Reuters reports on other interesting results from the survey, including that 73% think it’s not OK to check Facebook at work, but 66% say checking personal e-mail is fine. Tweeting while at work is considered irresponsible for 72% of respondents, and watching online videos is wrong for 79%.

View article here:Facebook Friends

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The article states:

“Small business owners might be surprised to learn they they are vulnerable to the same worker complaints that plague corporate America. In particular, more employees are suing companies for violating wage-and-hour rules, typically claiming they weren’t paid overtime. A small business that lacks in-house counsel or a human resources department can unwittingly violate federal or state laws covering workplaces. And many business owners, eager to create informal workplaces, simply neglect to educate staff on harassment or discrimination polices.”

The article goes on to list three steps that can significantly reduce the risk of liability: 1. Properly classifying your employees; 2. maintain an effective discrimination/harassment policy; and 3. maintain proper documentation.

You may view the article here: Reducing Risk in the Workplace.

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Hawaii law, HRS Chapter 378, also prohibits age discrimination. Significantly, however, HRS Chapter 378 applies to all employers. Further, all employees regardless of their age are protected against age discrimination. Thus, relatively younger individuals (even those less than the age of 40) who are perceived to be less qualified or skilled for an open position, promotion, raise, etc., because of their relatively younger age, and have been harmed by the decision connected to such perception, could have a potential claim against the employer.

Employer Defenses
There are several defenses available to employers in age discrimination cases. An employer can show that age limits are necessary for the safe operation of the business (e.g., airline pilots). Other valid defenses to an age claim cam be based on reasonable factors other than age including, but not limited to employee tests that can be justified as a “business necessity;” evaluation factors such as quantity or quality of production or educational level, where such factors have a valid relationship to job requirements and are uniformly applied; or physical fitness requirements based on pre-employment or periodic examinations, which are related to standards reasonably necessary for a specific job and are uniformly required.

Procedure
The EEOC or HCRC process charges of age discrimination in basically the same manner as Title VII charges. Under the ADEA, however, charging parties are not required to obtain right-to-sue letters before instituting court proceedings against the employer. Instead, the charging party may initiate a suit against an employer in federal court after a 60-day waiting period following the filing of the charge with the EEOC or HCRC.

Waiver of ADEA Rights
An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended (under the Older Workers Benefit Protection Act or “OWBPA”), sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid.

Requirements
Among other requirements, a valid ADEA waiver must:

1.Be in writing and be understandable
2.Specifically refer to ADEA rights or claims
3.Not waive rights or claims that may arise in the future
4.Be in exchange for valuable consideration beyond what the employee is entitled to receive
5.Advise the individual in writing to consult an attorney before signing the waiver
6.Provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it

If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program (affecting a class or group of employees), additional requirements are imposed by the OWBPA. The employer must provide the departing employees with at least 45 days to consider the release and details regarding those eligible and ineligible for the program.

The employer must include any class, unit or group of individuals covered by the program, eligibility factors, applicable time limits, and job titles and ages of individuals who are both eligible and not eligible for the program.

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Employers should be aware that the Department of Labor will often find misclassification as an independent contractor where the following factors exists, singly or in combination with others:

- The independent contractor performs the same kind of work that employees also perform for the business;

- The independent contractor performs work that is essential to the business;

- The independent contractor is prohibited from selecting their own personnel;

- The independent contractor is not paid per project;
- The independent contractor may not/does not, perform similar services for other businesses;

- The independent contractor lacks the ability to control the manner in which services are performed;

- The independent contractor receives training from the business;

- The independent contractor does not provide their their own tools/suppies.

Employers should take extreme care to ensure independent contractors are properly classified. Failure to do so can lead to significant penalties.

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Level One: Personnel Records
Personnel records, whether in hard-copy form or in computer files, must remain secure at all times. There is no valid reason that any person should have access to an employee’s personnel file unless that individual is required to work with information in the file for a legitimate purpose, such as accessing an employee’s file for information on an accident for a workers’ compensation claim. Even in this situation, Hawaii and federal law require workers’ compensation records to be maintained separately from the employee’s human resources file.

Employees who are authorized to access personnel files should be required to sign confidentiality agreements requiring them to be responsible for maintaining the secrecy of any information they obtain from reading the files. Such agreement should require the employees to agree that they shall not release any information to any unauthorized individual. It should also clearly indicate that the employees understand that any breach of confidentiality or other release of information in the personnel files shall be grounds for immediate dismissal and/or prosecution, if authorized by law.

Level Two: Employment Tests (Excluding Drug Tests)
The results of employment testing, whether for initial employment, promotions or reassignments, should be retained in a separate, secure location and maintained by an employee or employees who is/are specifically authorized to perform this function, whether on a full- or part-time basis.

Level Three: Medical Records and Drug Tests Results
What is true for personnel files and employment tests is especially important for medical records and the results of drug testing. These records should be protected by extraordinary access limitations. In hard-copy form, medical records should be kept in separate, sealed folders with initials across the seal. No one should be permitted to review medical records, even those who are regularly required to post information in personnel folders or files. The only individuals who should be permitted to see medical records are those specifically authorized in writing by the top HR manager. Medical records should be filed in a separate location, away from personnel records and employment testing records, under the custody of specifically designated individuals. Depending on the circumstances, and the context in which the records are being maintained, such records might also need to be maintained consistent with HIPAA.

Computer Systems
Computer system access to personnel files should be coded and should have the same levels of access as discussed above.

Contract or Outsourced Work
The same standards for record access and control should apply to any work that is contracted to outside vendors. Such contractors should sign confidentiality agreements and have the same stringent system of record-keeping and controls that apply to in-house work.

Record Retention
One way to help prevent the unauthorized release of information is to strictly adhere to time limits for record retention. The two broad groups of regulations involving record retention are equal employment opportunity statutes and laws covering other subjects.

Equal Employment Opportunity Statutes
Generally, under U.S. Equal Employment Commission regulations personnel and employment records must be kept for one year. However, such records must be kept for one year following an employee’s involuntary termination. When a charge of discrimination is involved, records must be kept until the issue is resolved. Management should be take care to override the purging of documents, including those in electronic form where it knows or has reason to know that a legal dispute related to the records is or will be initiated.

Requirements Under Specific Laws
In addition to this general regulation, there are record requirements under specific laws:

Age Discrimination in Employment Act
Keep payroll records for three years. Keep employee benefit plans and written seniority or merit plans as long as they are in effect and one year following their termination.

Equal Pay Act
Keep records for two years that apply to wage rates, job evaluation results, documentation of reasons for wage differences of female and male employees, seniority and merit procedures and provi¬sions in collective bargaining agreements. (See the Fair Labor Standards Act for records that must be maintained for three years).

Americans with Disabilities Act
Keep records for one year involving personnel actions such as new hires, promotions and disciplinary actions. Also keep for one year documentation on requests for reasonable accommodation. Keep for two years records pertaining to apprenticeship programs.

Rehabilitation Act of 1973
Federal contractors must keep employment records for two years from the date of an employment decision or the making of a personnel record, whichever is later. Records include applications, job postings, job descriptions, employment offers, tests used, employment policies and procedures, interview notes and personnel records. Record retention is only one year for contractors who either have less than 150 employees or have contracts less than $150,000.

Executive Order 11246
Record and retention requirements are the same as those under the Rehabilitation Act of 1973.

Vietnam Era Veterans’ Readjustment Assistance Act
Record and retention requirements are the same as those under the Rehabilitation Act of 1973.

Other Statutes
Family and Medical Leave Act and Hawaii Family Leave Law
Keep records for three years for such documentation as any disputes about granting leave, dates and hours of leave taken, and written policies and procedures.

Occupational Safety and Health Act and Hawaii law
Keep records for five years after the calendar year ends to which the records apply. Records must be transferred to succeeding employer in the event the business is sold.

Labor-Management Reporting and Disclosure Act
Keep records for five years from the date of the report.

H-1B & H-1B1 Visa Program
Keep payroll records three years from the date they were created. Keep all other records required under the program for one year.

H-2A Visa Program
Keep records for three years after the date the work contract is completed.

H-2B Certification for Temporary Nonagricultural Work
Record retention requirements are the same as those under the H-1B & H-1B1 Visa Program.

McNamara-O-Hara Service Contract Act
Keep records for three years after work on the contract is completed.

Davis-Bacon & Related Acts
Keep records for three years after work on the contract is completed.

Copeland “Anti-Kickback” Act
Keep records for three years after work on the contract is completed.

Employee Polygraph Protection Act of 1988
Keep records for three years after the polygraph is conducted. Records include employer statements explaining the justification for examining an employee in conjunction with an investigation prompted by an economic loss.

Fair Labor Standards Act
Keep records on non-exempt employees for three years that pertain to payrolls, collective bargaining agreements, sales and purchases. Keep for two years records used to compute non-exempt employee wages, such as time cards, work schedules and the related. Hawaii law requires wage records to be maintained for six years. Both federal and Hawaii law require a significant amount of information to be maintained.

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There are several specific steps an employer should take to emphasize to employees that sexual harassment will not be tolerated in the workplace. An employer’s managers and supervisors take on an important role at each of these steps. One of the most important steps is the effective implementation of a sexual harassment policy.

Implementing a Sexual Harassment Policy:

1. Establish a Written Policy Prohibiting Harassment
2. The Policy Should Have the Right Provisions
3. Communicate the Policy and Train Employees
4. Avoid the Pitfall of Communicating the Policy only Once
5. Make Sure the Policy Has an Effective Complaint Procedure

Establish a Written Policy Prohibiting Harassment:

Every employer should have a written policy specifically prohibiting sexual harassment. The policy should be distributed to all new employees, posted, redistributed on a regular basis, and communicated to employees often.

The Policy Should Have the Right Provisions:

The Policy should have language that:

1. States that sexual harassment will not be tolerated;
2. Defines and provides examples of sexual harassment and prohibited conduct;
3. Outlines a procedure for employees to make complaints about sexual harassment, and encourages all employees (not just victims of harassment) to report incidents of unwelcome sexual conduct;
4. Provides several avenues for an employee to report sexual harassment so that the employee has the ability to bypass his or her supervisor, who might be the alleged harasser;
5. Assures that all complaints will be handled as confidentially as possible;
6. Guarantees that employees who complain about sexual harassment will not suffer adverse job consequences as a result of the complaint;
7. States that any employee who engages in unwelcome sexual conduct is subject to discipline up to and including discharge; and
8. Requires supervisory personnel to immediately report suspected sexual conduct. Managers and supervisors must become completely familiar with the employer’s policy prohibiting sexual harassment. They should reread the policy on a regular basis, and should consult the policy when any sexual harassment issue arises.

Communicate the Policy and Train Employees:

In addition to providing the policy to each employee, the policy should be read and explained to employees in group meetings. Employees should be educated to recognize and confront harassment. Managers and supervisors should be trained to enforce the policy, sensitized to recognize improper conduct among coworkers when it occurs, and educated about the appropriate actions to take to prevent and remedy misconduct.

Avoid the Pitfall of Communicating the Policy only Once:

To be an effective tool against sexual harassment, the policy should be regularly and clearly communicated to employees. This can be done formally at employee meetings, and informally through managers’ and supervisors’ conversations with their reports.

Managers and supervisors can also take an active role in the communication process by requiring employees to attend training, following up with employees on what they learned at training, inviting questions regarding the training as well as the employer’s anti-harassment policy, and providing positive responses to employees who participate in the employer’s efforts to prevent and eliminate sexual harassment in the workplace.

After a policy against sexual harassment has been announced, managers and supervisors must also take follow-up action to make sure that employees are not engaging in prohibited activity. If a meeting is held telling employees to stop certain behavior, managers and supervisors should ensure that the meeting has been taken seriously by employees.

Make Sure the Policy Has an Effective Complaint Procedure:

A complaint procedure should encourage employees to come forward with allegations of sexual harassment. There should be several persons to whom an employee can bring an initial complaint. Human resources officers, or other appropriate employer representatives, should be designated to investigate complaints. There should also be more than two potential investigators in the event one is the accused harasser. Additionally, it is a good idea to designate both males and females as investigators because the complainant might feel more comfortable in reporting the conduct to someone of the same sex.

Managers and supervisors must take any complaint of sexual harassment that they receive seriously. They should immediately report the complaint to human resources or any other company representative charged with EEO-compliance responsibilities. They should assure employees that no retaliation will be taken against anyone who files a complaint and that their complaints will be handled as discreetly as possible. They should also tell anyone who complains that their allegations will be promptly and thoroughly investigated.

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According to the league announcement, “Only players that are natural born United States citizens with both parents of Caucasian race are eligible to play in the league.”

Well, will this league pass legal muster? Here’s one legal take on the proposed league: All White Hoops League Legal?

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