We’re thrilled to sit down with Ling-Yi Tsai, a seasoned HRTech expert with decades of experience helping organizations navigate change through innovative technology. Specializing in HR analytics and the integration of tech solutions across recruitment, onboarding, and talent management, Ling-Yi offers a unique perspective on the evolving landscape of HR compliance. Today, we’ll dive into critical topics like the changing definition of adverse employment actions, the legal risks tied to performance management, and best practices for ensuring compliance with laws like the ADA. Let’s explore how HR leaders can adapt to recent legal shifts and protect their organizations while supporting their workforce.
Can you walk us through what an adverse employment action means in today’s workplace, especially with recent legal changes?
Absolutely. An adverse employment action traditionally referred to clear-cut actions like termination or demotion that negatively impact an employee. However, a recent U.S. Supreme Court ruling has broadened this definition. Now, any job action causing “some harm” to a term or condition of employment can qualify. This means even seemingly minor changes, like a shift in job duties or a mandatory requirement tied to performance plans, could potentially lead to legal claims if they’re perceived as harmful by the employee. It’s a significant shift that requires HR to be much more cautious and intentional about how decisions are framed and implemented.
How should HR approach performance improvement plans to ensure they’re seen as supportive rather than punitive?
Performance improvement plans, or PIPs, are a valuable tool, but they must be crafted with care. The key is to focus on specific, observable performance issues rather than personal characteristics or assumptions. Use constructive language—emphasize growth and provide clear, achievable goals with timelines. It’s also critical to offer resources like training or mentorship to show that the intent is to help, not punish. Regular check-ins during the PIP period can reinforce this supportive approach, ensuring the employee feels guided rather than targeted. Lastly, document everything meticulously to demonstrate fairness and consistency if the plan is ever challenged.
What strategies can HR use to train supervisors on avoiding bias or speculation about an employee’s health or disability?
Training supervisors on this is crucial, especially under the ADA, where even perceived disabilities are protected. Start by educating them on what not to do—avoid diagnosing or speculating about an employee’s health based on behavior or appearance. Role-playing scenarios during training can be effective, showing how to recognize a concern without overstepping. Emphasize a simple rule: if they notice something concerning, they should report it to HR without commenting directly to the employee. Reinforce that HR handles all disability-related discussions to ensure compliance and reduce bias. Regular refreshers on these policies help keep everyone aligned.
What are the potential pitfalls of making counseling or employee assistance program referrals a mandatory part of discipline?
Mandatory counseling or EAP referrals tied to discipline can be risky, especially now with the broader definition of adverse employment actions. If an employee perceives this as an intrusion or a penalty based on a suspected health issue, it could lead to claims under the ADA or other laws. For instance, requiring counseling as a condition of employment might be seen as assuming a disability, which is problematic. It’s better to start with voluntary options and ensure any mandatory referral is clearly job-related and tied to a business necessity, like safety concerns. Documentation is key—HR must show why this step was essential and how it connects to the role.
During the hiring process, how can HR ensure compliance with ADA rules when it comes to medical questions or exams?
ADA compliance in hiring is all about timing and fairness. Before a job offer, avoid any questions about health, medical history, or stress management—focus purely on the candidate’s ability to perform job duties. After a conditional offer, if medical exams are needed, they must be required for all candidates in that job category, not just some, to avoid discrimination. Ensure the exams are relevant to the role’s requirements. Also, keep any medical information confidential and separate from other employee records. Training hiring managers on these boundaries and updating interview scripts to exclude off-limits topics can prevent missteps.
What advice do you have for our readers who are looking to strengthen their HR practices in light of these evolving legal standards?
My biggest piece of advice is to prioritize proactive education and collaboration. Stay updated on legal changes by working closely with legal counsel—don’t wait for a claim to seek guidance. Invest in regular training for both HR and managers on topics like adverse employment actions, ADA compliance, and unbiased performance management. Build a culture of documentation—every decision, from PIPs to referrals, should be backed by clear, factual records. Finally, foster open communication with employees. When they feel heard and supported, it reduces the likelihood of disputes escalating. Small, consistent steps in policy and practice can make a big difference in protecting your organization and your people.