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For over a century, a Reconstruction Era civil rights law (42 USC Section 1981) has been thought of as a tool to combat racial discrimination. Now, for the second time in four years, the US Supreme Court has agreed to consider whether the law also prohibits discrimination on the basis of citizenship (the first time, the case under review was settled before the Court reached a decision). If the High Court agrees with the federal appeals court in New York City, the cost of distinguishing between citizens and non-citizens goes way up.

Note that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination on the basis of citizenship. Only one federal law, the Immigration Reform and Control Act of 1986 (IRCA), prohibits citizenship discrimination in employment.

There are striking differences between IRCA and Section 1981:

Immigration Reform and Control Act (IRCA)	Section 1981
IRCA does not apply to employers with three or fewer employees.	Section 1981 has no numerical threshold for coverage.
IRCA bars employers from engaging in citizenship discrimination when referring, recruiting, hiring and discharging.	Section 1981 bans discrimination in the making and enforcement of contracts, including employment contracts. Section 1981 applies to all aspects of the contractual process and relationship, and covers all forms of workplace discrimination
Violations of IRCA are remedied administratively. An administrative law judge may order the hiring of adversely affected individuals, with or without two years of back pay. Charges must be filed within 180 days.	Violations of Section 1981 are remedied through civil lawsuits and jury trials. Legal and equitable relief is available, including unlimited compensatory and punitive damages. State personal injury time limits apply.
Under IRCA, employers have the explicit right to give a citizen preference over an equally qualified legal alien.

Over 17.6 million documented aliens were living in the United States in 1990, plus an estimated additional 5 million undocumented aliens.

Facts of the case under review
Linden Anderson immigrated to the United States from Jamaica in 1968 and began working for the carpenters’ union in 1973. In 1992 he was elected to the position of business representative of Local 17. At that time, the union’s constitution required that union officials be citizens of the country in which their local is located.

In 1994, Anderson was removed from his position after being told that he was ineligible to serve as business representative because of his lack of US citizenship. He sued, claiming alienage discrimination in violation of Section 1981. The Court of Appeals for the Second Circuit ruled in his favor, finding that Section 1981 prohibits private alienage discrimination.

Arguments that Section 1981 applies to citizenship
According to the Second Circuit, private alienage discrimination has been outlawed by Section 1981 since 1991, at least. The Civil Rights Act of 1991 amended Section 1981 by adding language that explicitly extended the law to private parties.

The court looked at the juxtaposition of the words “persons” and “citizens” in Section 1981 to determine that the law proscribes alienage discrimination. The law states that:

All persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens …

Arguments that Section 1981 does not apply to citizenship
The union argues that the Second Circuit’s decision “ushered in a broad national policy prohibiting employers, and all other private contracting parties, from distinguishing between citizens and non-citizens—a distinction which Congress itself now draws” by requiring that federal civil service employees be US citizens.

It is doubtful that Section 1981 has ever prohibited alienage discrimination of any sort, asserts the union, pointing out a legion of cases holding that Section 1981 prohibits solely racial discrimination. The law does not expressly prohibit alienage discrimination.

Because Congress has declined to protect aliens under Title VII for the 35 years since its enactment, it seems clear that Congress would not protect aliens with the even broader remedies available under Section 1981, the union reasons. Moreover, protecting aliens under Section 1981 would conflict with IRCA’s comprehensive approach to the entire field of immigration control, notes the union. IRCA proscribes the hiring of illegal aliens.

The Supreme Court’s decision is expected during the Court’s 1999-2000 term.

Cite: United Brotherhood of Carpenters and Joiners of America v. Anderson, USSCt Dkt No. 98-958, cert granted April 26, 1999. Reviewing Anderson v. Conboy (2dCir 1998) 74 EPD 45, 552, 156 F3d 167.

 

 

Here are some search engines, some not as well-known, that you can use to save research time and money for your organization.

www.dejanews.com
Searches online news groups, forums, etc.

www.liszt.com
Searches for listservs (mass e-mail groups) on hundreds of subjects. For example, if you are doing research on relocation, you could see if there is a relocation listserv.

www.reference.com
Searches forums and mailing lists.

www.corporateinformation.com
Massive search mechanism of companies in the U.S. and ’round the world.

www.companysleuth.com
You put in a list of companies you want to track (i.e. Oracle, Disney, Manpower, USWeb, etc.) and it sends you e-mail updates on what’s going on with that company.

nt.excite.com(no www)
Searches news articles.

SOURCE: Todd Raphael, Workforce Online, April 1, 1999.

Issue:
As benefits manager, you have spent the last year researching, analyzing and designing a new retirement plan option for your company. For many employees, this new option would provide for greater benefits than those currently available.

On April 5, your proposal was presented to the senior management team. It was determined that with a few adjustments, the new retirement option will be fully implemented and available to employees retiring on or after August 1.

Several employees are considering retirement within the next several months, and knowledge of the new plan option may affect their retirement decisions. Must you disclose the details of the pending plan to them, if asked?

Answer:
Yes. If an employer gives “serious consideration” to a plan change, the employer has a fiduciary duty under ERISA not to make any intentional or negligent misrepresentations. In addition, employers may have a further duty to correct any misleading information in summary plan descriptions as to which benefit options might be financially advantageous for potential participants.

What constitutes serious consideration?
Serious consideration exists when the following three criteria are met:

• a specific proposal;
• discussed by senior management with the authority to implement the changes;
• for purposes of implementation.

Consideration becomes serious when the subject turns to the practicalities of implementation.

Preliminary steps excluded.
Serious consideration does not include the preliminary steps an employer may take in designing or redesigning a plan, including:

• Gathering data and formulating strategies;
• Ordering an analysis of benefits alternatives;
• Commissioning studies;
• Interacting with upper level management or outside consultants regarding possible plan designs; or
• Engaging in other discussions regarding plan design that fall within the normal course of duties.

Advice to managers

• Once serious consideration is given internally to an action or decision regarding a benefit plan, make sure that information is communicated honestly and forthrightly to those that inquire about it.
• Companies choosing not to disclose plan changes until they are finalized should make eligibility for plan participation retroactive to the date of serious consideration.
• Develop a thorough communication strategy.

Cite: McAuley v. International Business Machines Corp. (6thCir, 1999) Dkt. No. 97-6091.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.

Issue:
As a routine matter, you review your company’s employment application annually. As you read the section on genetic information, you wonder if you can continue to ask whether applicants have undergone genetic testing and what the results are, or whether they would be willing to undergo genetic testing. You remember reading in an industry newsletter that some states are now prohibiting discrimination based on genetic information. Should you request a revision to your employment application?

Answer:
The answer depends on which states are involved. A growing number of states (21) have laws on the books (as of April 1999) limiting the use of genetic information in the workplace. Among those 21 states, some permit inquiries and testing, under narrow circumstances, for susceptibility to potentially toxic chemicals and substances in the workplace. Most states prohibit discrimination and employment decisions based on genetic information. Currently, there is no federal law governing the use of genetic testing and genetic information in the workplace.

What does your state require?
Briefly, these are the rules in the states having genetic information protection laws:

Arizona employers may not consider genetic test results when making employment decisions. Ariz RevStatAnn, Sec 41-1463.

California prohibits employment discrimination based on medical conditions, including genetic characteristics. Cal GovernmentCode, Sec 12926.

Connecticut prohibits employment discrimination based on genetic information and prohibits employers from requesting genetic information from employees or job applicants. Conn GenStat, Sec 46a-60(a)(11).

Delaware prohibits employers from intentionally collecting genetic information from employees, job applicants or family members of employees or job applicants, unless the employer can show that the information is consistent with business necessity or is related to the employer’s retirement policy or administration of an employee welfare or benefit plan. Del CodeAnn, Sec 711(e).

Florida allows employers to have DNA analysis performed with the informed consent of the person to be tested. (DNA analysis includes genetic testing.) If DNA or genetic information is used in any employment decision that results in adverse action, the test must be repeated to verify the accuracy of the first analysis. Fla Stat, Sec 760.40.

Illinois requires that genetic testing information be treated in a manner that is consistent with federal law, including the ADA. The law particularly outlines to whom the results of genetic testing may be disclosed. 410 ILCS 513/1 through 513/45.

Iowa employers may not require or administer genetic testing as a condition of employment or affect the terms, conditions or privileges of employment of anyone who obtains a genetic test. Employees, however, may give written consent to genetic testing to determine their susceptibility to potentially toxic chemicals or substances in the workplace, so long as the employer does not take any action that adversely affects the person’s employment based on the resulting genetic information. Iowa Code, Sec 729.6.

Kansas employers may not seek to obtain or use genetic screening or testing information of an employee or prospective employee to distinguish, discriminate, or restrict any right or benefit otherwise available to an employee or prospective employee. Also, employers may not subject employees or prospective employees to any genetic screening or test. KSA Sec 44-1009.

Maine employers may not discriminate against employees or job applicants on the basis of genetic information, refusal to submit to genetic testing, refusal to make available the results of genetic testing or because an individual has undergone genetic testing or genetic counseling, except when based on a bona fide occupational qualification. 5 MRSA 19302.

Missouri employers may not discriminate against employees or prospective employees based on genetic information. The restriction does not prohibit genetic testing with the written permission of the employee or job applicant or the use of genetic information that is directly related to the person’s ability to perform an assigned job. Mo RevStat, Sec 595.105.

New Hampshire employers may not require genetic testing as a condition of employment and may not make employment decisions based on genetic information. Employees may request genetic testing in writing and with informed consent to investigate a workers’ compensation claim or to determine the employee’s susceptibility or level of exposure to potentially toxic substances in the workplace. Employers, however, may not use this information in making employment decisions. NH RevStatAnn, Ch 141-H:3.

New Jersey employers may not discriminate against employees or job applicants on the basis of genetic information, a refusal to submit to genetic testing or refusal to make available the results of genetic testing. NJ RevStat, Secs 10:5-5 and 10:5-12.

New Mexico prohibits the collection and retention of genetic information without the informed, written consent of the employee or the employee’s representative. MN StatAnn, Sec 24-21-3.

New York employers may not make genetic testing or the providing of genetic information a condition of employment, unless a specific genetic test is directly related to the occupational environment. Employees may request genetic testing, but results may not be used by employers to take adverse employment action. NY HumanRightsLaw, Sec 296(19).

North Carolina employers may not discriminate against employees or job applicants who request genetic testing or counseling services or on the basis of genetic information about an employee or an employee’s family member. NC GenStat, Sec 95-28.1A.

Oklahoma employers may not discriminate against employees or job applicants based on genetic information, except in the determination of insurance benefits. Okla Stat, 3614.1.

Oregon employers may not obtain or use genetic information to discriminate against employees or job applicants, unless the employee or job applicant consents to testing to determine a bona fide occupational qualification. Ore RevStat, Sec 659.036.

Rhode Island employers may not make genetic testing a condition of employment and may not discriminate against employees or job applicants based on genetic information. RI GenLaws, Sec 28-6.7-1.

Texas employers may not condition employment decisions on genetic information or on a refusal to submit to genetic testing. Tex LaborCode, Sec 21.402.

Vermont employers may not discriminate against employees or job applicants on the basis of genetic information. 18 VSA 9333.

Wisconsin employers may not require genetic testing as a condition of employment or discriminate against employees who undergo genetic testing. Employees may request genetic testing in writing for the investigation of a workers’ compensation claim or for determining the employee’s susceptibility to potentially toxic chemicals or substances in the workplace. Employers may not use the requested information to make any adverse employment decisions. Wisc Stat, Secs 111.37(7m) and 111.372.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.

Eight Myths of HRMS Software (IV of IV)

Myth #7:

HR Software requires constant IS involvement
Some HRMS software may require constant IS involvement, but a well-designed and well-implemented product should not. If you are not getting constant IS involvement with your system now (manual or automated), you should not need it with a new automated system, unless of course, the software is poorly designed, poorly conceived, and/or poorly implemented.

Myth #8:

Getting Technical Support is a problem with HRMS Software
There are endless horror stories about lengthy delays for returned calls, inexperienced support reps, voice mail, and of course, program errors (i.e. bugs). Well-designed software minimizes the need for technical support, but there is never, ever a replacement for the human touch. Well-trained reps can answer questions quickly and refer software problems to the development staff for speedy resolution.

During the purchase process, you can determine the quality of support you are going to receive by demo-ing not only the software but also the technical support. Given that everyone is at their best before a sale, you can safely assume that if pre-sales efforts are weak, post sales efforts will be weaker.

SOURCE: Jim Witschger, “HRMS Software—Myths and Reality,” March 1999. http://www.people-trak.com

Want more information on HR Technology? Search the Workforce Online Research Center, or click here to find out about the June IHRIM conference in Salt Lake City.

Cover Story

A Day in the Life of HR
By Allan Halcrow
Here are the colorful, compelling and often comical findings of the Workforce annual survey, “A Day in the Life of HR.”

In ‘Real HR,’ Anything Can Happen
By Allan Halcrow

HR Reform at the United Nations
By Brenda Paik Sunoo

HR in the Drivers’ Seat at AirTouch Cellular
By Linda Davidson

Lights, Camera, Action: HR at E! Entertainment
By Scott Hays

HR on the Run: Two Hours at US WEST
By Shari Caudron

HR Models Work/Life Balance at Dole
By Jennifer Laabs

HR’s Internal Consulting Approach at DHL
By Nancy L. Breuer

Features

Alternative Medicine: The Arrival of New Age Health Care
By Brenda Paik Sunoo

How Great Managers Develop Top People
By Marcus Buckingham and Curt Coffman

Network Your Way to Better Recruitment
By Moshe Even-Shoshan and Tamar Gilad

Departments

Putting It Together
Dealing with a Workforce on the Edge

News Angle
Columbine Tragedy Sparks Debate Over Workplace Violence

The Buzz
The Use of Lie Detectors at Work; Think Two Instead of Team

Forté
HR Sets New Precedent with ‘The Prince of Egypt’ Screen Credit

Legal Insight
Protect Yourself from an Equal-Pay Audit

Money Matters
Stock Options May Depress Returns for Shareholders

Personal Best
Job-Readiness Program Is a ‘Win-Win’ in Atlantic City

Trends & Resources

HR Call Centers: A Smart Business Strategy
By Samuel Greengard
Facilitating employee self-service, an HR call center can reduce administrative work, cut costs and ratchet up customer service.

Planning Is Key to Call Center Success
By Samuel Greengard
An effective call center requires a good strategy with lots of planning. Here are tips to keep in mind.

Internal Resources: Newcourt’s Call Center Streamlines HR Processes
By Scott Hays
Find out how a call center at Newcourt Services, a financing company in Parsippany, New Jersey, lets HR focus on more strategic issues.

More Information: More About CTI
Here’s a list of seminars, Web sites, articles and books you’ll find helpful if you’d like to continue your research about computer telephony integration (CTI).

A Special Report

Human Resources Technology Trends: Beyond the Millennium
By Samuel Greengard
In this special report sponsored by SAP America, Inc., Workforce put together a panel of eight experts and asked them about technological advances that will affect HR and business in the next 10 years.

As plaintiffs become more creative in bringing claims under the ADA, employers must respond with increasingly novel workplace accommodations. The following list details some interesting workplace ADA solutions.

Issue:
An employee with a disability is unable to perform certain marginal functions of her job, yet none of her coworkers has any free time to handle these responsibilities. How can an employer solve this problem without hiring another employee?

Solution:
Switch the marginal functions of two or more employees in order to accommodate the employee with a disability. First, identify marginal functions currently being performed by one or more coworkers that the employee in question is qualified to perform. Then, switch the assignment of these marginal functions to the employee with a disability.

Issue:
A bakery worker with mental retardation had trouble placing cookie dough on baking sheets by precise numbers and patterns. How did the employer respond?

Solution:
A plastic template was made for the sheets, with holes indicating the precise placing patterns, so that the employee was able to perform the job.

Issue:

An employer is faced with choosing between an applicant with a disability and a more qualified nondisabled applicant. What should the employer do?

Solution:
Employers are not required to give preference to an applicant with a disability over more qualified nondisabled applicants. Employers are free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability.

Issue:
A receptionist, who was blind, could not see the lights on her telephone, which indicated whether the telephone lines were ringing, on hold, or in use at her company. What course of action was taken?

Solution:
A light-probe (a pen-like device that detected a lighted button) was purchased. Cost: $45.

Issue:
A medical technician who was deaf could not hear the buzz of a timer, which was necessary for specific laboratory tests. How did the employer respond?

Solution:
An indicator light was attached to the timer. Cost: $27.

Issue:
An individual with dyslexia who worked as a police officer spent hours filling out forms at the end of each day. What did the employer do?

Solution:
The officer was provided with a tape recorder and a secretary typed his reports from dictation rather than from his handwritten reports. Cost: $69.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com/.

Do you use search engines a lot during the course of your day, only to find yourself on a fruitless wild goose chase?

You can greatly improve your chances of success by learning the basics of the system used by many search engines. Here are some important features to know:

• The use of quotes can greatly increase your odds of finding your cyber-treasure. If you want to find out about the HR policies of Ben & Jerry’s, you’re not going to want lots of results about random people named Ben or Jerry. Try typing in “Ben & Jerry’s” in quotes or “Ben & Jerry’s Ice Cream.” It will eliminate results that show Ben and not Jerry, or results about Ben Franklin or Jerry Lewis.
• The use of the word AND can also help you. If you’re searching for info about Ben & Jerry’s and their HR policies, try typing in the following phrase: Ben & Jerry’s AND employees. You will get only references that include both the store and it’s employees, rather than just information about ice cream.
• Try using the phrase AND NOT to eliminate unwanted results. Toledo AND NOT Ohio would help you get results about Toledo, Spain.

SOURCE: Todd Raphael, Workforce Online, March 16, 1999.

Want more information on HR Technology? Search the Workforce Online Research Center, or click here to find out about the June IHRIM conference in Salt Lake City.

Many employers permit their employees to directly deposit all or a portion of their paychecks into checking or savings accounts. Employers may also permit their employees to contribute to traditional or Roth individual retirement accounts or annuities (IRAs) by direct deposit through payroll deduction. Payroll deduction IRAs are a way for employers to assist their employees in saving for retirement.

Traditional IRAs
Employees who make deductible contributions to traditional IRAs, whether by direct deposit through payroll deduction or otherwise, may be able to adjust their Federal income tax withholding on account of these contributions. By adjusting their withholding, employees may not have to wait until they file their tax return to get the benefit of the tax deduction for their contributions.

Employees can review the instructions on IRS Form W-4 (Employee’s Withholding Allowance Certificate) and the worksheet on the back of that form to see if they are eligible for this withholding adjustment.

Roth IRAs
The introduction of Roth IRAs in 1998 presents an additional opportunity for employee retirement savings. As with traditional IRAs, amounts accumulated under Roth IRAs are exempt from federal income tax. Unlike traditional IRAs, contributions to Roth IRAs are not deductible. However, “qualified” distributions from Roth IRAs are excluded from a taxpayer’s gross income.

Cite:IRS Announcement 99-2, I.R.B. 1999-2, CCH PENSION PLAN GUIDE 17,097P-94.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com/.