The Equal Employment Opportunity Commission (EEOC) in February released a detailed breakdown of workplace discrimination cases the agency received in 2015. According to the EEOC, it secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through mediation and litigation. The five top charges in the nearly 90,000 cases the agency resolved were allegations of retaliation (44.5% of all charges filed) and discrimination based on race (34.7%), disability (30.2%), sexual harassment (29. 5%) and age (22.5%).
What does all this mean to home health care organizations? With the EEOC’s proactive approach to addressing allegations of discrimination and a new labor ruling issued last year which opens the door to wage-and-hour disputes by caregivers, it’s critical that home health care organizations have a robust, comprehensive employment practices loss prevention and HR Compliance program in place to mitigate the potential for workplace lawsuits. This program should include but is not limited to the following:
- Implement practices in the organization that are designed to widen and diversify the pool of candidates considered for employment openings.
- Review the duties, functions, and competencies relevant to each job, and create objective, job-related qualification standards related to those duties, functions, and competencies. Ensure they are consistently applied when choosing among candidates.
- Make sure that selection criteria do not disproportionately exclude certain racial groups. For example, if educational requirements disproportionately exclude certain minority or racial groups, they may be illegal if not important for job performance or business needs.
- Review employment applications for compliance with any state and federal laws regarding prohibitive questions or statements that should not be included.
- All interview questions must be appropriate and relate directly to the position and the applicant’s ability to perform the job’s essential functions.
- If you’re using an outside staffing firm, make sure its practices are HR compliant when searching for candidates.
Employment Practices and Loss Prevention
- Include extensive policies and procedures in your organization’s employee handbook that address workplace exposures relating to discrimination, sexual harassment, hiring, and termination.
- Train and educate your employees, managers and supervisors on policies and legal issues, making sure the “front lines” are aware of retaliation exposures. Enforce policies fairly and consistently throughout your organization. This will greatly help to reduce the potential for an employment related issue or lawsuit.
- Hold workplace discrimination and sexual harassment training for all employees so that everyone is clear on what types of behavior are prohibited; include examples. One of the most critical measures an organization can take is to foster a culture of inclusiveness and respect for individual differences.
- Clearly describe the complaint process during the training and assure employees of their confidentiality should an incident occur.
- If a workplace issue does arise, foster open communication and early dispute resolution. This may minimize the chance of misunderstandings escalating into a legally actionable employment practices issue. Also, be sure to document appropriately. Evidence is a powerful tool during legal disputes. Documenting will enable you, if necessary, to offer proof of actions that were taken.
- Ensure that your HR department or the individual(s) handling employee-related issues for your organization stays current on the evolving legal landscape in order to prevent gaps in knowledge and to minimize risks. A perfect example of this is the Department of Labor’s new Home Care rule issued last year clearing the way for about 2 million home-care workers to be eligible for a higher minimum wage and overtime pay. Consult an attorney to help reduce the potential for losses when new or changes to legislation take place.
There are many other must-do HR Compliance measures, some of which we will be discussing in future articles including the importance of an employee handbook, state requirements for conducting background checks, the need to properly classify employees and how the new DOL ruling on joint employee issues impacts home health care franchisors and franchisees, among others. Our focus at Manchester Specialty Programs is in the home health care industry, providing a suite of insurance and risk management products to help organizations protect their people, clients, property and assets. Among the policies we offer is Employment Practices Liability Insurance, which covers workplace-related allegations of discrimination, harassment, retaliation and other issues. To learn more about our insurance programs for the home health care industry, please contact us at 855.972.9399.