Do s and Don ts
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Do's and Don'ts
The following guidelines can help you adhere to the anti-discrimination statutes. Be sure to check with your local counsel for additional guidelines necessary to comply with applicable state laws.
Solicitation (Want Ads)
DON'T include any express or implied statements of preference or requirement based on sex, age, national origin, religion, color , or race. This means that employers should not post ads looking for "A few good men to program a AAA title," or seeking "Artist for anime illustrations, Japanese a plus," or any reference to youth.
DO include bona fide occupational requirements such as,. "Candidate must be fluent in Japanese," if advertising for a position as a Japanese market consultant.
DO include a tagline stating that the company is an equal opportunity employer that does not discriminate based on color, race, religion, sex, nationality , disability, or age.
Applications and Interviews
A good rule of thumb for employers: Avoid topics that would identify the applicant as a member of a class protected under Title VII.
DON'T ask about an applicant's:
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Sex, marital status (including questions about applicant's maiden name or whether she prefers Miss , Ms., or Mrs), family, or intentions to start a family.
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Age, birth date, dates of education. Exception: To comply with other laws, for example, child labor or employment of minors (an important exception for developers, as there is a high incidence of employees under the age of 18). You should ask questions about age, birth date, and dates of education in order to comply with state and federal laws regarding child labor or employment of minors. Remember, in game development there are many underage employees . You must know the laws that apply to their employment and adhere to them.
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Nationality, citizenship status. Once an employer determines that any employee is qualified to work, it should then extend an offer conditioned on employee's production of a complete INS I-9 form within 7 days. It is illegal for an employer to knowingly hire an individual not authorized to work in the U.S.
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Religion, what religious holidays applicant intends to observe, and so forth.
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Disabilities and/or medical conditions, height, weight, hair/eye color. Exception: An employer may describe the job requirements and ask the employee if he has any physical conditions that would impinge on his or her ability to perform the job.
How Federal Discrimination Statutes are Enforced
Before anyone can file a lawsuit under any of the Title VII (anti-discrimination) laws, she must first try to redress her grievance through the Equal Employment Opportunity Commission. Anyone wishing to sue under Title VII must acquire a right to sue letter before he may file suit. The EEOC is a federal administrative agency that functions a bit like a mediator in that it tries to bring the parties to an amicable resolution without resorting to litigation.
The EEOC Process:
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Someone believing he has a Title VII discrimination claim files a charge of discrimination with the EEOC, stating his case.
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The EEOC then investigates, sending a copy of the employee's charge to the employer and asking it to respond in writing, including any relevant documents. (Employers will note that this is where the documentation of communications with the employee comes in handy.)
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After reviewing the charge and the employer's response, the EEOC either:
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Finds reasonable grounds to believe the employer violated the law and begins informal mediation; or
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Finds no reasonable grounds to believe the employer violated the law. The employee can then sue in civil court by requesting a right-to-sue letter from the EEOC, which gives the employee 90 days to file suit against the employer; or
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Doesn't quite get around to the investigation within the time limit, in which case the employee may also request a right-to-sue letter and take the employer to civil court.
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If the EEOC finds reasonable grounds and cannot come to a resolution with the employer, it may sue the employer on behalf of the employee and anyone else who has filed a charge.
See the Avoiding Lawsuits section of this chapter for preventive measures.
Other Important Federal Laws
Congress has passed several other laws regulating the workplace, among them:
Family and Medical Leave Act
The Family and Medical Leave Act ("FMLA") provides employees the opportunity to take time off of work for family and health reasons without losing their employment. It applies to businesses with 50 or more full-time employees (California requires employers with fewer than 50 employ -
Figure 4.4. Employees usually must work with the EEOC before suing an employer for discrimination.
ees to grant family and medical leave). Eligible employees (those who have worked for the employer for at least 12 months or at least 1,250 hours per year) receive up to 12 weeks of unpaid leave per year in connection with the following:
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The birth of a child
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The placement of an adopted/foster child with the employee
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Care of a child, parent, or spouse
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A health condition rendering the employee unable to perform his/her job
The employer must restore the employee to the same or an equivalent position (with respect to benefits, pay, stature, and other conditions of employment) following expiration of the leave. Exception: If the employee is a "key" employee, i.e. among the top 10 percent of salary earners at the company and substantial harm to the company would result from his reinstatement, the employer does not have to restore the employee to his prior position. The employer must notify the employee of its intention to deny job restoration immediately upon determination that reinstatement would cause such harm and give the employee a reasonable amount of time to return to work from leave.
Fair Labor Standards Act
The Fair Labor Standards Act protects wage workers by regulating minimum wage, overtime, and child labor practices. It applies to all businesses engaged in interstate commerce (your state's legislation may extend the protections to all businesses, regardless of whether they engage in interstate business). It only protects non-salaried employees and children. It does not apply to independent contractors. Employers may not pay a non-exempt (see below for exemptions) employee less than the federal minimum wage ($5.15 as of March 2003) per hour worked and 1.5 times that wage for all time worked in excess of forty hours per workweek.
Minors: The FLSA regulates the use of minors (those under 18). Many of the rules have to do with the hours that minors can work and the kind of work they can do. See sidebar: "Hiring Kids" for a complete guide to the child labor experience.
Exempt Employees: Some employees are exempt from the FLSA, meaning that an employer is not required to pay them overtime. Employees must have certain responsibilities that they fulfill on an unsupervised basis to qualify as exempt. Exempt positions usually include executive, administrative, professional/salaried workers, and salespeople/commission workers.
NOTE
CAUTION
While many computer programmers are considered administrative employ ees, the Department of Labor has decreed that those solely performing debugging work or translating narra tive into code are not exempt.
Hiring KidsGame development is a young business to begin with, and its labor force tends to be directed at a very young age.This is an extremely democratic , merit-based business, and many companies elect to make use of skilled and enthusiastic minors, whether as artists , programmers, testers, or interns. Two rules to follow:
Note that many states further regulate the hours that workers under age 18 may work, so check with your State Department of Labor. |
Worker's Compensation
These statutes regulate businesses' insuring against worker injury sustained on the job, and the remedies and recoveries available to those injured workers. Workers are entitled to benefits regardless of blame (though a worker will not receive benefits if he was intoxicated, violating safety codes, or committing a crime when injured), but the benefits are generally limited to medical treatment, lost wages , and vocational rehabilitation . Except in rare cases, a worker
NOTE
NOTE
Developers should note that repeti tive stress injury might be considered a workplace injury if it would not have occurred but for the job require ments, as may emotional illnesses brought on by workplace stress.
If an employee is injured on the job, he tells the company and the company files a report with its worker's compensation insurer, who then investigates and administers the claim.
An employer will obtain the worker's compensation insurance in one of three ways, depending on state regulations: self-insuring (also known as "Russian Roulette," in which the employer is obliged to maintain a sufficient cash reserve to cover claims); buying into a state-administered insurance pool; or buying insurance from a private company.
Caveat : If insurance is not obtained in strict adherence to state law, employers face penalties ranging from fines to temporary shutdowns to exposure to tort litigation by the employee.
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EAN: 2147483647
Pages: 63