By: Beth P. Zoller, XpertHR Legal Editor · Evolving technologies- mobile analytics Predictive analytics Global marketplace and aim to hire diverse workforce in light of immigration

Top 2018 Compliance Challenges For

HR: Are You Ready?

By: Beth P. Zoller, XpertHR

Legal Editor

What Affects Workplace

• Society

• Culture

• Technology

• Legal Landscape

• Generational changes

Increased Obligations – Federal/State/Local

• Laws

• Regulations

Today’s Workplace is in Flux

Significant Changes Affecting Workplace

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• Civil fines

• Criminal penalties

• Administrative actions

• Litigation

• Harm to business reputation and professional image

• Bad publicity/negative press and social media

Risks of Noncompliance

Employers Face High Stakes

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• XpertHR surveyed HR professionals on their view of compliance challenges in 2017

• Received nearly 1000 responses from small, medium and large employers in October 2017

• Wide variety of industries, all geographic areas of the country

• Will touch on several specific findings throughout today’s presentation

XpertHR Survey

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Challenge # 1: Federal Priorities

Areas of Concern

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Affordable Care Act

• Obligations continue to burden employers

◦ 46% viewed ACA as very or extremely challenging

◦ 40% viewed ACA reporting as very or extremely challenging

Immigration

• Hardline stance/restrictive policies in light of increasingly diverse society

◦ 21% hiring of workers on visas very or extremely challenging

◦ 18% viewed travel bans as very or extremely challenging

◦ 18% view the increased government enforcement of immigration requirements as very or

extremely challenging

Challenge #1: Federal Priorities

Changing Federal Focus

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• Fundamental shift- smaller role for government, decreased regulations, driving oversight to states

• Roll back agency authority

◦ EEOC rescinded revised EEO-1 Report, vacate EEOC wellness rules

◦ NLRB- reversed Obama era pro-employee rulings that expanded workplace rights - protected

concerted activity and handbook policies, independent contractors, temporary workers and the

joint employer doctrine

◦ OSHA roll back authority

◦ DOL opinion letters revived, internship test, increased penalties


Measures Supported by Trump/Republican Majority

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• Tax Cuts and Jobs Act Affects Employers

◦ Income tax withholding

◦ Fringe benefits

◦ Stocks/stock options/stock transfer income

◦ Qualified retirement plans

◦ Business expense deductions and credits

◦ Affordable Care Act

◦ FMLA employer credit

◦ Sexual harassment settlement nondisclosure agreements

• Working Families Flexibility Act (private sector employees - comp time in lieu of OT pay)

• Supreme Court balance tips conservation/pro-employer appointment of Neil Gorsuch

• Stay the course

• Comply with the laws and regulations that are on the books, at least until they are changed

• Comply with immigration requirements

• Monitor developments closely and be on lookout for changes

• Maintain detailed adequate records/documentation regarding employees/employment actions

• Make sure there is a legitimate business reason for taking a particular course of action or making

an employment decision


What an Employer Should Do

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• Minimum wage increases (multiple states)

• Paid sick leave (Arizona, California, Connecticut, DC, Oregon, Maryland, Rhode Island, Vermont, NYC, Phil)

• Marijuana medical (over ½ states), recreational marijuana (California, Massachusetts, Nevada)

• Ban the Box (California, Connecticut)

• Predictable/predictive scheduling (NYC, Seattle, Oregon)

Challenge #2: State and Muni Issues

Trending and Emerging Issues

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• Salary history ban/equal pay (Delaware, Massachusetts, Oregon, NYC, Philly, San Francisco)

• Breastfeeding accommodations (Nevada, New Jersey, San Francisco)

• Pregnancy accommodations (Connecticut, Massachusetts, Nevada, Vermont, Washington)

• Gun laws/weapons in workplace ( Arkansas, Ohio, Oklahoma)

• Safe driving law (Arkansas, California, North Dakota, Oregon, Rhode Island, Texas, Washington)


Trending and Emerging Issues

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41% were very or extremely challenged by marijuana

laws(recreational and medical)

38% were very or extremely challenged by

paid family leave/paid parental leave

36% were very or extremely challenged by paid sick

leave

31% viewed reasonable accommodation

requirements as very or extremely challenging

26% believed pay equity trends (i.e. salary history

ban) were very or extremely challenging

26% viewed predictable scheduling laws as very or


Survey Says

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• Actively monitor existing/emerging state and local law developments stay on top of trends

• Know which state/local laws apply to workplace and workforce – determine how to manage conflicting laws

• Determine how employer will handle conflicts with federal law

• Decide how to address state and municipal differences in employee handbooks/ policies

• Determine how to handle when laws are updated

• Train supervisors and employees on need-to-know state and local laws and key differences



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• Internal and external factors shape recruiting, hiring and retention

• Technology/mobile devices enhance communications and productivity

• Increase in flex work/gig economy/alternative work arrangements greater work/life balance/control

• Automation, smart devices, robotics, artificial intelligence challenging traditional workers

• Changing societal demographics aging Baby Boomers, Millennials/Gen Z, managing multiple generations

• Global marketplace

• Using HR data- predictive analytics

Challenge #3: Workforce Planning

21st Century Workforce Trends Affecting Employment

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52% viewed increasing employee engagement, morale and satisfaction as very or extremely

challenging

48% viewed retaining employees as very or extremely

challenging

47% were very or extremely challenged

when it came to succession planning

46% viewed aligning retention strategy with business objectives as very or extremely

challenging

44% viewed upskilling employees for future

responsibilities as very or extremely

challenging

43% viewed managing performance and

providing professional development

opportunities as very or extremely challenging

29% stated that joint employment and the changing definition of the employer was very

or extremely challenging


flexible working /telecommuting

Survey Says

Almost 50% viewed workforce planning as one of their top 3 workplace challenges

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• HR should play an active role in shaping the evolving workforce – assess short/long term goals

• Align HR objectives with business objectives

• Investing in talent - greater return on investment/improves economic performance

• Bring creative solutions to business challenges

• Follow trends in technology, industry and diversity

• Utilize data analytics in all phases to track progress (recruiting/hiring, performance, retention)



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Hiring

• Focus on skills, competencies, talent

• Keep budget/business goals in mind

• Consider gig and contract workers

• Utilize technology and mobile apps

• Be aware of new laws banning inquiries

Training

• Continue professional development/education and building long term skills

• Focus on leadership/mentoring/support to move into higher position

• Highlight key competencies and how they can benefit organization



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Performance

• Who will conduct reviews and how often

• Consider goals of performance reviews/what to accomplish

Engagement/Retention

• Assess who the employer is losing and why

• Identify risks

• Consider how to retain (increased compensation/benefits/work-life balance)

Managing Generations

• Consider retirement options for Baby Boomers – packages/benefits offered

• Account for unique skills/talents of younger generations – Millennials and Generation Z

• Consider retaining older workers in changed capacity



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• Establish clear policies for employees who work remotely or have alternative work arrangements setting

forth the employer’s expectations regarding:

◦ Availability during business hours

◦ Meeting deadlines

◦ Completing projects in timely manner

◦ Maintaining accountability

◦ Keeping track of and recording time properly

◦ Cautioning about working unauthorized overtime

• Guidelines for gig workers/independent contractors/temporary or contingent workers

◦ Make sure properly classified and provided with workplace protections

◦ Critically evaluate all working relationships to ensure compliance with federal, state, local laws



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• Rapid pace of technological developments/omnipresent internet/mobile devices

• Significant impact on the workplace in terms of mobility, communication, productivity and efficiency

• Risks with regard to safety and security- can lead to data breaches and loss of confidential information,

damage employer’s reputation

• Tremendous amount of information digitally stored

• HR needs to take steps to minimize risk of cyber breaches/ protect digitally-maintained information

Challenge #4: Threat of a Cyber Breach

Increasingly Digital World Carries Risk for Employers

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65% found preventing cyber breaches to be very or extremely challenging

Survey Says

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• Safeguard confidential information and minimize the risk of a cyber breach

• Critically assess, audit and properly safeguard the confidential information belonging to

◦ Employers (i.e., trade secrets and confidential and proprietary information)

◦ Employees (i.e., credit reports, social security numbers and driver's license information, health and

medical records)

◦ Customers (i.e., credit card data and purchasing records)

• Make sure employer’s confidential information secure – encrypted, firewalls, increased protections

• Encourage third party vendors, partners and providers to take same security measures

Challenge #4:Threat of a Cyber Breach


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• Develop, implement and enforce policies to minimize risk:

◦ Confidentiality policies

◦ Privacy policies

◦ Mobile device policies

◦ Policies regarding social media and internet use

◦ Policies relating to business ethics and employee conduct

• Utilize nondisclosure agreements

• Train employees and supervisors

• Screen potential employees for dishonest or fraudulent conduct

• Conduct exit interviews make sure equipment/technological devices are returned, access to confidential

information terminated

Challenge #4: Threat of a Cyber Breach


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• Employers need to attract, hire and retain the right talent in light of

◦ Shifting business needs

◦ Federal, state and local legislation (ban the box/criminal history), social media privacy, salary

history measures, EEO laws, affirmative action)

◦ Evolving technologies- mobile analytics

◦ Predictive analytics

◦ Global marketplace and aim to hire diverse workforce in light of immigration obstacles

Challenge #5: Recruiting

21st Century Challenges

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59% viewed finding high quality applicants as very or


31% viewed aligning talent acquisition strategy with

business objectives as very or extremely challenging

33% state that it is very or extremely challenging to

eliminate unconscious bias

33% are very or extremely challenged by using

predictive analytics in recruiting and hiring

29% are very or extremely challenged when it comes to optimizing mobile recruiting

Survey Says

Almost 50% viewed recruiting as one of their top 3 workplace challenges

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• Create comprehensive recruiting strategy

◦ How/where it will recruit

◦ Tools to use, who will lead

◦ Consider how recruiting strategies will differ for different positions in organization

• Use social media/mobile recruiting wisely and do not access private information

• Utilize a diverse recruiting team which will expand pool of applicants

• Do not rely solely on word of mouth hires use internet, job fairs, trade organizations, colleges



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• Review job applications/advertisements for discriminatory language (i.e., salary history/criminal history)

• Ask same questions of all candidates and evaluate against pre-established criteria

◦ Why should we hire you

◦ What do you consider your greatest achievement/greatest obstacle

◦ Describe one thing about yourself you would like to improve

◦ What do you think you can bring to the organization

• Comply with all laws regarding recruiting/hiring and train recruiters

• Overcome unconscious bias

◦ Blind recruiting

◦ Manually screen/black out names before passing on to managers

◦ Utilize software to remove identifiers such as name, age, gender

• Conduct preemployment screening tests in uniform/nondiscriminatory manner

• Handle background checks/credit checks/drug testing carefully and comply with legal requirements



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Challenge #6: Technology at Work

Benefits of Technology, the Internet and Social Media• Communications with coworkers and customers

• Recruiting and hiring purposes

• Management/ training- monitor performance

• Monitoring health/safety/security – internal and external threats/dangers

• Monitoring employee activity/productivity

• Smart offices environmentally conscious/optimize space/monitor usage/conserve energy and resources

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Risks• Negative postings damage employer and business brand

• Disclosure of confidential information and trade secrets

• Harassment and discrimination claims

• Decreased employee productivity

• Wage and hour issues/claims

• Invasion of privacy and disclosure of private and personal information

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47% were very or extremely challenged by managing mobile devices/wearable

technology/internet of things


managing technology and social media at work

36% were very or extremely challenged when it comes to preventing employees form

working off the clock (answering emails after

hours)

29% were very or extremely challenged with respect to

using social media to enhance recruiting, hiring

and business brand

27% were very or extremely challenged when it comes to preparing for use of robotics,

artificial intelligence and automation that replaces

workers

Survey Says

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• Create comprehensive legally compliant policies protecting employer’s legitimate business interests

◦ Guidelines for proper use of social media, internet, mobile devices, wearable technology

◦ Strong confidentiality policies – handling personal information/intellectual property and procedures in

event of breach

◦ EEO policies prohibiting discrimination, harassment, retaliation minimize cyberbullying/ harassment

via social media

• Provide supervisors and employees with training on acceptable use of technology and how to

handle/secure/destroy confidential and proprietary information



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• Carefully conduct surveillance and monitoring – provide advance notice and no do not infringe on privacy

• Strike balance employee expectations of privacy vs protecting employer's legitimate business interests

• Carefuly conduct surveillance and monitoring – provide advance notice and no do not infringe on privacy

• NLRA allows employees to engage in protected concerted activity to improve wages/hours/conditions and

employer may not infringe upon this or lawful union activities

• Comply with any federal laws (i.e., GINA, Computer Fraud and Abuse Act) and state laws (i.e., genetic

privacy, biometric data, social media)



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• Current events mass shootings, bomb threats, terrorist attacks

• Need to implement procedures to take in case of active shooter situation

• Employees and supervisors need to be mentally and physically prepared to respond and manage aftermath

• Complex set of state gun laws – gun rights differ state to state

• Gun laws impact employer weapon policies and employee right to possess firearms

• Need to increase awareness of workplace violence and work to prevent

Challenge #7: Workplace Violence

Need to Minimize Risk and Prepare for Active Shooter Situation

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45% stated that preparing for or responding to an active shooter or workplace violence situation was very or extremely challenging

Survey Says

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• Background screen applicants but be careful about ban the box/criminal history laws

• Implement zero tolerance workplace violence policy- clear complaint procedure to report incidents

• Institute policy that weapons not permitted on employer’s premises and set out consequences

• Communicate procedures to take in case of violence or active shooter



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• Provide workplace violence prevention training and drills including information on

◦ Safe spots to take during incident

◦ How to recognize sound of gunshots and react to gunfire

◦ Understand when and where to call 911

◦ React to law enforcement

◦ Adopt survival mindset during crisis

• Conduct audit to identify gaps in safety and security such as broken locks and security systems

• Institute controls and make it more difficult to access workplace

• Assemble crisis kits containing radios, floor plans, personnel lists, flashlights

• Identify evacuation routes/exits in case of emergency



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• Rapid rise of leave laws on the federal, state and local level

◦ Federal FMLA, ADA, USERRA, push for paid sick leave, Trump proposal for maternity leave

◦ State and local level paid sick leave, military leave, domestic violence leave, bereavement leave,

donor leave, school activities leave

• Managing their complex interrelationship

• Consider leave as a benefit/perk

Challenge #8: Leave Protections

Various Types of Leave Now Legally Required

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• Injured employee may be subject to FMLA- ADA – workers compensation

• Sick employee may be subject to State and local paid sick leave laws- ADA

• Pregnant employee/new parent may be subject to FMLA, state family leave laws, paid family leave

insurance

• Military employee may be subject to USERRA – ADA- family military leave- state military leave laws


Intersection of Leave Laws

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46% found tracking and complying with rapidly

changing state leave laws to be very or extremely

challenging

43% found tracking and complying with rapidly

changing municipal leave laws to be very or extremely

challenging

39% found determining what federal, state or local leave

laws to apply to specific employee situations to be

very or extremely challenging

36% found determining an overall business strategy for

leave to be very or extremely challenging

31% found paid family/paid parental leave to be very or


25% found paid sick leave to be very or extremely

challenging

Challenge # 8: Leave Protections

Survey Says

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• Determine which leave laws apply to each workplace

• Review and revise policies and procedures, employee handbooks and workplace notices to properly advise

employees of their rights under leave laws

• Review all paid time off, vacation or other paid leave policies and reasonable accommodation policies to

determine if other policies may need to be created

• Avoid blanket policies – leave wiggle room

• Train supervisors on leave laws and how to handle leave requests

• Understand how different leave related laws intersect

• Determine strategy if multistate employer

• Decide if you will go beyond legal requirements – may reduce turnover/absenteeism and increase

productivity/retention/morale

• Avoid wrongfully denying leave request – could lead to employer liability



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Advantages

• Benefits can help attract/retain employees

• Increase employee engagement\

• Provide competitive advantage

• Keep employees healthy/happy

• Decrease absenteeism/tardiness

Challenges

• Compliance with ERISA, COBRA, ACA, HIPAA, GINA

• Effectively communicating to workforce/ understanding requirements

Challenge #9: Benefits/ACA

Benefits Important Part of Workplace

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32% were very or extremely challenged by establishing

compliant wellness programs to reduce costs

and improve employee health

26% were very or extremely challenged with

respect to determining which voluntary benefit

programs provide the best ROI


respect to adjusting different benefit offerings to different

employee stakeholders

36% were very or extremely challenged with respect to effectively communicating the value of benefits to the

workforce


respect to aligning employee benefits with

business strategies

Survey Says

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• Compare benefit package to competitors? Are you following latest trends?

• Offer creative benefit options (beyond health/dental/vision) tuition reimbursement, flexible work time, job

sharing, commuting benefits, gym membership, telemedicine, employee assistance programs, concierge

services (child care, pet care, dry cleaning), student loan assistance, financial planning

• Manage benefit needs of different cohorts different generations in workforce - reject cookie cutter approach

• Consider supplemental and voluntary options/ personalization and customization

• Understand increased use of technology and mobile applications

• Make sure that any wellness programs are compliant

• Comply with ACA reporting requirements in accurate and timely manner

• Understand obligations to each employee under ACA



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• Offer creative benefit options - tuition reimbursement, flexible work time, commuting benefits and gym

membership, healthcare, dental and vision insurance, telemedicine

• Manage benefit needs of different cohorts different generations in workforce - reject cookie cutter approach

• Consider supplemental and voluntary options/ personalization and customization

• Understand increased use of technology and mobile applications

• Make sure that any wellness programs comply with the EEOC’s rules under the Genetic Information

Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) effective January 1, 2017

• Employer must complete the proper forms accurately and in a timely manner



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• Employee mental health/fostering stable and healthy workforce is a top concern

• Not as easily recognized as physical ailments but may include PTSD, depression, bipolar, schizophrenia

• Increased employee mental health increased employee productivity, efficiency, decreased absenteeism,

less likely to engage in workplace violence/negligent acts, less likely to bring negative press/bad reputation

and attention to workplace, increased safety and decreased workplace accidents

Challenge #10: Mental Health/Wellness

Issue to Focus On

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1 in 5 adults in the US experiences mental illness in

a given year


mental health issues

1 in 25 adults in the US experiences a serious mental

illness in a given year that substantially limits one or more major life activities

Survey Says

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• Comply with various laws FMLA, ADA, state/local laws

• Do not pry into mental health issues- respect privacy

• May need to provide accommodations

• Determine whether individual can perform essential functions of the position

• Have a legitimate non-discriminatory reason for adverse action

• Intervene if employee poses direct threat to self or others- safety of workplace paramount

• Do not stereotype individuals



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• Consider benefits that enhance/address mental health

◦ Access to substance abuse services/behavioral health treatments/wellness initiatives

◦ Access to employee assistance programs

◦ Provide counselors experienced with drugs/alcohol, depression

◦ Paid time off, personal time, vacation days

◦ Access to gyms and flexible work arrangements

• Train supervisors

◦ Need to be aware of signs of mental health issues – tardiness, decreased performance, increased

errors, sloppy work mood swings, decreased energy

◦ Recognize warning signs of depression, suicide, violent tendencies- address issues before escalate

◦ Make sure medical information remain confidential – keep records separate from personnel file

◦ Do not reveal information about mental health- only disclose on a need to know basis



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• Communication tool between employer and employees

• Sets forth standards for employee behavior, workplace conduct and performance expectations

• Used by managers/supervisors as a guide to handle common issues

• Incorporate an employer’s goals and mission as well as key policies

• Provides fairness and consistency across board and can assist in enforcing policies

• Can show employees knew of policies and agreed to abide by them

• Important tool in preventing and defending against lawsuits

Challenge #11: Employee Handbooks

Critical to Implement and Update Your Employee Handbook

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42% were very or extremely challenged by ensuring

handbooks read or understood by employees

41% found keeping current with new laws/trends to be


36% were very or extremely challenged by managing

handbooks as a multistate employer and addressing

conflicting/overlapping requirements

28% were very or extremely challenged by managing handbooks as a global

employer with conflicting/overlapping

requirements

36% were very or extremely challenged by incorporating municipal requirements into

employee handbooks

26% found aligning employee handbooks with business objectives to be


23% found the NLRB invalidating employment

policies to be very or extremely challenging

Survey Says

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• Monitor developments at federal, state, local level – understand which laws apply

• Rapidly evolving developments – EEO, accommodations, leave, smoking, predictable scheduling, equal pay

• Update handbook on annual or semiannual basis

• Take right approach for particular workforce- multistate/multijurisdictional employer

◦ Handbook based on federal requirements, provide state supplements

◦ Use separate handbooks for each state

◦ One handbook with uniform policies across states providing greatest benefits to all

• Draft in clear/concise/unambiguous manner

• Do not infringe upon Section 7 right to engage in protected concerted activity

• Careful about policies - social media, contact with media, confidentiality, investigations, communications

• Make sure readable, relevant, interesting- provide anecdotes/examples/narratives and color/visuals/graphics

• Require employees to acknowledge receipt, consent and understand policies

• Provide frequent training on handbook policies



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Lutheran Heights case

• Facially neutral workplace rule unlawful if could be "reasonably construed" by employee to prohibit exercise

of NLRA rights. Many "civility" rules found to infringe on employees' "mutual aid and protection" rights

Boeing case

• New standard based on whether a facially neutral policy, rule or handbook provision, when "reasonably

interpreted," would potentially interfere with the exercise of NLRA rights

• NLRB will weigh (1) Nature and extent of any potential impact on workers‘ NLRA rights versus (2) Legitimate

employer justifications for needing the rule/business need

◦ Lawful rule because it doesn’t prohibit/interfere with NLRA rights and impact on rights outweighed by rule’s

justification

◦ Rules that warrant individualized scrutiny as to whether it could be reasonably interpreted to prohibit/interfere with

rights and whether adverse impact outweighed by legitimate justifications

◦ Rules that would prohibit or limit NLRA protected conduct and the adverse impact on NLRA rights is not outweighed

by justifications associated with rule


Recognize New Test for Workplace Civility Rules

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• Efficiency, safety and productivity priority especially for safety sensitive positions

• Marijuana conflict federal law prohibits marijuana use vs. state law allows medical/ recreational purposes

• Rise in use of prescription drugs/narcotics and opioid epidemic

• Challenges for employers

◦ Decreased productivity

◦ Increased risk of accidents/hazards on job (i.e. chemicals, machinery, driving, children)

◦ Decreased efficiency

◦ Increased insurance costs/premiums

◦ Reduced profits

◦ Increased workers comp claims

◦ Increased absenteeism/tardiness

◦ Increased inattention

◦ Increased turnover

Challenge #12: Drug Testing/Abuse

Drug Testing and Substance Abuse Key Area of Concern

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35% were very or extremely challenged by managing

employees who use marijuana medically or recreationally

32% found addressing the impact of substance abuse

(heroin and opioid addiction) on the workplace to be very or


13% were very or extremely challenged by drug testing employees and applicants

Survey Says

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• Develop/implement/enforce drug free workplace policies prohibit use of unlawful drugs on employer’s

premises and during working time, prohibit misuse of prescription drugs

• Treat drugs like alcohol prohibit employees from bringing lawful/unlawful substances to work because of

effect on safety and productivity

• Avoid quick decisions on employees who may be using drugs may be protected by ADA

• Employers may need to provide reasonable accommodations

• Be careful about taking action based on lawful off-duty conduct

• Drug testing

◦ Comply with latest laws as rapidly changing area

◦ Testing depends on industry/position

◦ Consider whether it is essential to test for non-safety sensitive positions

◦ Notify employees of drug testing methods and means

◦ Consider using different mechanisms (i.e., field sobriety tests capture use rather than traces, oral swab

saliva less invasive, less fraud, less cost, quicker turnaround)

Challenge #12: Drug Testing/Abuse


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• Race/color sex, age, religion, national origin, disability

• Gender identity/sexual orientation

• Political affiliation

• Work experience

• Learning style

• Education

• Family/caregiver status

• Physical characteristics

• Pregnancy/lactation

• Medical marijuana user

Challenge #13: Diversity and Inclusion

Goes Beyond Traditional Notions

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• Business and cultural benefits

• Improve employee productivity and efficiency

• Obtain the best talent

• EEO compliance

• Positive impact on employer’s bottom line

• Positive impact on brand, customer and employee relationships

• Creativity, innovation and new ideas – viewpoints/ perspectives

• Opportunities for learning, growth, development, challenges

• Increased adaptability/ flexibility - changing marketplace/global world

• Employee retention/ less turnover, mutual understanding/ respect

• More civil workplace –fairness, decrease conflict and reduce complaints


Benefits of Diversity in an Increasingly Global World

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• How to reconcile cultural fit and diversity/inclusion

• Time to manage diversity efforts

• Communication (language/cultural barriers)

• Resistance to change

• Increased conflicts/tension - decreased productivity/turnover

• Stereotypes, prejudice and discrimination

• Perceived preferential/favorable treatment

• Cost/resources -training, accommodation

• Lack of leadership/support from CEO/senior management and leaders

• Not aligned with business strategies/plans/priorities

• Size or location of workplace

• Low turnover


Challenges of Diversity in an Increasingly Global World

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Survey Says

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29% found recruiting a more diverse workplace to be extremely or very

challenging

30% found increasing women in leadership

roles to be extremely or very challenging

33% felt very or extremely challenged

by increasing minorities in leadership roles

23% were very or extremely challenged

by developing a workplace culture of

inclusion

• HR should be proactive and incorporate diversity into the employer’s organization create an inclusive

workplace with training and policies to support

• Align diversity with business goals and corporate strategies

• Obtain commitment from key stakeholders and upper management

• Understand benefits diversity bring to the organization

• Mentoring programs- individuals from different backgrounds can work together



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• Job ads neutral and free of bias

• Attract wide variety candidates various sources, look beyond geographic pool

• Focus on job requirements, ability, qualifications, performance of a particular candidate

• Utilize a diverse panel of interviewers and avoid discriminatory questions

• Be careful about background checks- Ban the Box, discrimination against immigrants

• Onboard into an inclusion workplace emphasizes open door policy


Incorporate Diversity into Recruiting

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• Develop and enforce policies and practices encouraging diversity and tolerance

• Prohibit discrimination and harassment

• Provide reasonable accommodations unless undue hardship – disability, religion, LGBT, lactation, caregiver

• Consider utilizing employee resource groups or affinity groups for those who share common traits or

characteristics (i.e., working mothers, LGBT individuals, veterans, Hispanics and individuals with disabilities)

• Provide diversity and sensitivity training to all employees and supervisors – address stereotypes/prejudices



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• Wage gap 47 % of workers are women, 82 cents for every $1 man earns

• Minorities – wage gap increased

• Equal pay laws- prohibits compensation discrimination unless based on education, experience, qualifications

• Compensation includes wages, benefits, bonuses, equity

• Laws aimed at increasing wage transparency – ban employers from prohibiting wage discussions

• Trending – salary history bans prohibit an employer from

◦ Requesting/requiring applicant to provide salary history

◦ Relying on salary history in determining whether to offer employment or what salary to offer

◦ Asking about salary history info on job application or duping interview

◦ Conducting internet or background checks to determine salary history

• If voluntarily disclosed may be able to consider

• Employers can generally discuss salary expectations/ranges

Challenge #14: Pay Equity

Measures to Address Pay Equity and Increase Fair Pay

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Survey Says

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26% were very or extremely challenged with respect to pay equity trends (i.e., salary history bans, laws banning employers from prohibiting

wage discussions)

• Provide training to managers who recruiter/interview/ hire

• Do not ask about salary – focus on skills and qualifications

• Remember still may discuss salary ranges and expectations

• Can ask about hours worked, sales/performance history, book of business/profits to justify wages

• Update job applications, forms, materials- remove salary history questions

• Avoid seeking salary history info during background checks/ verification inquiries

• Can still use market survey data/benchmarking info to provide ballpark salary

• Establish range of salaries – tie to merit, skills, qualifications

• Document factors/criteria used to determine salary, promotions, bonuses

• Document if salary voluntarily disclosed


To Comply with New Salary History Laws

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• Review job ads/descriptions – use neutral/fair/nondiscriminatory language – focus on skills/qualifications

• Establish clear guides for pay/bonuses- tie to merit/productivity – objective, predictable, measurable

• Train managers/supervisors on salary structure and encourage them to keep thorough records

• Maintain clear records as evidence of compensation decisions

• Provide timely performance evaluations so employees know if they are meeting expectations

• Identify any wage gaps and aim to eliminate/adjust unless based on legitimate factor

• Do not cut pay to become legally compliant- increase pay of lower paid employee


To Audit and Review Pay Practices and Compensation

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• Current events have brought harassment issues under a spotlight

• Tremendous risks for employers and liability depends on whether supervisor, coworker or third party

• May face EEOC charge, lawsuit, penalties/fines, negative press, damage to reputation

• All individuals in the organization should be held to same standards of conduct- no special treatment

Challenge #15: Harassment

Issue in the Spotlight

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• Develop/implement/enforce zero tolerance policy for harassment – include in handbook

• Harassment goes beyond sexual harassment – also based on race, religion, national origin, LGBT status

• Wide variety of conduct – physical, verbal, written, internet/cyber harassment

• Multichannel complaint procedure including anonymous hotline

• Distribute policy and make sure employees/supervisors acknowledge policy and consent to terms

• Provide training to all employees and supervisor – need to know how to identify/report

• Once on notice – document and initiate investigation

• Neutral investigator- should review all evidence and conduct interviews

• Keep confidential and only reveal on need to know basis

• Take interim measures – separate complainant and alleged harasser, change reporting lines

• Make sure not to retaliate against complainant

• Impose discipline- up to and including termination

• Provide women/minorities with greater opportunities to succeed- place in management positions

Challenge #15: Harassment

To Address Harassment

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• Review and revise their workplace policies and practices

• Develop employee handbooks and distribute policies to employees

• Train supervisors and employees

• Maintain through records and documentation

• Make sure to remain legally compliant

• Be proactive and prepared to respond to changes in a meaningful way

Final Thoughts

Know How to Respond to Challenges

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Documents

By: Beth P. Zoller, XpertHR Legal Editor · Evolving technologies- mobile analytics Predictive analytics Global marketplace and aim to hire diverse workforce in light of immigration