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Add to this confusion the growing prevalence of telecommuters and the issues of the FLSA become even more complicated. Of course some telecommuting positions fall into the exempt category, and therefore are not subject to overtime pay, however some do. Due to the freedom to engage in 'private pursuits', employers may monitor when a virtual employee logs onto his or her computer and may require that he or she get permission before working overtime (Gabel & Mansfield 2003, 316). Only by fully understanding the FLSA and the legislation that has evolved from its implementation, can Human Resource professionals be certain to obey the regulations and not compromise their organization.
In addition to the monitoring of ever-changing compensation laws, Human Resource professionals must also be well versed in discrimination legislation as well. The Civil Rights Act of 1964, one of them of the most important pieces of discrimination legislation created, was originally implemented to prevent black men and all women from job discrimination. As it is now amended, it prohibits employers from discriminating in hiring, promotion, discharge, pay, fringe benefits, job training, classification, or any other aspects of employment, based on a person's race, color, religion, sex, or nationality. This is in addition to the sexual discrimination prohibitions afforded by the Equal Pay Act of 1963 ("EEO Poster" n.d.).
The Americans with Disabilities Act (ADA) of 1990 is also a historic piece of legislation. The ADA was created "to address the major areas of discrimination faced day-to-day by people with disabilities" (Mizra 2001, 12). It was determined by census data and national polls that Americans with disabilities, as a whole, occupied an inferior status in the country. They were not only suffering from social disadvantages, but from vocational, economical and educational disadvantages as well.
As it is currently amended, it protects qualified persons with disabilities from discrimination from employers in hiring, promotion, discharge, pay, job training, fringe benefits, classification, or any other aspect of employment, due to their disability. In addition, reasonable accommodations must be provided for the disabled employees, so no undue hardship is imposed upon them ("EEO Poster" n.d.).
Yet, the ADA is not the panacea many disabled Americans had hoped for. The multitude of regulations and court decisions often make it difficult for Human Resource professionals to fully understand the ADA. For this reason, the ADA has only provided limited benefits to the disabled, and in fact, statistics have shown that disabled Americans are still behind the rest of Americans when it comes to vocational and economical aspects (Mizra 2001, 12).
The employment provisions of the ADA were created to remove obstructions to employment for disabled people. The ADA banned discrimination and mandated the employers must provide job accommodation. However, one of the unintentional and unanticipated side effects of the ADA is that the increased costs of employing disabled workers, due to meeting the mandated accommodations, has led to lower employment rates for this demographic. In a very real sense, the ADA has become a deterrent in the hiring of disabled workers (DeLeire 2000, 693).
One of the trickiest aspects of the ADA, for Human Resource professionals and their organizations, is hidden disabilities such as mental impairment. 21% of the claims filed with the Equal Employment Opportunity Commission (EEOC) stem from hidden mental disabilities. Mental impairment is defined by the EEOC as any mental or psychological disorder that significantly limits any of a person's major life activities. This can include: concentrating, learning or even socially interacting with others. In addition, the medications used to treat these types of disorders can cause side effects, which limit the person's major life activities. To this end, Human Resource professionals must not only ask about the presence of diagnosed conditions, but also the limits the person continues to have, how their daily life is affected, and any problems that medications cause, to make certain proper accommodations are given under the ADA ("Legal" 2000, 2).
Even sleep apnea, partial vision loss and eating may be protected by the ADA. Sleeping has been recognized by the EEOC as a major life activity. As such, each case of sleep apnea should be reviewed individually to determine if there is significant limitations being experienced by the employee. If so, provisions must be made under the ADA ("Legal" 2003, 2).
The loss of vision in one eye also may be covered. The Supreme Court has ruled that a person with monocular vision must also have their case reviewed individually. Again, if the loss significantly impacts the individual, they too may be protected ("Legal" 2003, 2).
And, even eating has been determined to be a major life activity by the U.S. Court of Appeals for the Ninth Circuit. In an interesting case of Fraser v. Goodale, the court found that the employer's decision to not let a diabetic woman eat at her desk to maintain her blood sugar levels was in violation of the ADA. The woman had passed out due to this restriction and was fired several months later and successfully filed suit against her company ("Legal" 2003, 2).
The Age Discrimination in Employment Act of 1967 is the third piece of primary legislation that makes up the bulk of the discrimination laws. As it is currently amended, it protects candidates and employees that are 40 years of age or older, from employer discrimination, based on their age. This includes: hiring, promotion, discharge, compensation, terms, conditions, or any privileges of employment ("EEO Poster" n.d.).
With the advent of discrimination legislation, reverse discrimination has also become an issue. Reverse discrimination occurs when the anti-discrimination policies in force in an organization, to protect minority groups, have the effect of discriminating against the majority groups. This method of positive discrimination has found its way into affirmative action mandates.
In 1965, the Johnson administration issued United States Executive Order 11246, which was amended by Executive Order 11375, addressing this issue. In addition to prohibiting federal contractors from discriminating against employees and candidates because of their race, religion, gender, or nationality, it also requires contractors to take affirmative action that minorities are employed.
Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from federal contracts during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities ("Affirmative" 2004).
Hiring the best candidate for the position, sometimes must be pushed to the wayside, in order to fulfill these government mandated quotas, or face the risk of losing valuable federal contracts.
No matter what the discrimination base, it is unlawful for an employer to retaliate against a person who files a discrimination charge, or participates in a discrimination investigation, or who opposes an unlawful employment practice ("EEO Poster" n.d.). This regulation protects those who may be victims of discrimination from further persecution.
Even when biases are unintentional from an organization, employers may still find themselves having to pay court awards. In the case of Meacham v. Knolls Atomic Power Laboratory, the company had laid off 31 people, 30 of which happened to be over 40. Although the U.S. Circuit Court of Appeals ruled that the age discrimination was unintentional, it still concluded that the organization could have applied safeguards against subjectivity in the process of involuntary workforce reduction. As such, it awarded 17 former employees with awards ranging from $69,000 to more than $1.1 million ("Late" 2004, 1). Texaco agreed to the largest settlement in the history of discrimination cases, in order to resolve a race discrimination class action, paying $172 million to plaintiffs. The Home Depot paid $88 million to settle a sex discrimination class action. The United States is the most litigious country in the industrialized world, and employment litigation is on the rise (Goldberg 1997, PS1). This is a powerful lesson that exhibits how important it is for Human Resource professionals to fully comprehend discrimination legislation, as well as anticipate how it may be applied to their company.
According to most corporate management theorists and feminist lawyers, often on opposite ends of an issue, sex simple has no place in the workplace. Management cites the detrimental effects to efficacy and efficiency. and, lawyers cite the detrimental effects to equality. The workplace, according to both parties, should be asexual (Schultz 2003, 2061). As such, sexual harassment legislation has become exceedingly important to Human Resource professionals.
Although some would think to attribute this Puritanical view to America's prudishness carried over from the Victorian era, the idea of workplace asexuality actually sprung from twentieth-century organizational rationality. It was Frederick Winslow Taylor "who saw managers as rational 'heads' who would control the unruly 'hands' and irrational 'hearts' of those who assumed their places as workers in the modern organization" (Schultz 2003, 2061). Understanding that sexuality could not truly be vanquished from people,…[continue]
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