Human Resources (HR) Tips for Non-HR Professionals

1. Human Resources(HR) Tips for Non-HR Professionals Top HR Issues for 2014

2. Your Breakout Session Presenter Adam Morell Senior HR Manager Doherty | The Employment Experts Upper Midwest’s Largest HR Outsourcer

3. Presentation Agenda • Introductions • HR Tip Topic: Ban The Box • HR Tip Topic: Background Check Hazards • HR Tip Topic: Disability • HR Tip Topic: Marriage in Minnesota • HR Tip Topic: Employee Retention • Questions

4. HR Tip #1: Ban the Box

5. Ban the Box: State and Local Law • A recent trend is legislation is states or cities which prohibits an employer from asking on its employment application if an applicant has been convicted of a crime • While the different laws vary, they often require that an applicant be selected for an interview or be conditionally offered a job before an employer can inquire • NOTE: This legislation generally doesn’t totally prohibit an employer’s inquiry, but rather requires the inquiry to take place later in the process

6. Ban the Box: State and Local Law

7. Ban the Box: Minnesota Minnesota Law • Effective January 1, 2014: • Private employers may not inquire into, consider, or require disclosure of criminal record or history of an applicant until the applicant has been selected for interview by the employer, or, if no interview, before a conditional offer of employment is made. • Although no there is private cause of action (Commissioner of Human Rights investigates), fines can result – and they could be hefty

8. Ban the Box: Minnesota Exceptions Employers hiring for some jobs are not required to “ban the box” - for example: • Law enforcement • Positions requiring licensure • Occupations serving children • Social workers • Health care workers • Banks and other financial institutions • Private detectives

9. HR Tip #2: Background Checks

10. Background Checks: Federal Law • There is no Federal Law governing the use of criminal background checks • However, Title VII does prohibit discrimination based on race, gender, and it has long been argued that employer policies can result in “disparate impact” discrimination • A facially neutral policy has a disproportionate effect of screening out a Title VII protected group (e.g., a particular race or gender) • Because of this, the EEOC has never agreed with the practice of selectively or universally refusing to hire or terminate candidates due to their criminal backgrounds • Thus, last year…

11. Background Checks: EEOC Guidance • The EEOC published a new, expanded Guidance on background checks • A guidance doesn’t represent law, but rather a suggested road map for employers to follow • While the guidelines don't bar the use of criminal checks but it urges employers to consider the already-in-existence “Green factors”

12. EEOC: Green Factors • Green Factors • Nature and gravity of the offense • Time since the conviction and/or completion of the sentence • Nature of the job held or sought (These are the same factors that have been in effect since 1987; Green v. Missouri Pacific Railroad, 523 F.2d 1290 [8th Cir. 1975])

13. Background Checks: Real Life Example Wrong bed, wrong woman

14. EEOC: Individualized Assessment • New EEOC Guidance: For individuals screened out by targeted screening process, policy and process should provide an opportunity for an individualized assessment • In fact, the Guidance says a screening process more likely to violate Title VII if it does not provide for individualized assessment and the EEOC has begun to go after Employers who do not use it

15. EEOC: Individualized Assessment • The assessment should provide them with an opportunity to: • Provide facts or circumstances surrounding the conviction • Explain the conviction; who, what, where • Demonstrate why they should not be excluded • Discuss length and consistency of employment history after convictions and types of work they have had • Show rehabilitation, education/training, bonded etc…

16. The EEOC is Serious • In June 2013 the EEOC filed two major lawsuits claiming that employers’ background check policies unfairly excluded minorities against discount retailer Dollar General Corp. (Dollar) and a U.S. division of BMW alleging that the hiring policies at both companies had the effect of discriminating against African American applicants, in violation of Title VII. • The commission said Dollar General revoked conditional employment offers for 10% of its black applicants, but only 7% of its nonblack applicants, • The EEOC also claims that BMW required 645 employees to undergo a new criminal background check • Of those, employees, 55% were black; but 80% of the 88 employees terminated due to the background check were black

17. Background Checks: What to do… No matter what the EEOC does/says, no matter how many cases are filed, there are things that an employer can do that will always be steps in the right direction

18. EEOC: Written Policy • Employers can take steps that are not onerous, not expensive and can withstand rigorous EEOC guidance, etc. • Have carefully crafted policies about every aspect of the hiring process, including background checks • Train managers, hiring officials and decision makers on how to implement the policy

19. Background Checks: Golden Rules • Uniformity • Conduct the same process for investigation on every finalist for the same or similar positions • Consistently apply and enforce your policies and practices • Consider whether you can get enough information through the interview process through questions, training the interviewers, assessing credibility of applicant • Have some centralized review of information, once gathered

20. If you take away nothing else… • The law is changing • Contact your attorney or HR company if you choose not to hire based on criminal history

21. HR Tip #3: EVERYONE is “Disabled”

22. Disability: Protection Under the ADA • ADA prohibits disability discrimination in the full range of employment practices such as: • Recruitment • Hiring • Rates of Pay • Promotions • Selection for training

23. Disability: Qualified Individuals • Someone who is qualified to perform the essential functionsof the job with or without a reasonable accommodation

24. Disability: Qualified Individuals • The person must: • Satisfy requirements for educational background, employment experience, skills, licenses, etc. AND • Be able to perform tasks that are essential to the job, with or without a reasonable accommodation

25. Disability: The Landscape has Changed • Definition of disability must be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the ADA • Unlike in Toyota Manufacturing Kentucky, Inc., v. Williams, 122 S.Ct. 681 (2002)

26. Defining a Disability • Physical or mental “impairment” that “substantially limits” a “major life activity” • Physical or mental “impairment” • Any physiological disorder or condition OR • Any mental or psychological disorder

27. Disability: Major Bodily Functions • Major Bodily Functions • Immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions

28. Disability: Substantially Limits • “Substantially limits” is given expansive coverage

29. Disability: Major Life Activities • Major Life Activities • Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working

30. Disability: Reasonable Accommodations • Employer must provide a reasonableaccommodation unless doing so would create an undue hardship for the employer • Because the definition of disability has been so broadly expanded, oftentimes the analysis is in whether the requested accommodation is reasonable

31. Disability: Interactive Process • Have a formalized accommodation policy and process in place • Request for accommodation/confirmation of request • Document possible accommodations considered, interactive steps and decisions • Analyze the job and determine its essential functions • Consult with the individual to determine the precise job-related limitations imposed by the disability and how the limitations could be overcome with a reasonable accommodation

32. Disability: Interactive Process Cont. • With the individual, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position • Select and implement the most appropriate accommodation

33. Disability: How Much Leave Is Enough? • Undue Hardship Test: Under the ADA, an employer is not required to grant accommodation leave if it is an “undue hardship” for the employer.

34. Disability: Undue Hardship? • Undue Hardship Test: • Nature and cost of the leave needed; • Overall financial resources of the facility making the accommodation; • Employer’s overall financial resources, size, number of employees, and the number, size, and locations of the facilities used by the employees; • The type of operation of the employer; including the size and makeup of the workforce; • The impact of the accommodation on the particular facility.

35. Disability: Refusing an Accommodation • If you are planning to refuse an employee’s request for a reasonable accommodation, you should reach out to outside counsel or your HR department to determine whether or not the employee’s request constitutes an “undue hardship.”

36. HR Tip #4: Same Sex Marriage in MN (and Elsewhere)

37. Same Sex Marriage Map – as of January 14, 2014

38. Marriage: in Minnesota • What happened last year? • What are the impacts to businesses?

39. The Defense of Marriage Act (DOMA) • The summer of 2013 saw the Supreme Court strike down the Defense of Marriage Act (DOMA), the federal law barring the recognition of same-sex marriage • The ruling has created an impact on state and federal law relating to tax breaks, pension rights, and other benefits

40. Impact of the Supreme Court’s treatment of DOMA • Impacts to Employers • Group benefit plans with “legal spouse” as a potential dependent would automatically offer coverage to married same sex spouses without proof of marriage unless the plan requires opposite sex spouses to prove they are married • Deductions from an employee’s payroll for the cost of spouse coverage would be pre-tax as with all spouses

41. Marriage Equality Act and DOMA: Impacts Cont. • Pre-tax benefits - The cost of the spouse coverage covered by the employer will no longer be taxable to the employee • Other insurance coverage such as spouse life insurance may be available as well • Leaves - Minnesota’s “Marital status discrimination” prohibition will apply • For example, same-sex spouses will be protected from marital status discrimination under the MHRA. With respect to leave policies, any impact on leaves of absence governed by federal law, such as the Family and Medical Leave Act (e.g., the 12-week cap on married couples) • A plan definition of "spouse" that refers to Minnesota Statute Section 517.01 automatically expanded to cover same-sex marriage

42. Marriage Equality Act and DOMA: Impacts Cont. Regardless of whether or not an employer's benefit plans will be required to provide coverage for same-sex spouses, you should review the definitions of "spouse" used in their plans to determine whether the definitions will continue to reflect the employers' intent now that Minnesota recognizes same-sex marriage. • A plan definition of "spouse" that refers to Minnesota Statute Section 517.01 automatically expanded to cover same-sex marriage

43. Marriage: Retirement Benefits Impact • Retirement benefits • 401(k) beneficiary is automatically your “spouse” and to designate another beneficiary other than spouse requires a notarized signature • Will this apply to same-sex spouses? Time will tell

44. Marriage: The Future of Domestic Partner Insurance? • Will employers continue to offer domestic partner insurance in Minnesota now that everyone has the choice to marry? • Some employers currently extend benefits, especially health benefits, to same-sex domestic partners • For most, the purpose has been to provide benefits to same-sex partners who could not have a marriage recognized under state or federal law. • Now that Minnesota recognizes same-sex marriage, employers will need to decide whether they will continue to provide domestic partner coverage, or whether same-sex partners will need to marry in order to qualify for these benefits. • -i.e., if you don’t offer benefits to heterosexual partners who aren’t married , will you continue to do so for unmarried same-sex partners?

45. HR Tip #5: Make sure your Employees are Happy

46. Make sure your employees are happy! • As little as a few years ago, managers were able to get away with being poor managers because job opportunities outside your company were poor. • You could worry about it tomorrow • Tomorrow is here • Over two and a quarter million employees quit their jobs in October, the highest number since 2010 • With the economy improving we’ll learn the wisdom of Warren Buffett’s comment (from a different context): “Now that the tide has gone out, you will find out who has been swimming naked.” • Are your staff members going to sing Johnny Paycheck’s best song, “Take This Job and Shove It?”

47. Employees: Could your Receptionist be your CEO? • Give employees titles that they are qualified for • How do you benefit by withholding? • What do you do when they outgrow their current roles? • Professional Development: Internal/External • If you want to keep that employee, you’re going to make the room to keep them • Otherwise do not be surprised when they leave

48. Employees: Training your Replacement or a New Team Member • Delegation works when you have the right people • Accepting that some of the things you delegate will not be done as well as you could have done them yourself • Not allowing mistakes refills your plate and stunts growth • Realistic expectations • They are not you • This is good – you may learn other ways of doing things well

49. Employees: “A rising tide lifts all ships” - Innovation at all levels • Why limit innovation? • Saying no with class • You need not accept every idea but you should be respectful and honest about why it may not work • Is there a happy medium (e.g., relaxed rather than casual) • If they don’t bring YOU their ideas, they may bring them to your competitors • How would 3M feel if the post-it note idea were brought forward somewhere else

50. Employees: Pure Development Planning • It’s not just about the annual “performance discussion” • Intentional • Feedback, feedback, feedback • More casual discussions (1:1s, etc.) • You may be surprised what you discover