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Legal Clinic

An HR Legal Primer

The top five employment-law issues that every HR professional should speak about with front-line managers are outlined in this month's column.

Monday, March 24, 2008
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This is my final Legal Clinic column, as I have left private law firm practice and have accepted an in-house position. In the future, Keisha-Ann Gray of Proskauer Rose will respond to your inquiries and provide guidance on the thorny employment law issues that we face.

This column focuses on a single inquiry, selected by special request -- a tutorial of what every manager should know about human resource/employment law issues.

Question: I have to give a presentation on HR-legal issues; what topics should I cover? Please guide me.

Answer: Although this question can be read in several ways, I will assume the nature of your inquiry is what should be covered in an introductory presentation to individuals who do not specialize in the fields of human resources or employment law. In other words, what are the basic issues that every manager should know? 

Although by no means exhaustive, what follows below is my list of the top five:

* Harassment, discrimination and retaliation prevention.

Managers need to understand federal, state and local laws with regard to harassment and discrimination -- what those terms mean in the legal context; the types of conduct that should be avoided; the company's policies with regard to harassment and discrimination prevention; what to do if a manager experiences or witnesses inappropriate conduct; what is meant by retaliation; and what happens after a complaint is made. 

Some states, most notably California, mandate this training for supervisors every two years. Even where not expressly mandated, this type of training helps to protect employers by potentially providing them with an affirmative defense in the event they are sued for unlawful harassment.

* Principles of performance management.  

Effective performance management can be essential to preventing claims of harassment, discrimination or retaliation. It can also mean the difference between retaining talent or losing employees with high potential who are frustrated by lack of feedback.

Performance-management training should stress the importance of regular communication with staff; timely documentation of performance deficiencies; positive feedback when appropriate; progressive discipline; and coordination with human resources on performance-management issues.

* Basics of the Family Medical Leave Act, Americans with Disabilities Act and state and local laws protecting individuals with disabilities

Managers need to be aware of company policies with regard to the FMLA and accommodation of a disability. They need to recognize when information provided by an employee could be deemed a request for FMLA leave or for some type of accommodation. They need to partner with human resources, and potentially legal counsel, on how to respond to those requests. Finally, confidentiality must be stressed.

* Interviewing basics.

The U.S. Equal Employment Opportunity Commission and many of the corollary state agencies charged with remedying harassment and discrimination have issued guidance on appropriate phrasing of questions during a job interview. 

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Employers are not only precluded from directly asking an applicant about age, children, citizenship and other protected characteristics, but also from posing less pointed questions (such as the year someone graduated high school) that have the effect of generating the same information. 

Managers should be given guidance on what types of questions are appropriate.

* Record-retention obligations

Employers have long had an obligation to preserve specific types of documents and information with regard to employees for defined periods of time and to retain relevant documents in the event of litigation.

In our current era of electronic data communication and storage, these obligations have become somewhat more complex. 

Managers need to understand how to respond (e.g., what to delete) when they are notified that data-storage devices are reaching maximum capacity. They also need to be sensitized to the importance of complying with "litigation hold" memoranda (notices from in-house or outside counsel directing individuals to retain particular types of documents for the duration of an actual or anticipated litigation).

There are a host of other topics, many of which have been addressed in my prior columns that might also have made this list. 

Human resource professionals need to be cognizant of their own workforces and identify training opportunities as the need becomes apparent.

Thank you for your inquiries and your readership, and good luck.

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