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Headcount Quinceañera

During the pandemic, there was a substantial increase in folks venturing off on their own and starting their own business. Indicators show that this trend is here to stay. Although starting a business instead of working for a separate organization has its challenges, it also has the potential for great reward if successful.

Some may measure part of that success in headcount growth beyond the founders. In most if not all of these organizations, there is no HR. There is typically a designated person to handle employee issues until when and if the organization grows to the point of needing an HR practitioner. Not having “HR” is not an excuse from not following required federal (and other) laws.

There are quite a few that are relevant to all businesses with employees, regardless of size. These include but are not limited to:

  • I-9 – completing an I-9 for verification of identity and employment authorization. Some states or industries may require E-Verify as well.

  • Equal Pay Act – equal pay for equal work regardless of gender

  • FLSA – minimum wage and overtime pay requirements. Some states may have higher minimums

  • OSHA – responsibilities and requirements for a safe and healthy workplace. Some states may have their own OSHA approved plan with enhanced protections

  • ERISA – if you provide employer sponsored benefits, this applies

  • USERRA - Employment and Reemployment Rights for employees serving in military service

  • CCPA – wage garnishment protections and limitations

Most of the above are generally easy and clear to follow. That said, something happens when you reach your headcount quinceañera; when you reach 15 employees. I like to call this moment:

EEOC has entered the chat”.

The EEOC is responsible for following up on discrimination claims brought to them by applicants and/or employees. There are “various types of discrimination prohibited by the laws enforced by EEOC.” From the ones listed at the previous link, these are the ones that have tripped me up and/or I’ve seen trip up others, especially when the company has only recently reached 15 or more employees:

  • Disability (ADA) – when someone requests an accommodation due to a disability, an employer is required to go through what’s called the “interactive process” to come up with a solution (accommodation) that allows the employee to continue working their job and that doesn’t cause an “undue hardship” to the employer. Some of the ways the tripping up can happen are not having a system in place for employees to ask for an accommodation, not having a discussion about possible accommodations, and/or not providing or receiving medical documentation for the accommodation need. A good resource on how to do this well is the Job Accommodation Network which most HR folks just call Ask Jan.

  • Pregnancy (PDA and PWFA) – There is some interplay between these two pregnancy protections at the links and the above (ADA). Some trip hazards are not considering protections under all three or treat pregnancy worse that you would say, a broken arm in terms of accommodations. There are also protections for conditions arising after the birth such as post-partum depression.

  • Religious discrimination – A way we allow this to trip us up is passing over an employee for a promotion they are qualified for because due to religious reasons, they are unavailable for a once a year event like an inventory or celebration when they can easily be accommodated and excused or the activity can be held during a time that is more inclusive to everyone on location.

I find that for most, the tripping up isn’t because of some desire to deprive folks of their rights or act in some unscrupulous, unethical way. Rather, it’s because we sometimes lack processes to document and evaluate next steps when related concerns are brought up by employees or are observed directly by management. Sometimes employees and even supervisors have no idea where to go with their concerns because there is no established procedure in place.

While the EEOC is not someone you want to necessarily invite to your party, they thankfully have resources for small businesses to help establish best practices. You can find those here.

Which of the areas that EEOC covers would you like to learn more about?

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Aug 08, 2023

Who invited them to the party?! I agree that more often than not, mistakes are unintentional and not made to deprive a worker of a right. Recent NLRB decisions show how politics can change the legal landscape and, if you aren't paying attention, you could make a mistake.

Aug 08, 2023
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"if you aren't paying attention, you could make a mistake." True words and message for the day! There's a lot of information to juggle for sure.

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