of laws and tools for ensuring compliance.

Authors Lisa Guerin and Amy DelPo also provide detailed definitions of a host of legal terms and alert readers to court cases that affect how the laws are interpreted and used.

Readers can use this third edition of the guide quickly, turning directly to details on the specific law they need to research. Each major law gets its own chapter, and each chapter covers a law’s details, exceptions, enforcement and compliance. For federal laws with state counterparts, Guerin and DelPo include those related state laws.

The book looks at all major employment laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Civil Rights Act, and the National Labor Relations Act. It also covers laws less familiar to some employers, including the Worker Adjustment and Retraining Notification Act, the Older Workers Benefit Protection Act and the Employee Polygraph Protection Act.

The book also covers:

  • How collective bargaining agreements affect a workplace’s legal status (an agreement actually supersedes the law in certain areas, if it gives workers more rights than the law does).
  • How to determine if your business is covered by certain laws.
  • Why lawyers, training programs, written policies and documentation are smart investments that protect you.
  • Which federal and state agencies to contact for questions about employment laws. 

The HR Immigration Pocket ReferenceThe HR Immigration Pocket Reference
By Peter F. Asaad and Jin Yeophantong
Society for Human Resource Management, 2010
421 pages
List price: $39.95
ISBN: 978-0-615-33168-3

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This miniature reference is made solely for the pockets of HR professionals—it only covers aspects of immigration law relevant to HR. Intended as a practical guide for daily use, the book includes guidance on these areas:

  • Employment verification. Get a step-by-step guide on how to verify work eligibility status, plus a checklist to help you avoid sanctions. Learn about the forms the government requires and the identification documents you can accept to verify an employee’s identity and status.
  • E-Verify. The book includes details on using the federal government’s voluntary, Internet-based E-Verify system to check federal databases for employment authorization information about new hires. Readers get guidance on what to do if E-Verify turns up discrepancies in employees’ records and how to avoid liability and discrimination when using the system.
  • Work visas. A chart lists all temporary work visas and whether each allows the holder to accept employment. Other sections outline how specialized visas work, including visas for business visitors on short-term stays, agricultural workers, employees hired for specialty occupations and employees transferring to the United States from an employer’s offices in another country.
  • Permanent resident or “green card” status. Learn the process for obtaining a green card for an employee.

Health Care Reform and HR: One Checkup You Shouldn’t MissHealth Care Reform and HR: One Checkup You Shouldn’t Miss
Presented by Mike Aitken, SHRM Director of Government Affairs
Society for Human Resource Management DVD, 2010
List price: $79.99 

Member price: $59.99
Item #48.29005 

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With this 50-minute video presentation, the Society for Human Resource Management (SHRM) gives viewers a brief but broad primer on the health care reform law and advice on HR’s role in implementing that complex law in the workplace.

SHRM Government Affairs Director Mike Aitken breaks the vast Patient Protection and Affordable Care Act into topics of interest to HR. He covers what HR professionals need to know about the law and describes specific steps HR should take starting now.

Aitken also gives viewers some big-picture perspective on the law: Despite talk of repeal, the law is likely only to undergo technical changes, not complete repeal, he notes. Regulations, still in development, will drive how employers implement this law in detail. And although some effective dates for certain provisions are years away, employers can’t be complacent or focus just on short-term changes, Aitken notes.

Among the topics Aitken covers are:

  • What the “individual mandate,” requiring everyone to have coverage on their own or through an employer, really means.
  • What employer responsibilities are under the law. Those responsibilities include offering coverage (but not necessarily paying for it); automatically enrolling employees for coverage if the employer has more than 200 workers; reporting the value of employees’ health benefits on W-2s; and giving qualified employees vouchers to use to purchase coverage from state-run exchanges that have yet to be set up.
  • How tougher rules on health care flexible spending accounts (FSAs) will affect employees--and how employers face new penalties on FSA misuse.
  • How the “Cadillac tax” on high-value health plans might affect employers with those plans.
  • Why employers without wellness programs right now might consider starting such programs soon.
  • What the law says about retiree health care and a new insurance program that reimburses employers for retirees’ qualifying medical expenses.
  • How employers can participate in a little-publicized program creating long-term care coverage for employees at no cost to the employer.

For each topic, Aitken advises on what HR needs to do and know. Most importantly, he says, HR needs to brief senior leaders and employees about changes and their impact on the organization. Waiting until the next open enrollment period begins is waiting far too late to start educating everyone about what the new law means.

HR also needs to communicate well to manage employee expectations, because media coverage of the new law may leave employees, and even CEOs, confused or misinformed about what they will or won’t get out of the many changes.

HR should start modeling the organization’s future health care costs, creating scenarios with different options, as well as reviewing current health care plans to see if they meet the law’s minimum standards or if they offer too much. The law may require HR to adjust the waiting period for health care coverage. The law’s definition of a “full-time employee” also may be different from what some employers use, so HR must learn what definitions to use.

Aitken includes a summary of health care reform resources available to SHRM members.

 

 

The Essential Guide to Workplace InvestigationsThe Essential Guide to Workplace Investigations
By Lisa Guerin
Nolo/Society for Human Resource Management, 2010
List price: $44.99
513 pages
ISBN: 978-1-4133-1204-1 

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Legal publisher Nolo teams with the Society for Human Resource Management for this volume outlining 10 steps of an effective workplace investigation.

The guide includes sample forms, policies and letters, plus advice on state and federal laws as well as sample questions for investigative interviews.

Learn how to determine whether to investigate a problem in the first place, how to choose an investigator and how to launch an investigation quickly—because delaying a needed investigation can create legal problems later.

The guide walks readers through the step of gathering information, including how to ask questions, how to maintain confidentiality and how to document interviews. Sections on making and documenting a decision look at ways to evaluate evidence, tips for determining interview and evidence credibility, actions to take once you reach a decision, and tips on writing an investigation report.

Readers learn how to investigate specific workplace problems, including discrimination, harassment, theft, threats and violence, and drug and alcohol use. Detailed chapters on each of these problems show, for example, which anti-discrimination laws apply to different workplaces.

The book also looks at options employers have for making things right once an investigation finds there is a problem. Actions include creating a “safety plan” for an employee who is the target of workplace violence, or granting promotions, pay or other restoration to an employee against whom a manager discriminated.

This guide includes a CD-ROM with sample policies, checklists, forms and more.

CCH’s Law, Explanation and Analysis of the Patient Protection and Affordable Care Act, Volumes 1 and 2CCH’s Law, Explanation and Analysis of the Patient Protection and Affordable Care Act, Volumes 1 and 2
CCH, 2010
Vol. 1: 1,103 pages
ISBN: 978-0-8080-2287-9
Vol. 2: 1,007 pages
ISBN: 978-0-8080-2342-5
List price: $149

This two-volume set summarizes and explains the 2010 health care reform law that expanded health care access and coverage.

For employers and employees, this volume interprets the law in detail and includes comments and cautions on implementing the law, known as the Patient Protection and Affordable Care Act, P.L. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152.

The books focus first on explanations, organizing the law’s content by topics ranging from coverage choices to maternal and child health care services and access to innovative therapies. Each topic begins with a brief summary of the law on that subject, followed by background information on issues the changes were intended to resolve. A detailed explanation of the law on each topic follows.

In “Expert Guidance” sections throughout the summaries, lawyers comment on the history and significance of specific changes.

The set includes the full text of the law as well as lists of effective dates for its major provisions.

Compiled by Leigh Rivenbark, a freelance writer and editor in Vienna, Va.

 

The HR ToolkitThe HR Toolkit
By Denise A. Romano
McGraw-Hill, 2010
336 pages
List price: Member $25.95
Nonmember $29.95
ISBN: 978-0-07-170081-8

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The HR Toolkit provides dozens of sample memos, policies, training aids, exercises, checklists and more that readers can use immediately for a wide range of HR tasks, from alerting employees about legal compliance to notifying applicants they did or didn’t get a job.

Topics include legal issues (such as compensation, leave and overtime), workplace bullying, union issues, health insurance terms, conflict resolution, feedback and training, job selection and recruitment, equal employment opportunity rules, and issues such as comp time, flextime and more.

Author Denise A. Romano, an HR professional for more than 14 years, does more than offer sample documents and review laws relevant to HR. She urges HR professionals to be “credible activists” who are willing—and well-trained enough—to point out when their companies are violating laws or just handling things improperly through inadvertent errors.

She also addresses HR professionals’ worries—including advising them on coping with workplaces that devalue HR.

She covers how HR professionals can protect themselves if they point out inconsistent policies or discrimination to managers and end up being targeted for retaliation. Romano also talks about how HR can use its authority wisely, avoid competing with other parts of the organization, get needed HR training and certifications, and ensure that the HR department meets ethical standards.