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April 30, 2012

How Do I Avoid Potential Discrimination Issues With My Dress Code?

In the second of a series of three blogs regarding dress codes, we will be reviewing discrimination.  This is certainly an item of consideration.   Below are some of the areas you want to think about when drafting your policy.

4.            Disability Discrimination

a)            Dress and Appearance

Dress or appearance standards that adversely affect or otherwise screen out qualified disabled applicants or employees have been found to be discriminatory.


i.              Excluding applicants or discriminating against employees because of obesity may be illegal.  Severe obesity may be a disability under the ADA.  Such cases would be examined on a case-by-case basis.

ii.             Regarding an individual as disabled because of obesity may also be discriminatory.  For example: an ADA violation was found where an obese applicant for a bus driver position was regarded as disabled because it was believed she could not move appropriately in case of an accident.  She was otherwise qualified for the position based on her driving record, experience, and references.

iii.            Failing to hire an applicant due to his facial disfigurement can constitute disability discrimination.

5.            Religious Discrimination

Title VII requires that organizations must accommodate an employee’s religious beliefs and practices unless an undue hardship is created.


The following practices have generally been upheld:

a)            An employee was transferred to a janitorial position after refusing to shave his beard for religious reasons.  The company contended that the issue was safety, as the beard did not permit a proper fit of a respirator.

Discrimination has been found where:

a)            A nurse had been required to wear a nurse’s cap without a tight fitting scarf underneath (her religion required that her head be covered).

b)            A hair salon had refused to allow an employee to wear a yarmulke to work (Jewish skullcap).

c)            An airport had refused to allow security workers to wear headscarves (as required by their religion).

6.            Racial Discrimination

Charges by employees alleging that dress and grooming standards violated their freedom of expression have generally been upheld.  Expressions of cultural heritage are typically not protected by Title VII.


a)            African-American employee charges that the company dress code infringed on their black pride and culture were not upheld.

b)            Title VII did not protect an employee’s wearing of nose jewelry, which she contended was an expression of her Mexican Indian heritage.

7.            What about state and local laws?

Employers must also ensure that dress and appearance policies meet state and local legal requirements.  For example:

a)            California does not allow employers to prohibit employees from wearing pants in the workplace;

b)            Wisconsin requires organizations to state their dress and grooming requirements at the time of hire;

c)            The District of Columbia (as well as numerous localities) prohibits discrimination based on an individual’s appearance, including style of dress or hair.

My blog on Wednesday, May 2, will continue areas to consider when drafting your dress code including the “hygiene” factor.  Stay tuned!


April 27, 2012

HR Fact Friday: National SHRM Federal Regulatory Alert

The U.S. Equal Employment Opportunity Commission (EEOC) just issued revised enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.

While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an “individualized assessment” of the position in question. Furthermore, the guidance will not prohibit job applications that have a “check the box” for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.



April 26, 2012

Class of 2012′s Occupational Prospects: the Good, the Bad, and the Ugly

Filed under: General HR Buzz — Tags: , 9:30 am

Depending on how you want to “spin” it, the Class of 2012 is either in for a “Rude awakening,” or a “Better job market than alumni of the previous three years.” 

The Associated Press reports that half of the students who will graduate from college with a bachelor’s degree in 2012 will be jobless or underemployed.  It’s no surprise that fields with highest projected growth and number of jobs are related to healthcare, information technology, and business. 

“Taking underemployment into consideration, the job prospects for bachelor’s degree holders fell last year to the lowest level in more than a decade.

‘I don’t even know what I’m looking for,’ says Michael Bledsoe, who described months of fruitless job searches as he served customers at a Seattle coffeehouse. The 23-year-old graduated in 2010 with a creative writing degree.”

I wonder if this graduate wishes his parents or someone else would have advised him to choose a different type of degree.  Or, maybe I’m jealous that I didn’t get to pursue my dream of creative writing.  Actually, I prefer the long route I took to earn my degree and I’ll save the creative writing for my free time.

On the other hand, it seems that more employers plan to hire recent college graduates than in the past three years.  According to the Interactive survey, 54% reported they plan to hire recent college graduates (it’s a 9% increase over 2011).  Here’s no surprise: the most in-demand degrees are in business (39%), computer and information sciences (24%), and engineering (23%).  The demand for liberal arts and sciences degrees was at the bottom of the list (9%).

Of those employers who will hire recent graduates, 30% plan to offer between $30-40,000 as starting salary.  There was also a significant group (28%) who planned to extend offers exceeding $50,000.

If you know someone who will walk across the stage at high school graduation this spring, share this resource with him or her: the Bureau of Labor Statistics Occupational Outlook Handbook.  It’s a comprehensive source of all types of occupations.  It may provide a good reality-check so that he or she will be less likely to face unemployment or underemployment in 4-5 years – not to mention a mountain of student loan debt.


April 25, 2012

Sleeveless Tops and Capri Pants

If you are like many companies, these two items may be part of your current discussion regarding summer dress code.  Yes, it is rapidly approaching and it seems the discussion erupts after the first warm, unexpected day when an employee shows up to work in something that is, perhaps, questionable.  Then the whole can of worms opens up.  Is it appropriate to wear sleeveless tops?  What about collarless shirts?

Many of these answers depend on your business, your customers, and the overall philosophy of appropriate “dress” within your culture.  Whatever the point of view, an understanding of the issues and legal concerns surrounding dress and appearance standards is necessary to ensure that you can implement an effective code that meets the needs for professionalism and safety in your organization.  My next few blogs will explore some items for consideration when drafting your dress code policy.

1.            How much freedom does an employer have in setting appearance standards for its employees?

Typically, a lot.  Organizations may generally impose standards based on “social norms.”  Appearance and dress requirements that are based on legitimate business needs (e.g., safety needs, industry norms, management philosophy, types of jobs involved, common business standards) are more likely to be upheld should a discrimination charge be filed.  Workplace rules based on “personal taste” are typically difficult to defend.

2.            What are the discrimination issues?

Dress and appearance standards may violate federal or state anti-discrimination statutes if they are applied inconsistently or create a disparate impact on a protected group.  Sex and religious discrimination are most commonly alleged.

3.            Sex Discrimination

a)            Dress and Appearance

Dress code differences for men and women do not inherently create sex bias.  Different dress standards for men and women that reflect common social norms have generally been upheld.  Therefore, employers do not have to apply identical dress standards for men and women.  However, dress codes not based on societal norms that impose a greater impact or burden on one sex, that are antiquated or based on sex stereotypes, or that are significantly different for men and women typically cannot be upheld.


The following practices have generally been upheld:

i.              Requiring men, but not women, to wear ties.

ii.             Allowing women, but not men, to wear earrings.

iii.            Terminating a female juvenile center employee for wearing too much makeup (after repeated warnings).

iv.           Prohibiting men from wearing long hair.

v.            Because of safety reasons, requiring employees to wear hair a certain way or to use a hair net.

vi.           Requiring facial hair to be neatly groomed; however, completely prohibiting facial hair may be discriminatory on the basis of religion, disability, or race.

Discrimination has been found where:

i.              Female employees, but not males, were required to wear uniforms.

ii.             Female employees, but not males, were forced to wear smocks.

iii.            A manager required a female employee to wear makeup within days of being notified that the employee was pregnant.  The manager had also asserted that pregnant women were less attractive.

iv.           Maximum weight requirements were established for female airline employees where none were established for males.

v.            Only women were required to wear contact lenses.

vi.           A convenience store fired a black employee who had a skin disease aggravated by shaving and who refused to shave.  (Black males are most likely to have this condition, known as PFB.)  Company concerns regarding “image” generally don’t justify a “no beard rule.”  PFB may also be a disability under the ADA.

vii.          Male employees were required to wear jackets and ties, but females could wear jeans, sweaters, and other informal apparel.

b)            Harassment

Employers have been held liable for sexual harassment because they had required female employees to wear provocative clothing.

Discrimination has been found where:

i.              A female lobby attendant was required to wear sexually revealing and provocative clothing that subjected her to derogatory comments and harassment from the public.

ii.             A female cocktail waitress was required to wear a revealing costume while male servers wore tuxedos.

My next blog will focus on some of the potential discrimination related items concerning disabilities, religion, and racial items for consideration.  Check it out next Monday, April 30!


April 24, 2012

Background Checks: Best Practices

Although there are no guarantees when it comes to hiring, employers can reduce liability by conducting thorough (and legal) background checks.  Employers can be found liable for an employee’s criminal actions through negligent hiring if the background check is not thorough.  On the other hand, employers who are too aggressive in their process could face discrimination lawsuits from disparate treatment, or disparate impact.

In creating a best practices checklist related to background checks, it is important to effectively balance the needs of all stakeholders in an organization, including potential employees.  Employers should consider the following:

• Job Descriptions/Analysis – Nature and details of responsibilities for each job in the organization are critical to discern what types of pre-employment checks are necessary.  The detailed job description also allows the applicant to make an informed decision as to his or her ability to fulfill the responsibilities of the position.

• Application for Employment – Every applicant must fill out the application completely in order to be considered for the position.  The application includes: certification the applicant is over 18; whether he or she can provide verification of the right to work in the U.S.; full information regarding education history*; full information for prior employment (including contact information); whether he or she has been convicted of a felony (along with a disclaimer that states conviction of a felony will not necessarily preclude employment)**; whether the candidate (with or without reasonable accommodation) can perform the duties of the job; signature of the applicant that certifies the information is true and any misrepresentation may result in failure to hire or dismissal from the position.

*Note that full education history need not include request for the years attended or year graduated.  This could lead to concern of possible age discrimination.

**Note that the word here is “convicted.” Do not make the mistake of using the term “arrested for.”  Courts have found this question to have a disparate impact.

• Consent Form to Permit Reference Check – The form should be signed by the applicant and “Release both the hiring employer and former employers from liability resulting from the ensuing exchange of information.” (Schloss & Lahr, 2008)  It should also be broad enough to allow for reference checking with all pertinent contacts: former employers, colleges/universities, community service organizations on the resume, etc.

• Checking References – The person checking references should inform the party that will give a reference that they are protected from civil liability when references are given in good faith.  Document all efforts to contact references, even if they are unsuccessful.

• Background Check – Utilize a third-party vendor to conduct all criminal background checks and consumer report requests.  Applicants must be given written disclosure that a background check may be requested, and must sign written consent.  If adverse action is to be taken as the result of information disclosed during the background check, the applicant must be notified of his or her rights as a result.

• Consistency and Proper Training – One of the best ways to ensure background checks are fair and complete is to train any individual who will be involved in the process on proper interview techniques and questions (regarding anti-discrimination) and for the process to be consistently applied to every applicant.


Schloss, L. M., & Lahr, J. G. (2008). Watch your back: Smart hiring and proper background checks. Employee Relations Law Journal, 34(3), 46-71.


April 23, 2012

And Even More Mistakes That Can Lead You to “Employee Handbook Betrayal”

Filed under: General HR Buzz7:00 am

This is the last in a series of blogs on writing employee handbooks and policy manuals.  Although not a favorite thing on our “to do” list, they can become critical when faced with employee relations issues or an HR audit.  In our series of blogs, hopefully you have been reminded of some of the items which can lead to “employee handbook betrayal” – a place we don’t want to end up!

  • Maybe I Will Or Maybe I Won’t—Being Inconsistent.  If the language in your handbook conflicts with other documents or your actions, you have a problem. Inconsistent actions can create nasty discrimination claims.
  • They’re On Their Own—Lack of Training. Failing to train managers and employees regarding handbook policies wastes the effort you put into developing those policies in the first place. It also can start you down a road that you don’t want to travel.
  • Forgetting That You Really Do Have Employees in North Dakota and Rhode Island. If you are a multi-state employer and you have responsibility for the handbooks for employees in all locations, you have my sympathy. State law varies considerably. Remember, employees in each of those states are subject to the laws of those states. Therefore, you’ve either got to write handbooks specific to each state or create one master that would comply with all the states in which you are located. Whichever poison you choose would be dependent upon the number and in which states you are located. Good luck with that one.
  •  Something Old, Something New. By now I think that most everybody knows how important it is to include policies that address sexual and other forms of harassment, Equal Employment Opportunity (EEO) issues, Family and Medical Leave Act (FMLA) leave, confidentiality, etc. But don’t forget to include policies that may now be necessary because of the electronic revolution in the workplace, involving the internet, email, voicemail, IM, iPods, cell phones, monitoring, blogs and computer usage. That list seems to be growing and growing.
  • Avoiding The Lawyers. Nobody likes to pay the lawyers. But ensuring that your handbook is well written and compliant may be an instance where a few dollars spent now will save you many down the road. You can save time and money by creating a first draft of your handbook yourself.

Did you know that HRN Performance Solutions offers a product to assist you in staying up-to-date and ensuring your policies are current?  We do – as part of our HR Suite product.  In today”s fast paced world, human resource management is one of the most rapidly changing and expanding fields.  Click to learn more…and stay tuned for future blogs with some important tips for employee handbooks!


April 20, 2012

HR Fact Friday: Employment Law Update

The EEOC recently issued its new strategic plan and continued its litigation focus on what it calls “systemic” cases, i.e. cases that address a pattern, practice policy or class where the conduct at issue has a broad impact on an occupation, business or geographic area. Finally, a federal court recently issued a ruling in a case involving an employer sued for alleged Family and Medical Leave Act (FMLA) violations when it fired an employee who took leave saying he was sick when in fact the employee was gambling in Atlantic City. The employee tried to claim he was depressed by his gambling losses, and thus his FMLA leave was justified. Did he lose his case? You bet!


April 19, 2012

Courts’ Disagreement Means No NLRA Poster… For Now

Could it be that it’s already been over a year since the National Labor Relations Board issued its proposed rule to require employers to add another poster to their walls?  The NLRB first proposed the rule in December 2010, and it’s been a long and winding road since.  Last fall, we were on the verge of the requirement to post.  We distributed a on the subject last September, after the final rule was published on August 30, 2011.  After multiple extensions, the rule is now set to take effect on April 30, 2012.  Thanks to an ongoing court battle, it looks like employers will be left to wonder when (or if) they need to clear a space for a new poster.

Recently, the U.S. and South Carolina Chambers of Commerce filed a lawsuit that sought review of the rule.  U.S. District Court Judge David Norton agreed with the Chambers that the NLRB exceeded its authority and violated the Administrative Procedure Act.

There are three laws that comprise the National Labor Relations Act: the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act.  Unlike other statutes – such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Family and Medical Leave Act – the laws that comprise the NLRA do not contain any statutory authority requiring that employers post notices of rights and remedies under the statutes.

The Court further concluded that:

  • The rule, while useful, is not necessary to carry out the provisions in the NLRA.
  • The NLRB is an agency that reacts to charges filed by others.  The rule “proactively dictates employer conduct prior to the filing of any petition or charge.”
  • There was no “statutory gap” for the NLRB to fill.

The Court’s decision created a split from a previous decision made by the D.C. District Court, which upheld the posting requirement in its decision.  Earlier this week, the U.S. Circuit Court granted an injunction that will delay the posting requirement.  Meanwhile, the D.C. Circuit Court has expedited its review of the D.C. District Court’s ruling, and will hear oral arguments in September.

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April 18, 2012

More Mistakes That Can Lead to "Employee Handbook Betrayal"

Filed under: General HR Buzz7:00 am

Below are the next few tips to remember when writing and reviewing your employee handbook and policy manual.  These tips are continuing on our theme of “employee handbook betrayal”.  Some of the recent legal landscape has supported these tips, specifically in the area of “not providing enough wiggle room”.  Flexibility is important when writing policies as lack of flexibility can unintentionally morph into employment contracts or indicate inability to work effectively with federal and state regulations.

  •  Over Promising and Under Delivering. Don’t make statements and promises you don’t intend to keep or include policies you don’t follow. If managers don’t enforce it, don’t include it.
  • Being Too Microscopic. Providing too many specifics in corrective action, termination and other policies may then require you to closely follow all outlined action steps in every instance. Allow deviation from suggested steps as circumstances require. Make clear that you can act as is necessary.
  • Not Providing Enough Wiggle Room. Use words like “suggested steps,” “includes but is not limited to,” “steps may not be followed in every instance,” “should” vs. “must” to provide the flexibility you need to respond to different situations. Poorly drafted policies can morph into employment contracts (not a good thing).
  • Don’t Forget To Tell ‘Em About Your Employment At-Will Status. Providing very visible at-will statements throughout your handbook and within the employee acknowledgement (which should be signed) are critical for you to be able to rely on your at-will status and terminate as necessary.  You’ll also want to make sure that you include a conspicuous disclaimer stating that the handbook isn’t a contract, there are no employment guarantees, and that any policy (except employment at-will) can be changed or eliminated.

Did you know that HRN Performance Solutions offers a product to assist you in staying up-to-date and ensuring your policies are current?  We do – as part of our HR Suite product.  In today”s fast paced world, human resource management is one of the most rapidly changing and expanding fields.  Click to learn more…and stay tuned for future blogs with some important tips for employee handbooks!


April 17, 2012

A Policy has to be Changed: Now What?

Filed under: Compliance,Management Practices10:12 am

Last week, Joyce wrote an informative blog about the importance of a solid policy manual and handbook.  The policy manual and employee handbook provide a foundation that outlines the company’s expectations of its employees.  These documents are not solid – written once and put up on a shelf: rather, they are fluid and must be updated as a company grows and as regulations change.  Amending policies is not a process to be done behind the closed doors of the HR Director’s office.  Here are some suggested steps when a policy change is in order:

  1. Check your existing policy manual and handbook to be sure there is a disclaimer that states the company may change or modify policies at any time.  This statement will significantly reduce the likelihood that the handbook could be viewed as a binding employment contract.  If there is no disclaimer, stop here and consult legal counsel.
  2. Seek input from other stakeholders about the proposed changes.  Conduct a focus group with employees and managers, or develop a committee that will assist with revisions to the policy.
  3. Research state and federal law to ensure the proposed policy change is compliant.  For example, an employer wants to require employees to accept their paychecks through direct deposit.  State laws vary in their guidance to employers in whether they can require direct deposit for paying their employees.
  4. As soon as the policy has been approved by legal counsel and company leadership, communicate these changes to employees.  While it is not mandatory to inform employees ahead of time of the change, it is considered best practice to do so.  In determining how much advance notice to give, consider the impact on employees’ morale, finances, work/life balance, and benefits.
  5. Obtain a signed acknowledgement from all employees regarding the changed policy.  The statement should include that the employee has received a copy of the policy and understands what is contained in the policy.

These suggestions will ensure that the company is effective in its communication of expectations to employees, and ensure the employee understands the changes contained in the document.

Look for much more this month as we explore policies and handbooks.

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