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Many organizations have been focusing on diversity, equality and inclusion initiatives. Companies are making DEI a top priority in California and around the country. Employees and customers look at a company’s thoughtful and impactful corporate response. DEI tools have expanded into leadership, organizational and legal departments as well. Several new risks to customers and employees have hurt company reputations and brands.

Collected data under DEI umbrella

Diversity, equality and inclusion strategies rely on policies and practices in all aspects of the business. DEI affects all recruiting, training, development and promotion of employees. Comprehensive diversity, equality and inclusion strategies collect, store, transfer and use personal data of applicants and employees. DEI-related data include veteran status, sexual orientation, disability, race, ethnicity and gender identity.

The antidiscrimination laws and DEI-related data collection requirements

Employers with over 100 employees have to submit a DEI-related data report by March 31st. Collecting personal identifiers for applicants isn’t required by the law but is often a policy of businesses. Federal courts look at the collected data from the Uniform Guidelines on Employee Selection Procedures. The Federal Housing Finance Agency regulates entities such as home loan banks by collecting personal data.

Security and privacy implications of DEI-related data

Companies use, transfer, store and collect personal data from applicants and employees. Antidiscrimination laws consider privacy restrictions for select data. The California Consumer Privacy Act has been imposing a broad range of requirements for personal information collection since Jan. 1, 2020. The CPRA includes retention periods of personal information with the notice of collection. Businesses can’t retaliate against employees or independent contractors for exercising the consumer’s rights. The information needs to be voluntary, and the employee should explain the purpose of collection. The questions should be clear, and they should guarantee the confidentiality of the data.

Mass data breaches and phishing scams make implementing security safeguards important. Data security legislation is changing in the U.S. and abroad. U.S. laws protect specific information during a security breach, but not DEI data. Employees are likely to take part in DEI when a company takes the security of personal information seriously. Businesses need to know what DEI-related data they collect and where they store data.

Most employers in California understand that employment discrimination is illegal. If an employer intentionally denies jobs and opportunities to people from a certain race, gender or age group, the employer could get into big trouble. However, even when employers are aware of anti-discrimination laws, they may not have a diverse and inclusive workplace.

Diversity and inclusion: What they mean

Diversity and inclusion are two distinct concepts that work together to create a happier work environment for everyone. By understanding and implementing these two concepts, employers can avoid “tokenism,” or the practice of hiring people from a certain group just so that a company can appear diverse.

In a work setting, diversity refers to the representation of all different groups. This could mean having workers of different ages, religions, races and genders working in the various departments.

Inclusion refers to how valued a diverse staff is and how much it is allowed to contribute. When an employer engages in tokenism, it may do something like hire a lot of disabled workers for one department but not offer those workers any opportunities for advancement. An inclusive workplace provides equal opportunities to a diverse staff.

Why are diversity and inclusion important?

A diverse and inclusive workplace has other benefits to an employer besides avoiding discrimination complaints. There is research showing that diverse and inclusive workplaces have more highly motivated employees, better employee retention and more innovation.

Individuals who work for a diverse and inclusive company feel more job stability, and they are happier going to work. Implementing the concepts of diversity and inclusion can also help employers attract future workers from a larger talent pool.

Being in an authoritative role is not for everyone. Often, individuals in positions of authority, like employers, have to make difficult decisions when it comes to managing certain operations, addressing issues that arise and handling employee discipline. In some cases, these matters can have an element of confrontation or tension, and the possibility exists that some upset could arise. In particular, when terminating an employee from a position, it is important to take the correct steps.

Any worker can feel disheartened by losing his or her job, but as an employer, if you do not follow certain procedures, an employee could claim that you wrongfully dismissed him or her, or that some other detail of the firing process caused undue difficulties. You certainly do not want an already difficult situation to become even more trying for yourself, the employee or the company.

Is immediate termination the right answer?

In some cases, it may be necessary to immediately terminate an employee and have him or her escorted from the premises. Serious offenses like acting in a violent manner, stealing company property, bringing a weapon to work or other serious violations could present cause for immediate removal of an employee. Of course, when weapons or violence is involved, it is important to take caution.

In the event that an employee does not pose a threat or has not violated company policies in any serious way, immediate termination may not be the only course of action. You could have the ability to meet with the employee and let him or her know about any performance issues or other feedback that could help the worker understand that improvement is necessary. Keep records of this meeting to show that concerns about future employment existed before termination.

What if no improvement occurs?

Some workers do not take feedback seriously and do not want to improve, or they may simply not have the ability to handle a particular job as much as they try. You certainly do not want to keep on an employee who hinders other workers or the business overall, so ending employment may be the best course of action.

The options for terminating an employee can differ. For instance, should you offer severance pay? How much notice should you give the employee before the dismissal? Do you need to take the same actions with each employee in this situation? It is vital that you have the right answers to these concerns and come up with a dismissal process that suits your company’s needs, complies with California state laws and does not cause any unnecessary issues. Fortunately, an experienced employment law attorney can explain available options.

One critical mistake small business owners often make is failing to keep accurate and current information on their employees. This does not only include their employment applications and forms from the hiring process but also records of any critical interaction you may have with your workers. Your business may have only a few employees, and you may think it is not important to log your conversations, warnings or corrections, but many business owners have regretted taking a casual approach toward documentation.

Certainly, you have files for each employee that contain the documentation the government requires you to keep. You may have your own policies for keeping certain information on each employee. However, you may be overlooking important details that could leave you scrambling if an employee ever decides to take legal action against you.

The benefits of smart record keeping

Too often, employers fail to write down what they say and decide when speaking with employees. Instead, they believe they can rely on their memories if they ever need to recall a certain event or meeting. This is almost always a mistake and is rarely a reliable way to preserve the accuracy of an event. Careful, factual documentation can provide an overview of an employee’s performance that supports any action you may take, including:

  • Promoting those who have proven their worth
  • Offering pay raises fairly
  • Coaching an employee who may be struggling with production
  • Knowing when it is appropriate to take disciplinary measures to the next level
  • Dealing with serious conduct issues, such as sexual harassment
  • Avoiding the appearance of discrimination
  • Terminating an employee with just cause

After meeting with an employee, whether for positive or negative reasons, it is wise to record the main points, any decisions you make with the employee and what your next steps should be. Your documentation may be on a formal template you create or informally, but it should be objective, noting facts and behaviors and not your personal feelings about an employee. For example, instead of saying an employee is unreliable, you might record that the employee missed three important deadlines.

If an employee ever files a wrongful termination claim or another legal action against you, you may be thankful that you have kept careful and consistent documentation. The information you preserved may be helpful in building a strong defense against the accusations. With the guidance of a California attorney, you can develop good techniques for keeping employee records as well as having a skilled advocate when facing employment law claims.