Human Resource Management
We live in a litigious society and the number of lawsuits is increasing every day. In recent years, the numbers of lawsuits in US courts have increased many folds. Furthermore, there are new laws introduced each day complicating the relationship of an employer and its employees. The liability of being an employer is increasing each day where a new piece of legislation is introduced or passed by a government agency.
In this age of high liability, you can either run your business in accordance to the labor laws or you will not be a business for long. This is where an Employee Leasing service can help. With an Employee Leasing service as a partner, a small business can have someone to call for advice when confronted with HR management issues. An Employee Leasing service may help its client by offering the following to its clients:
Employers Practice Liability Insurance Coverage (EPL): Employee Leasing services can help their client in many ways to avoid liability. Most Employee Leasing services offer an Employers Practice Liability Insurance Coverage (EPL). Procuring such a policy for most businesses is too expensive, while most Employee Leasing Services offer it to their client as part of their service.
HR policies and procedures: Most Employee Leasing services offer Custom written HR policies and procedures for their clients. Having such policies in writing limits employers' liabilities. Furthermore, most Employee Leasing companies help their clients comply with such policies.
Employee Handbooks: An employee handbook can be one of the best tools to avoid potential employers liabilities. Ironically, most businesses operate without an employee handbook. This is where Employee Leasing services help their clients most.
Employee handbooks limit the liability of the employer to employees by primarily limiting employees’ rights under an agreement. An employee is handed the Employee handbook and acknowledges in writing that he received the handbook and agrees to abide by its terms. Such an agreement may be enforced against an employee who brings a lawsuit against the employer when it can be shown that the employee breached some covenants stated in the employee handbook.
But the fact is that an employee handbook is just a piece of paper that can be used against a business, unless it is properly written and addresses issues unique to that employer. Employee Leasing services personalize employee handbooks for each client, addressing issues unique to that business. An employee handbook that addresses general terms is of little or no use to limit liability for employers.
A good example of how an Employee Leasing service can limit the liabilities of a business is the use of an "At Will Employment" clause in an employee handbook. Sometimes, for example, employee handbooks state that employees will be evaluated periodically--annually or semiannually. If an employee is discharged and contests the discharge, it may be difficult for the employer to explain why the employee didn't get the performance appraisal when he or she was supposed to. Also, even though they may be done only once a year, employees shouldn't be surprised when they sit down to get their appraisal. If there's a problem, the employee should have had some sort of feedback on the way, rather than waiting for the formal appraisal at the end of the year.
Additionally, Employee Leasing services provide consulting on hiring, disciplining, and terminating employees. With a customized employee handbook, updated annually, every employee knows their options, rights, and responsibilities. This knowledge limits employers’ liabilities.
Employment Forms, Postings: Much of compliance with labor law revolves around including certain legal elements when communicating with an employee. Employee Leasing services provide their clients especially designed forms that complies with legal requirement of the employment issues.
For example, there are many laws, both state and federal, that require certain matters be posted within the company premises. Many of these postings do not apply to very small business, but many do. Non-compliance with these posting laws can be a per-se indication of negligence in litigation by an employee against employer. This means an employee can sue and win an action against the employer if it can be shown the employer didn't post a mandated posting, and the employee suffered some harm.
American with Disabilities Act (ADA): ADA was enacted into law to avoid discrimination against disabled employees. Today, there are volumes of books written on the topic that gives every labor law firm a headache just knowing the basics. It is therefore perfectly understandable how this area of law can trip the unwary business owner who has little or no knowledge of the law.
What makes the law so hard to understand is not what it tried to do, but how the federal regulators have dealt with it. For example, the EEOC's regulations do not list any specific physical impairment that would come under the ADA definition. Rather, the EEOC emphasizes that the ADA, like the Rehabilitation Act, does not adopt a ''laundry list'' approach, listing impairments that could be considered ''disabilities'' under the statute. In other words, the determination of whether an individual has a disability ''is not necessarily based on the name or diagnosis of the impairment the person has.'' Rather, it is based ''on the effect of that impairment on the life of the individual.''
Consequently, an impairment that is a disability for one person may not be for another. The determination, according to the EEOC, will depend ''on the stage of the disease or disorder, the presence of other impairments that combine to make the impairment disabling, or any number of other factors.'' For example, a person diagnosed with cancer may be able to perform his or her job functions and not be otherwise limited in any life activities. Such a person would therefore not be considered disabled under the first prong of the definition of ''disability.''
At the same time, EEOC offers a laundry list of commonly recognized disabilities. EEOC provided the following list of “commonly disabling impairments as part of its Interpretive Guidance to the proposed regulations, which included: - Orthopedic, visual, speech, and hearing impairments; - Tuberculosis; - HIV infection;8 - AIDS; - Cerebral palsy; - Epilepsy; - Muscular dystrophy; - Multiple sclerosis; - Cancer;9 - Heart disease;10 and - Diabetes.11 This list and the Commission's discussion entitled ''Frequently Disabling Impairments'' in the proposed regulations were deleted from the final regulations issued by the EEOC. According to the Commission, this deletion was done in order to ''avoid confusion.''12
Apparently, the EEOC was concerned that the list could be misinterpreted as implying that an individual who has one or more of the listed impairments would automatically be considered an individual with a disability. In interpreting the definition of ''disability'' under the ADA, courts have found a wide variety of conditions and impairments as meeting the statutory requisites. For example, Temporal Mandibular Joint Syndrome (TMJ) has been recognized as a disabling condition substantially restricting a person's ability to perform such major life activities as working, eating and sleeping. Emotional conditions, such as anxiety and depression, also have been recognized as disabilities under the ADA.
Employee leasing services are constantly updating their knowledge of ADA and are therefore better equipped to help their clients.
Sexual Harassment at workplace: sexual harassment issues can be a source of great liability for employers. This is one area where an employee leasing can be of great help. In fact, because of the approach taken by employee leasing companies, it can be argued that sexual harassment issues may not be totally avoided unless there is an employee leasing company involved. To understand this point, we must first understand what sexual harassment is and how it is litigated.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances. The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but it could be anyone affected by the offensive conduct. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. The Equal Employment Opportunity Commission handles all the issues in this regards.
The problem facing most small employers is that an employee dates a co-worker. There is a consensual sexual relationship between the two. But when one employee is terminated, the employee brings a sexual harassment lawsuit because of the existence of the relationship at the time of employment.
One way to combat the problem, as indicated by court rulings, is to have an independent source for the employees to go to when they are being harassed. The legal opinions state that the employee must be provided with the name of a person so she can file a complaint when she/he is harassed. But at a small company, the assignment of such a person is not feasible.
Employee leasing services can help their clients defends sexual harassment issues successfully, because they designate a person within the Employee Leasing service to be the person to report the sexual harassment issues to. Furthermore, most employee handbooks by employee leasing companies specifically state that the employee must report such matters to the designated person. Absence of such reporting, bars an employee from making allegations of sexual harassments later.