Employers can obtain guidance on a variety of workplace laws and regulatory requirements through an interactive internet service that has been added to the Labor Department's World Wide Web site.

The service is a collection of nine electronic "advisors" that harness the power of the Internet to deliver easy-to-understand employment law information to employers and employees, according to Labor Secretary Alexis Herman. The service, dubbed E-LAWS for Employment Laws Assistance for Workers and Small Business, should be particularly helpful for small businesses that lack the resources to hire someone to oversee compliance with the various laws covering the workplace, Herman said Nov. 24 during a demonstration of the system at American University in Washington, D.C.

The new service essentially mimics an employer's interaction with a DOL compliance assistance officer by prompting the user with questions to determine whether a workplace or employee is covered by a law or regulation that DOL is charged with enforcing. "I never cease to be amazed" how often workers and employers state their difficulty in understanding their workplace rights and obligations, Herman said. "We live in the world of alphabet soup" of laws and regulations, and determining whether employers or workers are covered by a specific rule is a daunting task, she said.

Four of the nine E-LAWS systems relate to job safety and health requirements. The other systems cover the Family and Medical Leave Act, affirmative action requirements for federal contractors, the Uniformed Services Employment and Reemployment Rights Act, employment reporting for mine workers, and government hiring preferences for veterans. (The E-LAWS service can be accessed on the Internet at www.dol.gov/elaws.)

Bulletin to Management

DON'T BE A HIGH FIVE VICTIM

Attorney Paul Siegal speaking at a recent American Management Association Human Resources Conference says that's what you are when your employee's attorneys hear about their new case and immediately crack open the champagne. Siegal says it is the job of HR managers to keep the organization from losing large fortunes. He offers the following tips:

Applicant Flow Logs - anyone you consider hiring is an applicant. If you get 100 resumes in response to an ad, and you look at them all to pick people to interview, all 100 are applicants, and all 100 belong on your applicant flow log if you keep one. Try a policy saying applicants are accepted only when jobs are available and specified. Then you can ignore unsolicited resumes and not accept walk-in applications unless they are for a specified and vacant job. But you must be consistent. Managers cannot hold some applications for later review.

Application Forms - Insist ALL applicants fill out an application form. Resumes do not have the important statements that need to be signed such as 1) an employment-at-will statement; 2) omission or misrepresentation statement; 3) management's right to change benefits regardless of what has been explained; and, 4) a reference release. The top of the application form should have a statement about disability that directs applicants with a disability that would interfere with participation in the application process to alert the HR department.

Applicant Flow Data - Should be kept by job group since that is how it is analyzed. Do a statistical analysis every quarter which might show if there is a trend developing that might eventually lead to discrimination, and thus give time to take action.

Probationary Status - Siegal says a probationary period will not protect a company from discrimination lawsuits since the laws don't differentiate between new hires and more senior employees in terms of coverage. There is, however, an advantage to establishing a group of employees termed trial employees with policies specific to that group. He recommends that if management intends not to continue employment of a particular trial period employee that the firer is the hirer. Courts will assume that there hasn't been any discrimination (if the manager wanted to discriminate, why would the employee have been hired?) unless something new has come up.

Better Interviews - First, review the job description to verify that it is current, complete and fulfills all the requirements of the Americans with Disabilities Act. Second, call the job description up on screen or retype the essential functions. Add two inches of space between each responsibility on the job description. Use a copy of this expanded format during the interview. The following questions should be asked about each responsibility:

When did you learn to do this?
How often do you do this on your current job?
How often did you do this on your last job?
What problems have you had doing this task?
Do you like to do this task?
How could this job be improved?

All interviewees should get the same questions. This may make for a less friendly interview but interviewers are not trying to make friends.

Alternative Dispute Resolution - Have all new employees sign an ADR agreement. Make it a separate document not part of the handbook. Then go after the people who sign annual agreements or participate in annual bonus programs. As the new year comes up for these people, get them on board - add the ADR statement to their annual agreement. For the rest of the employees you may need to offer "consideration" (something beyond normal compensation) for their acceptance of the ADR agreement. This depends on state law.

Jury Waiver Clause - If a court decides a case is not arbitrable, Siegal suggests a second layer of protection - a jury waiver clause. Trial by judge instead is apt to be faster - saving fees - and fairer.

You may also want to consider some form of employment practices liability insurance.

HR Manager's Legal Reporter, #333

EEOC CONTRACTS TO USE 'TESTERS'

The EEOC recently contracted with two private organizations to further explore the use of "testers" to uncover job discrimination. Two $100,000 contracts--to the Fair Employment Council of Greater Washington and the Legal Assistance Foundation of Chicago--provided for these organizations to conduct pilot programs, with EEOC input, and to report their findings to the agency.

The EEOC has a long-standing policy of supporting the controversial use of testers, but this is the first time the agency has become actively involved in financial support of testing programs.

Employment discrimination testing involves sending carefully matched, equally qualified pairs of individuals to apply for the same--generally entry-level--jobs to determine whether factors such as race, sex, disability, or national origin appeared to influence hiring decisions. The testers do not intend to accept the jobs.

Based on the results of these tester programs, expected to last about a year, the EEOC will determine to what degree it will continue to pursue this approach to addressing discrimination in hiring. "We'll explore whether and to what extent testing is an effective approach for the EEOC attorney who is overseeing the project.

Tester Controversy Continues

In a May 1996 enforcement guidance, the EEOC re-emphasized its position that employment testers and organizations that deploy testers have legal standing to file charges and litigate discrimination claims. However, a 1994 ruling by the U.S. Court of Appeals for the District of Columbia, limited the standing of testers to sue under federal civil rights laws.

In the early part of December, the LAFC filed a Title VII race bias suit against an employer on behalf of two African-American testers who were denied jobs as receptionists. The suit seeks compensatory damages and punitive damages of $500,000.

While the LAFC seeks to curtail an individual case of employment discrimination, the organization also hopes its efforts will set a precedent that recognizes the validity of fair employment testing, said LeeAnn Lodder, the LAFC's employment discrimination project director.

Fair Employment Practices