Addressing the Legal Framework

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Legal issues should not be forgotten in SP&M. That is especially true because

employee complaints filed with the Equal Employment Opportunity Commission

have been on the increase in recent years. Those responsible for formulating

and implementing an SP&M program should familiarize themselves with

government laws, rules, regulations, and other provisions—both in the United

States and, if they do business internationally, in other nations as appropriate.

Competent legal advice should be sought when the organization’s decisionmakers

have reached agreement on the goals and objectives of the SP&M program.

Additionally, employers should take special care to avoid real or perceived

employment discrimination of all kinds. Private-sector employers

should also take care to ensure that SP&M programs are consistent with company

human resource policies and procedures as described in company documents

(such as employee handbooks or policy and procedure manuals).

Public-sector employers falling under state or federal civil service rules should

double-check their program descriptions to ensure that SP&M programs are

consistent with policies and procedures governing hiring, promotion, training,

and other policies.

A complex web of employment law exists at the federal government level

in the United States. Key national employment laws are summarized in Exhibit

6-8. Under the supremacy clause of the U.S. Constitution, federal laws take

precedence over local laws unless no federal law exists or federal law specifically

stipulates that local laws may be substituted for federal law. In addition

to national labor laws, each state, county, and municipality may enact and

enforce special laws, rules, regulations, or ordinances affecting employment

in a local jurisdiction. The latter may influence succession planning and management

practices.

Exhibit 6-7. An Activity for Establishing Program Priorities in Succession

Planning and Management

Directions: Use this activity to help establish priorities for the succession planning

program in an organization. For each activity listed in the left column below, set a

priority by circling a number for it in the right column. Use the following scale:

1 _ A top priority that should be acted on now

2 _ A secondary priority that is important but that can wait awhile for action

3 _ A tertiary priority that should only be acted on after items prioritized as 1

or 2 have received attention

Circulate this activity among decision-makers as appropriate. If you do so, compile

their responses and then feed them back as a catalyst for subsequent decision making.

Add paper as necessary. (You may also wish to add other activities of interest.)

Priority

Top Secondary Tertiary

Activity 1 2 3

1. Preparing an Action Plan to Guide Program

Start-Up 1 2 3

2. Communicating the Action Plan 1 2 3

3. Training Managers and Employees for

Their Roles in the Systematic Succession

Planning Program 1 2 3

4. Organizing Kickoff Meetings and Periodic

Briefing Meetings to Discuss the Program 1 2 3

5. Counseling Managers on Handling Unique

Succession Planning Problems 1 2 3

6. Defining Present and Future Work Requirements,

Processes, Activities, Responsibilities,

Success Factors, and Competencies 1 2 3

7. Appraising Present Individual Performance 1 2 3

8. Assessing Future Individual Potential 1 2 3

9. Providing Individuals with the Means by

Which to Carry Out Career Planning

Within the Organization 1 2 3

10. Tracking Performance and Potential 1 2 3

11. Preparing, and Following Through on, Individual

Development Plans (IDPs) 1 2 3

12. Using, and Tracking, Innovative Efforts to

meet Replacement Needs 1 2 3

13. Establishing Effective Approaches to Evaluating

the Benefits of Systematic Succession

Planning 1 2 3

14. Designing and Implementing Programs

Geared to Meeting Special Needs 1 2 3

15. Other (specify) 1 2 3

Of special importance to SP&M programs is the Uniform Guidelines on

Employee Selection Procedures. Private-sector employers must ensure that all

employment decisions are in compliance with these procedures. If they do not

do so, they may risk a grievance under the Equal Employment Opportunity

Commission or a ‘‘right to sue’’ letter when mediation efforts with the EEOC

fail. Public-sector employers may find themselves falling under different standards

established by the applicable branch of government.

Establishing Strategies for Rolling Out the Program

As an increasing number of employers begin to implement SP&M programs,

they face dilemmas in how to roll them out. That is a frequent issue for consultants

specializing in this area. I advise my clients to start at the top, with the

CEO. The CEO is the real ‘‘customer’’ who must be satisfied, and it is wise to

‘‘follow the generations’’ in a roll-out strategy. That means it is best to begin

with the CEO and select his or her immediate successors first—a simple replacement

strategy. The CEO and his immediate reports—that is, the senior

executive team—should be next. That, too, is a simple replacement plan. However,

as internal consultants from human resources or external consultants

work with the senior executive team, they begin to understand what issues are

important in such a program and experience it firsthand. Their involvement

and participation ensures their ownership and understanding. Next, middle

managers are included. That is a third-generation plan. As middle managers

are included, the program formulated by the senior executives is fire-tested

with middle managers. That sets the stage for the talent pools and skill inventories

that characterize generation-four and generation-five plans.

Of particular importance is the communication strategy. That is often an

issue that should be addressed separately from the action plan. The CEO and

senior executives should pay careful attention to how the SP&M programs are

(text continues on page 154

Exhibit 6-8. U.S. Labor Laws

Name of Law

and Date of

Enactment Legal Citation Brief Description of Key Provisions

Davis-Bacon 40 U.S.C. and The Davis-Bacon Act applies to federal con-

Act (1931) sect; 276 et struction and repair contracts over $2,000.

seq. The Act requires contractors to pay their employees

a specified minimum wage determined

by the Secretary of Labor to be

prevailing for similar work in that geographic

area. Over 60 other federal laws make compliance

with Davis-Bacon provisions a precondition

for state and local contracts when a

portion of the funding for those contracts

comes from the federal government. The Act is

enforced by the Wage and Hour division of the

Department of Labor.

The National 29 U.S.C. and The National Labor Relations Act protects the

Labor Relations sect; 151 right of employees to choose whether to be

Act (Wagner represented by a union. The Act protects

Act and Taft- against coercion by employers or unions in

Hartley Act) making this choice and establishes the ground

(1947) rules for union representation elections. The

Act establishes collective bargaining between

employers and unions. The Act is enforced by

the National Labor Relations Board.

Fair Labor Stan- 29 U.S.C. and The Fair Labor Standards Act provides minidards

Act sect; 201 et seq mum wage and overtime requirements. Under

(1938) the FLSA all nonexempt employees are entitled

to cash overtime for all hours worked over 40

in a workweek. The Act is enforced by the

Wage and Hour Division of the Department of

Labor and private lawsuits.

Labor- 29 U.S.C. and The Labor-Management Reporting and Dis-

Management sect; 401 et seq closure Act, or the Landrum-Griffin Act, estab-

Reporting and lishes a set of rights for employees who are

Disclosure Act members of unions. They include the right to

(Landrum- vote, attend meetings, meet and assemble with

Griffin Act) other members, and freely express views and

(1959) opinions. The Act also requires all labor

unions to adopt a constitution and bylaws, and

contains certain reporting requirements for

labor organizations, their officers, and employees.

This Act is enforced by the Office of

Labor Management Standards of the Department

of Labor.

Contract Work 40 U.S.C. and This Act sets a standard 40-hour workweek for

Hours Safety sect; 327 et seq employees of federal contractors and regu-

Standards Act lates work in excess of the standard week in-

(1962) cluding the requirement to pay overtime. The

Act is enforced by the Wage and Hour Division

of the Department of Labor.

Equal Pay Act 29 U.S.C. and The Equal Pay Act prohibits discrimination in

(1963) sect; 201 et seq pay and benefits on the basis of sex for jobs in

the same establishment that require equal skill,

effort, and responsibility and which are performed

under similar working conditions. The

Act is enforced by the Equal Employment Opportunity

Commission.

Title VII of the 42 U.S.C. and Title VII makes it unlawful for an employer with

Civil Rights Act sect; 2000 et 15 or more employees to discriminate against

(1964) seq. individuals with respect to hiring, compensation,

terms, conditions, and privileges of employment

on the basis of race, color, religion,

national origin, or sex. Title VII is enforced by

the Equal Employment Opportunity Commission.

Executive 42 U.S.C.A. Executive Order 11246 prohibits job discrimi-

Order 11246 and sect; nation by employers holding Federal contracts

(1965) 2000e or subcontracts on the basis of race, color, sex,

national origin, or religion and requires affirmative

action to ensure equality of opportunity

in all aspects of employment. The Order is

enforced by the Office of Federal Compliance

Contract Programs of the Department of

Labor.

Service Con- 41 U.S.C. and This Act is analogous to the Davis-Bacon Act

tract Act (1965) sect; 351 et in the area of service contracts performed by

seq. private companies doing work for the federal

government. The Act requires contractors that

provide services to the federal government to

provide their employees a specified minimum

(continues)

Exhibit 6-8. (continued)

Name of Law

and Date of

Enactment Legal Citation Brief Description of Key Provisions

wage and fringe benefits plan determined by

the Secretary of Labor to be prevailing in the

locality. The Act is enforced by the Wage and

Hour Division of the Department of Labor.

Age Discrimi- 29 U.S.C. and The Age Discrimination in Employment Act, or

nation in Em- sect; 621 et ADEA, makes it unlawful for an employer with

ployment Act seq. 20 or more employees to discriminate against

(1967) individuals that are 40 years or older, with respect

to hiring, compensation, terms, conditions,

and privileges of employment on the

basis of age. The Act is enforced by the Equal

Employment Opportunity Commission.

Federal Coal 30 U.S.C. and This Act empowers the Secretaries of Labor

Mine Health sect; 801 et and Health and Human Services to promuland

Safety Act seq. gate health and safety standards for the mining

(1969) industry. The Act is enforced by the Mine Safety

and Health Administration of the Department

of Labor.

Occupational 29 U.S.C. and The Occupational Safety and Health Act, or

Safety and sect; 553, 651 OSHA, requires all employers to provide a

Health Act et seq. workplace that is free from recognized hazards

(1970) that cause, or are likely to cause, death or serious

physical harm to employees. The Act also

establishes the Occupational Safety and

Health Administration, which is responsible for

promulgating workplace safety standards and

regulations for various industries. The Act is

enforced by the Occupational Safety and

Health Administration.

Rehabilitation 29 U.S.C. and The Rehabilitation Act prohibits employers that

Act (1973) sect; 701 et receive federal grants, loans, or contracts from

seq. discriminating in their employment practices

against individuals with disabilities. The Act is

enforced by the Department of Labor.

Employee 29 U.S.C. and The Employment Retirement Income Security

Retirement In- sect; 301, Act, or ERISA, governs the operation of pencome

Security 1001 et seq. sions and retirement benefits provided by pri-

Act (1974) vate-sector employers to their employees. The

Act does not require that employers provide

such benefits, but regulates the conduct of employers

that do provide such plans. The Act is

enforced by the Pension and Welfare Benefits

Administration of the Department of Labor.

Vietnam Era 38 U.S.C. and VEVRAA makes it unlawful for employers to

Veterans’ sect; 4301 discriminate against veterans of the Armed

Readjustment Forces in their employment practices. It also

Assistance Act provides veterans with certain reemployment,

(1974) seniority, health benefits, and pension rights

with respect to prior employment. The Act is

enforced by the Office of Veterans Employment

and Training of the Department of Labor.

Black Lung 30 U.S.C. and This Act provides benefits to coal miners who

Benefits Reform sect; 901 et are totally disabled due to pneumoconiosis

Act (1977) seq. and to the surviving dependents of miners

whose death was a result of this disease. The

Act is enforced by the Office of Workers’ Compensation

Programs of the Department of

Labor.

Labor- 29 U.S.C.A. The Labor-Management Cooperation Act en-

Management and sect; 141 courages the establishment and operation of

Cooperation note, 173, joint labor-management activities designed to

Act (1978) 175a. improve labor relations, job security, and organizational

effectiveness. The Act authorizes

the Federal Mediation and Conciliation Service

to provide assistance, contracts, and

grants to joint labor-management committees

that promote these purposes.

Pregnancy Dis- 42 U.S.C. and The PDA, a 1978 amendment to Title VII of the

crimination Act sect; 2000 et 1964 Civil Rights Act, makes it unlawful for an

(1978) seq. employer to discriminate on the basis of pregnancy

or childbirth. The Act is enforced by the

Equal Employment Opportunity Commission.

(continues)

Exhibit 6-8. (continued)

Name of Law

and Date of

Enactment Legal Citation Brief Description of Key Provisions

Multi-Employer 29 U.S.C. and This Act regulates the operation of multi-

Pension Plan sect; 1001a et employer pension plans and provides protec-

Amendments seq. tion and guarantees for the participants and

Act (1980) beneficiaries of distressed plans. The Act is enforced

by the Pension and Welfare Benefits Administration

of the Department of Labor.

Job Training 29 U.S.C. and This Act creates Private Industry Councils com-

Partnership Act sect; 1501 et posed of business owners and executives as

(1982) seq. well as representatives of organized labor to

assist state and local governments in the development

and oversight of job training programs.

The Act is enforced by the Employment

and Training Administration of the Department

of Labor.

Migrant and 29 U.S.C. and This Act governs the terms and conditions of

Seasonal sect; 1801 et employment for migrant and seasonal agricul-

Agricultural seq. tural workers and regulates the employment

Protection Act practices of agricultural employers, agricul-

(1983) tural associations, and farm labor contractors.

The Act is enforced by the Wage and Hour Division

of the Department of Labor and by private

lawsuits.

Immigration 29 U.S.C. and The Immigration Reform and Control Act, or

Reform and sect; 1802 et IRCA, requires employers to verify that appli-

Control Act seq. cants for employment are authorized to work

(1986) in the United States. The Act provides civil and

criminal penalties for knowingly employing unauthorized

aliens and also prohibits discrimination

based on national origin or citizenship

if the alien is authorized to work. The Act is

enforced by the Department of Justice and the

Immigration and Naturalization Service.

Economic Dis- 29 U.S.C. and This Act provides federal funds to the states for

location and sect; 1651–53 basic readjustment and retraining of workers

Worker Adjust- who have been terminated because of layoffs

ment Assistance or plant closures and who are unlikely to return

Act (1988) to their previous occupations. The Act is managed

by the Employment Standards Administration

of the Department of Labor.

Employee Poly- 29 U.S.C. and This Act makes it unlawful for an employer to

graph Protec- sect; 2001 et require, request, suggest, or cause an emtion

Act (1988) seq. ployee or applicant to submit to a lie detector

test. In addition, it prohibits the employer from

threatening or taking any adverse employment

action against an employee or applicant who

refuses to take a lie detector test. The Act is

enforced by a private right of action in the federal

district courts.

Worker Adjust- 29 U.S.C. and The Worker Adjustment and Retraining Notifiment

and sect; 2101et cation Act, or WARN, requires employers with

Retraining No- seq. 100 or more employees to give 60 days adtification

Act vance notice to employees of impending plant

(1988) closings or layoffs involving 50 or more employees.

The Act is enforced by private lawsuits.

Whistleblower 10 U.S.C. and The Whistleblower Protection statutes protect

Protection sect; 2409; 12 employees of financial institutions and govern-

Statutes (1989) U.S.C.; 1831j; ment contractors from discriminatory and re-

31 U.S.C. and taliatory employment actions as a result of

5328; 41 reporting violations of the law to federal au-

U.S.C. 265. thorities. The Act is enforced by the Wage and

Hour Division of the Department of Labor.

Americans with 42 U.S.C. and The Americans with Disabilities Act, or ADA,

Disabilities Act sect; 12101 et makes it unlawful for an employer with 15 or

(1990) seq. more employees to discriminate against qualified

individuals with disabilities with respect to

hiring, compensation, terms, conditions, and

privileges of employment. The Act is enforced

by the Equal Employment Opportunity Commission.

(continues)

Exhibit 6-8. (continued)

Name of Law

and Date of

Enactment Legal Citation Brief Description of Key Provisions

Older Workers 29 U.S.C. and This amendment to the Age Discrimination in

Benefit Protec- sect; 623 et Employment Act makes it unlawful for an emtion

Act (1990) seq. ployer to discriminate with respect to employee

benefits on the basis of age. It also regulates

early retirement incentive programs. The Act is

enforced by the Equal Employment Opportunity

Commission.

Civil Rights Act 42 U.S.C. and The Civil Rights Act of 1991 amended the

(1991) sect; 1981 et 1964 act, and the Americans with Disabilities

seq. Act (ADA), to allow compensatory and punitive

damages, but places caps on the amounts that

can be awarded. The Act also provides for jury

trials in suits brought under these laws.

Family and 29 U.S.C. and The Family and Medical Leave Act, or FMLA,

Medical Leave sect; 2601 et requires that employers with 50 or more em-

Act (1991) seq. ployees provide up to 12 weeks of unpaid

leave, within any 12-month period, to employees

for the care of a newborn or adopted

child, for the care of a seriously ill family member,

or for treatment and care of the employee’s

own serious medical condition. The Act is

enforced by the Wage and Hour Division of

the Department of Labor.

Congressional 2 U.S.C. and When many of the above laws were enacted,

Accountability sect; 1301 et Congress was expressly exempted from com-

Act (1995) seq. pliance. The Congressional Accountability Act

extends coverage of eleven laws to Congress

in its capacity as an employer.

Source: Originally downloaded from Labor Policy Association. (1997). U.S. Employment Laws. Website: http/www.lpa.org/lpa/

laws.html. Washington, D.C.: Labor Policy Association. See also http://www.dol.gov/asp/programs/guide.htm.

described to middle managers and other stakeholders. If they do not give special

attention to the communication strategy, so as to make the business goals

and the policies and procedures clear, they risk broad-scale failure of the plan.

Human resource practitioners cannot do it all. They need to work with the

CEO and senior executive team—and sometimes with external consultants as

well—to craft a communication strategy that explains how the SP&M program

works and why it exists.