Running a business or a group of employees can be a difficult task given the number of regulations and policies that protect the rights of employees and applicants at the workplace. When dealing with employees, you must keep in mind that the employer is responsible for providing a safe working environment free of discrimination and harassment. In order to avoid future conflicts with employees or job applicants, an employer needs to create policies that mimic the laws established by the Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the ADA Amendments Act of 2008, the Age Discrimination in Employment Act of 1976, The Genetic Information Nondiscrimination Act of 2008 (GINA), and the Rehabilitation Act of 1973. Following these regulations can be an entangling ordeal which is why employers are advised to establish personnel policies and practices in the workplace.
The California Sexual Harassment Attorneys understand that each workplace is home to a variety of factors that can contribute positively or negatively to your business. Your workplace policies should take into account all the factors of the working environment including the number of employees, the type of job qualities required to perform the different tasks within your organization, and if any, the hazardous conditions that pertain to your workplace. Under the state of California, employers are required to provide a safe working environment for individuals of all backgrounds. To make sure your workplace policies align with those that govern your specific trade, feel free to contact our attorneys for more legal guidance at 800-905-1856.
The following section will provide common questions and answers for employers who wish to establish strong personnel policies and practices.
How do I maintain employee information and sensitives files?
Information about the employees in your company should be kept in a personnel file. The personnel file should include the following information: the employee's original job application, the employment contract (which includes information about the salary, medical benefits, government documents, and employment benefits), the original offer letter, performance evaluations, and other documents pertaining to the employee.
In maintaining personnel documents, it is important that employers obtain an I-9 form from all employees. The I-9 form is a United States Citizenship and Immigration Service application that is used to authenticate the employees or job applicants legal authorization to work within the United States. All I-9 forms should be kept in a different file or folder, separate from other personnel documents.
In addition, all medical files need to be kept in a different folder that is not the I-9 form folder or the personnel file folder. The Americans with Disabilities Act of 1990 (ADA) provides precise rules on how to handle medical records.
Who should have access to personnel files?
When creating personnel policies at your workplace it is a good idea to keep the personnel files as private as possible meaning that you should have limited access to these accounts. The files should be kept in a secure location, usually in a locked filing cabinet. If you are keeping personnel files online, it's a good idea to lock the account holding the files with a password.
If your employee requests to visit their personnel file, you will generally have to provide supervision from an authorized person such as an HR manager or supervisor. Employers must make sure that personnel files are not tampered or altered.
What should I do if there is a breach of medical records?
Under the EEOC mandates, employers are required to keep medical records safe and private. Employers cannot share the medical records of employees to unauthorized personnel. An employee has the opportunity to request help from the employer so that the records which have been shared are destroyed. Your employee has the right to contact the Department of Health and Human Services (HHS) if you fail to provide a remedy to the incident.
Remember that employee I-9 forms and medical records are very sensitive documents that need to be protected and stored separately from other work-related documents. In the event of a breach of documents, it is in your best interest to help your employees deal with their situation.
Should I create an employee handbook?
To avoid an EEOC claim or other claims against your company, you are highly encouraged to create an employee handbook. An employee handbook can reduce work-related issues by providing a clear depiction of employee job duties and other policies that govern your business. Your employees will be informed of the expectations and regulations that everyone in the workplace is required to follow.
By educating everyone on the policies of the workplace you can ensure that all employees understand how to conduct themselves while at work, reducing the number of times you have to correct a person's behavior. An employee handbook can be of use if an employee files a lawsuit against you or your company.
Employee handbooks which clearly explain the policies and job descriptions of the workplace will:
- Help staff and employees comprehend and follow the rules and policies of the workplace
- Help maintain good employee behavior by letting them know what is not tolerable in the workplace
- Limit the responsibility of the employer if a complaint is filed to the EEOC
Employee handbooks can also include policies relating to business electronic mail accounts and the use of the internet while at work. More and more companies are adopting policies that protect the sensitive information and trades of the company.
Your employee handbook should include the policies and job descriptions of the workplace. You are encouraged to include the workplace policies of the Occupational Health and Safety Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the policies of other governing bodies that regulate employee and employer relations.
It is always a good idea to have documentation of the work policies and to have them shared with the employees and staff of your business.
How should I handle an employee who has requested to file an EEOC claim?
An employee who has requested to file an EEOC claim is protected by the law to do so. Usually, when an employee files an EEOC complaint it is because the employer has failed to alleviate a discriminatory incident at the workplace.
Under the law, you are required to provide every employee with the contact information of the local EEOC office so that they may reach a local counselor. As an employer, you are capable of settling the situation on your own terms or you may be required to enter an alternative dispute resolution (ADR). In any case, it is in your best interest to avoid discrimination in the workplace by providing policies that prohibit certain jokes or actions to occur in the workplace.
If your employee seeks to file an EEOC complaint it is usually because the employer failed to provide a safe and welcoming environment for all employees. If your employee files an EEOC complaint, you are entitled to settle the situation before entering a courtroom. If the situation remains unsettled 180 days after the EEOC investigation begins, you will be required to enter a courtroom where remedies will be negotiated if applicable.
To prevent an EEOC claim from being filed, you are encouraged to listen to all employee complaints and ensure that proper action is taken when a disturbance is brought to the attention of the managers.
What is discrimination at the workplace?
According to the Equal Employment Opportunity Commission (EEOC) discrimination occurs when an employee or applicant is denied a certain right based on their age, genetic information, disability, national origin, pregnancy, race, color, religion, sexual orientation, or gender preference. Under the Title VII of the Civil Rights Act of 1964, an employee cannot discriminate against an employee on the basis mentioned above. Doing so is reason enough to file a complaint with the EEOC office. The employer is advised to address any discriminatory incidents at the workplace to avoid paying remedies in an EEOC lawsuit.
Discrimination in the workplace can include creating policies that indirectly target an individual. For example, an employer cannot enforce an all-female workplace policy or “only English” policy at the workplace. In some cases, if the policy is crucial to the success of the business you should include this information in the employee handbook. An employer needs to be aware of discriminatory language or actions while job advertising, recruiting, hiring, when providing benefits, or when providing work accommodations. Making sure that everyone is treated fairly, with the same benefits, is the responsibility of the company under the mandates of the EEOC.
How should I conduct employee evaluations?
Employee evaluations should be based on the job-related tasks and how well the person performs his or her tasks despite their personal traits. The employee evaluation can be based on the employee’s work ethic, their quality of the performance, their communication abilities, and their devotion to the company. In any case, you must provide your employee with a document that details their tasks and provides information on how the employee will be evaluated.
Employee evaluations should serve a purpose in the workplace. Keeping a tally of who is doing a good job and of employees who are falling behind can help you decide which person to promote and which employees need probation after repeated penalties.
How do I do I know who to accommodate at the workplace?
If you have disabled employees it is important to provide reasonable accommodations upon request. If an employee requests a workplace accommodation it is usually a good idea to have a medical doctor provide a review of the employee's condition. Once the medical document is reviewed the employer will be able to determine whether the company can provide the accommodations requested by the employee. In many cases, employees are protected from providing the workplace accommodation if it would produce unfavorable hardships to the company. For example, if a disabled person requires the assistance of another person to carry out the work-related tasks, the company may not have enough resources to hire another person. Accommodating the employee's request will produce unfavorable hardships on the business which means the employer is not required to fulfill the request.
What is a disciplinary policy?
To avoid any legal actions when correcting an employee's behavior is it crucial that you adopt a disciplinary policy that clearly spells out the policies and regulations that govern the workplace. By providing this information from the employee's start date, you are protecting your company be letting your employee know exactly what is expected of their behavior while at work. Any misconduct at the workplace should be reflective of the policies that are addressed in the employee handbook or discipline policy.
Your discipline policy should not discriminate against any one person because of their age, genetic information, disability, national origin, pregnancy, race, color, religion, sexual orientation, or gender preference. When providing discipline policies to the staff you should always listen to employees concerns to assure that your policies are considered fair by everyone in the workplace. If an employee breaks a policy, the employee is required to correct the behavior and in some cases, you can penalize employee behavior. If the same situation arises at another instance, you are required to response to the situation as you did before. No one employee should receive more or less penalties than the other when dealing with same or similar cases.
When you provide a clear disciplinary policy, you can avoid lawsuits that arise after an employee is fired. Make sure that you document any work-related incident. If an employee is fired the documented incident should be kept in the employee's personnel folder in case the fired employee pursues a lawsuit.
To learn more about the policies and laws that govern employer and employee relations please visit the US. Equal Employment Opportunity Commission at https://www.eeoc.gov/laws/practices/
The California Sexual Harassment Attorney can assist you in creating a policy that is friendly and acceptable in the workplace. When you have employees of all backgrounds, creeds, and national origins, it is important to create a policy that is non-discriminatory. Under the mandates of the EEOC, employers are required to maintain a welcoming work environment ensuring that everyone is able to perform their tasks without fear of harassment or discrimination. To learn more about the obligation and policies that guide your workplace or if you need assistance in dealing with an EEOC case, please contact the California Sexual Harassment Attorney at 800-905-1856.