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The new office: personnel laws in the 1990s.

Not long ago, futurists predicted that demographic changes would completely alter the American work force by the year 2000. The prediction has already come true: America's work environment is changing. By the turn of the century, much of the work force will be older, with women comprising a sizable component. Yet according to the U.S. Department of Labor, only a handful of employers are currently initiating programs to deal with the significant changes in the look and shape of employee populations. What that means for employers is that many organizations will get caught short by increasing government regulation and employment-related litigation during the next decade. At the very least, risk managers should be prepared for the growing liabilities associated with the work force of the future.

More proactive employers are putting stock in programs aimed at managing increasingly diverse groups of employees: Fifty-five percent of the 227 senior personnel executives surveyed by Towers Perrin have a Work Force 2000 program in place. However, there are still company executives that think they can put all their effort in the venerable employment-at-will doctrine, which allows them to dismiss employees without cause. Increasingly, at-will employment is becoming a concept of the past. An avalanche of federal and state laws and regulations, such as the Civil Rights Act of 1991, now govern the hiring, firing and disciplining of workers. The following are work force trends expected in the years ahead.

Discrimination laws. Real or otherwise, discrimination lies at the core of many termination suits. Employees who wish to charge their former employers with discriminatory firings or layoffs already have an unprecedented amount of legal ammunition at their disposal, including Title VII of the Civil Rights Act, the Americans with Disabilities Act of 1990 (ADA) and the Age Discrimination in Employment Act (ADEA). Many workers and their elected representatives believe that the current legal arsenal needs even more firepower. They are pushing for congressional legislation that would produce fundamental changes in the nation's civil rights law. Similar efforts in the state legislatures are taking place across the country.

If congressional and state lawmakers were to pass the legislation that these groups want, employees would be able to take their employment discrimination cases directly to court instead of having to first file with the Equal Employment Opportunity Commission or a local human rights commission. The settlements and damages paid to ex-employees are incredibly high now, and they could go higher, especially if Congress expands Title VII to give winning employees the right to ask for compensatory and punitive damages. Million-dollar awards in employment discrimination cases may become the norm in the decade ahead..

Minorities and women. Much more will be heard from women in the workplace. According to the EEOC, African-american women represent 2 percent of the managers in companies with 100 or more employees; 23 percent of the managers are white women. Three percent are African-american men. This situation is bound to change, especially as more black women enter the job market. By the late 90s, there may be more than 8 million African-american women in the U.S. work force. It is a good bet that these women will do whatever is necessary to get the courts and legislatures to guarantee them equal access to the corporate ladder.

Overweight work force. Several U.S. airlines have fairly strict weight requirements for their flight attendants. Until recently, such standards applied only to female attendants. The EEOC has filed a class-action lawsuit against a major airline for firing female flight attendants who did not meet its weight standards. The suit contends that the airline's policy, which states that a 5-foot-5-inch female attendant cannot weigh more than 120 pounds, discriminates against attendants over age 40.

Whoever wins the suit, an employee's weight is sure to remain an issue. But if a business imposes weight limits for health or safety reasons, and enforces them for both sexes, it can get around this problem.

Aging continues. Some termination trends are easier to spot than others. For instance, we can be fairly certain that older workers will file more job discrimination suits under the ADEA in coming years.

But some older employees think that the ADEA does not do enough to protect against age discrimination in the workplace. Advocates are aiming for tougher sanctions against employers who use age as an excuse to fire or lay off workers. To bolster the ADEA, Congress and the state legislatures will target retirement programs and employees' waivers of their rights under the act. Employers should take a particularly hard look at their retirement and seniority programs.

Disabled workers. The Rehabilitation Act of 1973 protects disabled employees from discrimination relating to hiring, promotions and termination if they work for the federal government or its contractors. Until 1990, disabled workers had no real shield against job discrimination by private companies. There are sure to be sweeping changes once the courts begin to enforce the ADA, which makes it illegal for private-sector employers to discriminate against disabled workers. Despite loud objections by some employers, the act's protection is likely to be extended to workers with AIDS. The importance of the ADA goes far beyond the disabled employees it protects; it serves as a model for state disabled rights bills.

Genetic screening. Labor unions and civil liberties advocates worry that medical science is about to create a new underclass of high-risk employees. Mounting pressure on employers to reduce health care costs could lead to the increased use of screening job applicants or employees with a higher-than-usual risk of illness or disability.

Medical screening is not new; employers started requiring pre-employment physicals as early as 1910. Not until the past few years, however, have employers tried to focus on employees likely to develop disease or disability, rather than those who already have a medical problem.

The Employee Retirement Income Security Act already forbids employers from firing or otherwise discriminating against employees at high risk for disease. The ADA and the Rehabilitation Act of 1973 may also give these employees a legal shield against job discrimination. But as genetic testing becomes more common, there will be substantial pressure on Congress and state legislatures to pass laws providing protection for high-risk workers.

Child care. Many working women are temporarily putting their careers on hold to have babies. Labor groups argue that the usual eight week maternity leave is not sufficient to handle the demands of caring for an infant. Many are making efforts to get Congress to give tax benefits to employers who offer child care assistance. Mandatory unpaid family leave has also been proposed. With political pressure building, child care will surface more often on the legislative agenda.

Health and safety. Although Congress has given the Occupational Safety and Health Act more bite, many legislators do not believe civil penalties alone are enough to ensure compliance. Congress wants to impose tougher criminal sanctions on employers who intentionally violate the act. This means that an employer might be subject to both civil and criminal penalties. Managers who fire employees who refuse to work when OSHA regulations are violated may also be held criminally liable if Congress toughens the act.

Smoking bans. The city council of Takoma Park, Maryland, had intended to write a law similar to workplace smoking regulations in other municipalities. But council members thought that limiting smoking would not solve the secondhand smoke problem, so they approved one of the nation's toughest smokefree workplace laws.

Takoma Park may be just one speck on the map, but it is not alone in its aversion to smoking. Several dozen states and municipalities now regulate smoking in the workplace. Growing concern with workers' health will prompt more stringent regulations in the future, with Congress probably making its presence felt with legislative measuring.

VDT emissions. The Environmental Protection Agency has reported that video display terminals pose a potential threat to the health of workers who use them, especially for extended periods. At some businesses, employees who spend most of their workday at their VDTS are reimbursed for eye care. Other organizations are developing policies for pregnant employees who use VDTS. Several cities and states are regulating the conditions of VDT operators, but Congress has not yet taken action.

As the white-collar work force expands and electronic offices proliferate, there will be greater efforts to regulate terminal use. VDTS have also become a hot topic with labor unions, and will not disappear from the national agenda any time soon.

Worker stress. A woman who had worked for a government contractor in New Jersey for 22 years had a nervous breakdown when the company told her she was going to be transferred to another department. A local court ruled that she was entitled to workers' compensation benefits because her breakdown was a personal injury arising from and in the course of her employment.

In another case, a white sanitation supervisor for the city of Louisville, Kentucky, blamed his severe depression on the stress of having to work with blacks. Along with awarding the man maximum benefits, the Kentucky Workers' Compensation Board ordered the city to provide a job where he could work only with whites.

In the eyes of labor groups, job stress is as much of an occupational illness as black lung disease. Its victims include workers who cannot do their jobs properly because they are worried about being laid off or drink too much because they cannot handle new responsibilities. If such employees live in a state that pays workers' compensation benefits to job stress victims, they may be able to collect most of their pay while staying home.

The workplace is not going to be any less stressful in the coming years. Workers will need to respond to new technologies and demands. Employers can expect legislation that grants employees greater leeway in making job stress claims.

Privacy redefined. Some employers contend that a surveillance program that lets them know periodically what their employees are doing, augments security efforts and provides insight into employee performance and productivity. Some employee groups such as the Communications Workers of America are lobbying for Congress to outlaw the use of electronic surveillance in the workplace.

Congress seems to be moving toward protecting employee privacy rights at the expense of the at-will doctrine. Thus, it is not out of the question that this legislation, which has been knocking around the halls of Congress for years, could become law in the near future.

Drugs/alcohol testing. Congress and the state legislatures have recognized the necessity of drug and alcohol testing by employers. But employee groups have not been deterred from pushing for federal and state legislation that would regulate the methods of testing workers.

In coming years, the U.S. Department of Labor, along with state agencies, are sure to play a greater role in regulating the drug/alcohol testing process. Current laws governing federal contractors already give the department some authority. It is only a matter of time before national regulation follows.

Overall, employers will have to contend with more government regulation, as well as immerse themselves in the legislative and regulatory scheme. Dealing with employees in this "brave new work world" will require a greater awareness of the law on the part of management. Failure to stay on top of legislative and regulatory changes relating to personnel could prove to be one of the larger expenses on a company's bottom line. RM
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Title Annotation:includes related article on sexual harassment
Author:Bequai, August
Publication:Risk Management
Date:Jan 1, 1992
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