HRDV Midterm Review

Sex-Plus Cases

-A less obvious form of facially discriminatory practice occurs when neutral criteria are applied to some protected class groups but not others > Example: Refusing to hire women with children under age 5, but not men with children under age 5 -These cases are labeled sex-plus because they mostly involve different requirements based on sex, but the issue is really "protected class-plus"

Affirmative Action Preferences (1 of 4)

-Affirmative action often takes the form of good employment practices: identifying and encouraging diverse applicants, posting all job opportunities, eliminating unnecessary barriers, etc. -Measures like these do not leave anyone worse off and raise no issue of discrimination -But some employers go further and require a preference for women or persons of color for some jobs

Subjective Criteria (2 of 2)

-Employers cannot use their subjective judgments to defeat plaintiffs' prima facie cases of disparate treatment -The minimum relevant standard is based on the objective qualifications, not subjective ones -Employers are well advised to use objective criteria whenever feasible

Facially Discriminatory Policies/Practices: BFOQ Defense (1 of 3)

-Employers that base employment decisions on protected class characteristics engage in disparate treatment; it is a facially discriminatory policy or practice -If the employer can show that the protected class characteristic is a bona fide occupational qualification (BFOQ) for the job in question, then it has a valid defense to a charge of discrimination

Scored Tests of Ability (1 of 8)

-Employers use a variety of tests to assess desired characteristics of applicants such as intelligence, aptitude, specific job skills or knowledge, work-related attitudes, personality traits, strength, and physical fitness; those who score higher get hired -Frequently such tests are developed by consultants or testing companies that sell the rights to use the tests to employers, then interpret the results; but employers are still responsible for the legality of such tests

Criminal Records (1 of 3)

-Failing to check for a criminal record is probably the surest route to negligent hiring, but legal issues affect access to information and use of that information -It is important to distinguish between arrests and convictions -One with an arrest has been picked up by the police, but not charged with a crime; he may be a witness

References (1 of 4)

-Failure to check references - especially recent ones that possess information regarding wrongdoing by an employee at a previous job - can be evidence of negligence in hiring -But it is former employers being asked for information about their former employees that have the most to worry about regarding references

The Importance of Determining Whether an Employment Relationship Exists (1 of 2)

-First, if someone is an employee, her employer is required to withhold income taxes and to pay the employer's share of Social Security and Medicare taxes -Additional payments must be made for worker's compensation and unemployment insurance -But audits disclose that 10 to 30% of employers misclassify at least some employees as independent contractors

Interviews

-The degree of subjectivity involved in assessing candidates via interviews tends to be high -A systematic, structured interview process has both legal and practical benefits for employers > A court is less likely to find discrimination when all applicants have been asked substantially the same questions -Also, interviews should be conducted by multiple interviewers, preferably differing in race and sex

Substantive Rights Under Employment Laws (1 of 2)

-The starting point for determining substantive rights is the doctrine of Employment at Will -Many people believe they cannot be fired if they are doing a good job, but this is not true -Unless the employee has an employment contract for a certain term, the employer can fire the employee at any time for any reason, unless specifically prohibited by law

Chapter 4 - Recruitment

-To establish an employment relationship, an employer must first communicate information about the availability of an employment opportunity, and persons interested in pursuing the opportunity must make their interest known to the employer -These essential first steps in the process of becoming employed are recruitment

Proving Discrimination in Recruitment: Statistical Evidence (1 of 2)

-Unless recruiting efforts reach a broad spectrum of the available workforce and successfully convey the employer's sincere desire that all qualified candidates apply, the most careful and unbiased selection process will not result in equal employment opportunity -Discrimination in recruitment is especially insidious and difficult to combat

What Would You Do?

A good employee with a nearly flawless attendance record has missed work for 4 days in a row. Her supervisor has called to speak to her (since she has not called in, as required), but gets only her voicemail. Now, the supervisor wants to fire her, but has come to you to ask you to do it. As the Human Resources Manager (you are the person in charge), what should you do?

Medical Examinations (1 of 6)

A medical examination is defined as any "procedure or test that seeks information about an individual's impairments or health" Determining whether a health-related procedure is, in fact, a medical exam subject to the ADA's rules is not always a simple matter: -Medical Exam: Test to check for use of alcohol -Not a Medical Exam: Drug tests limited to a search for the use of illegal drugs

Scored Tests of Ability (8 of 8)

Accommodating Disabled Persons in Testing -The legal responsibility to accommodate disabled persons begins prior to their hiring and includes testing procedures -But unless the need for accommodation is obvious, an employer is not responsible for providing accommodation unless requested to do so by a disabled job candidate -Candidates should be informed in advance about the types of employment test used, so they may advise what is needed -Employers may require job candidates to document their need for accommodation in the process

Drug Tests (2 of 7)

A significant limitation: -The Fourth Amendment to the U.S. Constitution protects against unreasonable search and seizure -Public employers must be prepared to defend the reasonableness of their drug-testing programs -The general statutory requirement for drug testing is found in the Omnibus Transportation Employee Testing Act

Affirmative Action (1 of 4)

Affirmative action has been defined as: -"those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity" -Firms that do business with the federal government must comply with Executive Order 11246, requiring them to have a nondiscrimination clause in their contracts, and to affirmatively promote equal opportunity

Who is the Employer? (2 of 5)

Agency As a general rule, employers are legally responsible for the actions of their employees, so must carefully select, train, monitor them and review their actions Employer liability is usually limited to employee actions taken within the scope of employment: -Actions that relate to the kind of work the employee was hired to perform -Take place substantially within the workplace during work hours -Serve at least partially the interests of the employer

Application Process (2 of 8)

Application forms and other records produced in the hiring process must be kept for at least one year -The federal governments definition of applicant is broad -An internet applicant is one who expresses interest in employment via the internet Preemployment Inquiries -Employers must not ask questions whose answers reveal the protected class characteristics of job candidates (for example, on applications, during interviews, or during informal chatting with the applicant)

Recognizing Harassment (4 of 4)

Are the Harassing Behaviors Unwelcome? -People can view the same situations very differently -Verbal and physical conduct that would otherwise constitute harassment might be welcomed by lovers or friends who tease each other -The focus in harassment cases is on the "objective" existence of harassment viewed through the eyes of a hypothetical reasonable person; but plaintiffs must also show that they subjectively perceived their treatment as unwelcome

Background Checks (1 of 6)

Background checks are used to verify information provided by candidates and to determine whether any disqualifying factors exist Employer Responsibility for Employee Wrongdoing -Respondent superior makes employers directly liable for harm to others caused by employees acting within the scope of their employment

Application Process (1 of 8)

By and large, employers are free to decide -Whether applications will be accepted from anyone -What must be done to apply -How long applications will be accepted; and -How long submitted applications will remain valid Practical Considerations: What, if any, legal obligation do employers have to reasonably accommodate disabled job applicants during the recruitment process? Which types of modifications to the recruiting process might be called for?

Procedures for Enforcing Employment Law (5 of 7)

Class-Action Lawsuits -Most lawsuits are brought by one or a few named plaintiffs for themselves -In class-action lawsuits, plaintiffs sue on behalf of themselves and some larger group, alleging similar injuries -Plaintiffs must prove commonality among the class

Sources of Employment Law (3 of 3)

Common Law -Courts are sometimes asked to resolve disputes over matters that have not been objects of legislation or regulation -Over time, courts have recognized common law claims to enforce private agreements and to remedy certain types of harm -Examples: Courts interpret contracts, decide tort claims

Sources of Employment Law (1 of 3)

Constitutions -These address the relationships between federal and state government, and between governments and citizens; state action must be present if an employee seeks to sue -In practical terms, only employees of government agencies (not employees of private corporations) may find constitutional protection in the workplace

Enforceability of Arbitration Agreements (2 of 2)

Courts have also considered whether adequate notification was given of the arbitration agreement Was there a clear offer and acceptance? There must be a binding agreement, not merely a company policy Generally, employees should read and sign the agreements -Practical Considerations: Would you advise an employer to use arbitration agreements? Why or why not?

References (3 of 4)

Defamation (cont) Defenses to Defamation Claims: Consent and Qualified Privilege -If a former employee consents, the employer will not be subject to liability for giving a reference -Former employers providing references also have a qualified privilege to give references, which is conditional: > The statement cannot be made with reckless disregard for the truth, or with malice > The statement cannot receive overly broad publication

Scored Tests of Ability (7 of 8)

Determining Appropriate Cutoff Levels for Test Scores -Cutoff scores are established for tests so that scores below the cutoff are deemed "failing" and disqualify candidates -Employers must not adjust the score, or use different cutoff scores, for certain groups, what is known as race norming, though it applies to other protected class characteristics -However, the banding of test scores is permitted: test scores are treated as estimates of tested-for characteristics and banded into groups (e.g., 82 to 86) that are not statistically different

Disparate Treatment: A Closer Look (9 of 9)

Direct Method of Analyzing Disparate Treatment Cases -With sufficient evidence of a discriminatory motive, either direct or circumstantial, plaintiffs can prevail without showing pretext, at least with laws that permit a mixed motives analysis Subordinate Bias Theory of Liability ("Cat's paw") -The discriminatory motive of a subordinate can result in liability even though decision-making authority lies elsewhere

The Concept of Employment Discrimination (4 of 6)

Discrimination is a relative concept -Unequal treatment and outcomes can be discerned only by comparing what happens to some individuals with what happens to others in a workplace US anti-discrimination laws require consistent, evenhanded treatment of employees -An employer that treats ALL of its employees badly has not discriminated

Types of Discrimination (1 of 2)

Disparate treatment is unequal treatment based on one or more protected class characteristics -The key element is discriminatory intent Disparate impact (adverse impact) is the disproportionate denial of employment opportunity resulting from the use of a "neutral" practice that cannot be adequately justified -The focus is on discriminatory effects

Drug Tests (1 of 7)

Drug testing occurs under a variety of circumstances -With hiring -Periodic medical exams -For verification that employees who have been through drug rehabilitation programs are staying clean -On observations of aberrant behaviors that create a reasonable suspicion of drug use -Random drug testing

Drug Tests (3 of 7)

Drug-Testing Procedures 1. Employees must be provided with written notice that testing is required 2. Employees must be provided with copies of he employer's substance abuse and drug-testing policy 3. Employers must use licensed labs to analyze samples 4. Employers must perform confirmatory tests if requested or allow employees to have their own tests done

Drug Tests (5 of 7)

Drug-Testing Procedures (cont) -The federal Drug-Free Workplace Act (DFWA) applies to firms that have contracts to provide goods and services to the federal government -It requires that covered employers develop and communicate polices prohibiting drug use, possession, sale, or distribution in the workplace, and inform employees about the dangers of drug use, but it does NOT require drug testing

Drug Tests (4 of 7)

Drug-Testing Procedures (cont) 5. Employees must be given test results in writing 6. Employees who test positive must be given the opportunity to explain the result 7. Samples must be collected with due regard for employee privacy Chain of custody must be established Confirmatory tests must be done A qualified medical review officer must interpret results

Recruitment Methods (5 of 5)

Enlisting Day Laborers -Day laborers are those who, rather than having a fixed place of employment, perform temporary work such as gardening, tree trimming, yard cleanup, moving, construction work, house cleaning and elder care -Many, but not all, day laborers find work outside home supply stores, etc., because they are undocumented immigrants ineligible to work in the U.S. -The situation does not excuse employers from basic legal obligations such as the payment of promised wages

Scored Tests of Ability (5 of 8)

Establishing That Tests Are Job-Related and Consistent with Business Necessity -A discriminatory test can be defended if it is job-related and consistent with business necessity -Employers must have evidence of the validity of a test that is producing discriminatory effects; does it measure what it purports to measure? Content validation: A test has content validity to the extent that it requires the performance of the same behaviors and skills as the job in question

Scored Tests of Ability (6 of 8)

Establishing That Tests Are Job-Related and Consistent with Business Necessity (cont) -Criterion validation: Demonstration of a statistical association between performance on a test and performance on the job -Evidence needed to establish the validity of a scored test comes from a validation study; this requires a job analysis: what skills are actually required to do the job?

Who is the Employer? (1 of 5)

Even when it is agreed that a worker is an employee, identification of the employer is important because it generally determines who will be held legally responsible for any award or damages if an employee's rights are violated We will consider three aspects of this issue: -Agency -Integrated Enterprise -Joint Employers

Scored Tests of Ability (2 of 8)

Examining Test Items -Test items should be examined to see whether they relate to protected class characteristics, and tests containing such items should not be used Example: Target's tests for potential security guards contained many questions about religious beliefs: -"I believe there is a God" Other questions pertained to sexual orientation and behavior: -"I have never indulged in any unusual sex practices" These questions should never have been used

Scored Tests of Ability (3 of 8)

Examining Test Results -Scored tests can produce disparate impact discrimination -Such effects are best seen by examining applicant flow data -These compare the protected class composition of an applicant pool to that of the group of people who pass the test and are successful -Although individuals vary widely in ability, overall, people of different races, sexes, national origins and other protected classes are equally capable of doing most jobs

Scored Tests of Ability (4 of 8)

Examining Test Results (cont) -The EEOC's four-fifths rule says that if the selection rate for one race, sex or other protected class group is less than 80% (four-fifths) of the selection rate for the race, sex, etc. of the group that was most successful, the result constitutes evidence of discriminatory effects -Employers must monitor and maintain records of the effects of testing procedures on different protected class groups -The four-fifths rule should be applied to identify possible discriminatory effects

Credit Reports (2 of 3)

Fair Credit Reporting Act The Fair Credit Reporting Act (FCRA) is the major federal law regulating the gathering, sharing and use of information by employers and consumer reporting agencies It defines a consumer credit report as: -"Any written, oral or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness ... character, general reputation, personal characteristics, or mode of living which is expected to be used ... for the purpose of serving as a factor in establishing the consumer's eligibility for ... employment purposes"

Credit Reports (3 of 3)

Fair Credit Reporting Act (cont) -An investigative report contains information about character and reputation drawn from personal interviews with friends, neighbors, or others -For the information to fall under the purview of the FCRA, the information must be obtained from a consumer reporting agency -If an employer intends to take an adverse action against a job applicant or employee, it must first provide the person with a "pre-adverse action disclosure"

Proving Discrimination in Recruitment: Statistical Evidence (2 of 2)

Cases challenging discriminatory recruitment practices are often brought by the EEOC -Discrimination affects the applicant pool in a way that makes the discrimination harder to detect -There may be a "pattern or practice" of intentional discrimination; women and minorities may be excluded from even applying, knowing the employer is hostile to them -Statistical evidence requires comparing the applicant pool of the employer to the relevant labor market

Eliminating Harassment (1 of 8)

Harassment Policies and Complaint Procedures Employers should establish, communicate, and enforce detailed policies prohibiting harassment Real harassment policies have more than a "paper existence:" -They should be included in employee handbooks, made available in multiple languages where necessary, posted in visible areas, discussed when orienting new employees, and made the subject of training

Eliminating Harassment (3 of 8)

Harassment Policies and Complaint Procedures (cont) Practical Considerations: Look up the harassment policy of an employer that you work for or the school that you attend. How does this policy compare to the advice contained in this chapter? Are any important items missing from this policy?

Eliminating Harassment (2 of 8)

Harassment Policies and Complaint Procedures(cont) Real Policies have more than a "paper existence:" (cont) -Employers should provide training for prevention of harassment and discrimination; the training must be of high quality geared toward the particular employee audience, part of a larger set of preventive measures -Harassment policies must provide strong and credible assurances that those reporting harassment will be protected from retaliation; and more

Medical Examinations (4 of 6)

Genetic Tests -Medical exams also include genetic tests aimed at assessing the predisposition of persons to develop medical conditions or pass them on to offspring -Genetic testing promises medical benefits but also lends itself to misuse, particularly in the ands of employers and insurers -The Genetic Information Nondiscrimination Act (GINA) covers employers with 15 or more employees, and applies to employment and health insurance decisions

Medical Examinations (5 of 6)

Genetic Tests (cont) -Under GINA, Employers must generally refrain from requesting, requiring, purchasing, or otherwise acquiring genetic information regarding applicants and employees -Genetic testing can take the form of genetic screening of job candidates -Genetic monitoring can be used to spot adverse changes in the genetic material of employees exposed to hazardous substances -GINA prohibits discrimination on the basis of genetic information

Facially Discriminatory Policies/Practices: BFOQ Defense (3 of 3)

Grounds for Recognizing BFOQs -Authenticity: a female actor for a female role -Public safety: hiring only males for certain prison jobs -Privacy: a psychiatric hospital's policy of having one member of each sex on duty at all times; adolescent victims of sexual abuse might be willing to speak only to members of one gender

Eliminating Harassment (4 of 8)

Harassment Policies and Complaint Procedures(cont) Responding to Reports of Harassment -Employers must respond promptly and in a way reasonably calculated to stop and correct harassment -Once informed, employers should look into the matter despite any misgivings that the employee has about going forward with a complaint -In a case where the employer failed to investigate, and embarrassed and drove the plaintiff out of the firm, it was legally liable for punitive damages

Recognizing Harassment (2 of 4)

Harassment That Results in Tangible Employment Actions -These claims often involve a sexual advance or demand for sexual favors that can be "traded for some employment outcome; (quid pro quo is used to describe these cases) -To succeed, plaintiff must show that the action is causally linked to her rejection of or submission to harassment

Liability for Harassment (6 of 6)

Harassment by Coworkers or Third Parties -Coworkers and third parties are capable of creating hostile environments for other employees -In such cases, the employer will be liable under the negligence standard if: 1. The employer knew or should have known of the harassment 2. The employer failed to take prompt and appropriate action to stop the harassment

Liability for Harassment (1 of 6)

Harassment by Top Officials, Managers and Supervisors -When one in a position to act and speak for the firm engages in harassment, the firm is vicariously liable for the harassment -Vicarious liability means that if the alleged acts occurred, legal responsibility for damages is unconditionally placed with the employing organization

Liability for Harassment (2 of 6)

Harassment by Top Officials, Managers and Supervisors (cont) -For managers and supervisors other than top officers, liability is more complex -For purposes of assigning liability to employers in harassment cases, supervisors are individuals who have authority to make significant changes in the employment status of the victim of harassment

Liability for Harassment (4 of 6)

Harassment by Top Officials, Managers and Supervisors (cont) -If managers or supervisors engage in conduct that creates hostile environments for employees they manage, but does not result in tangible employment actions, employers can avoid liability by establishing both prongs of an affirmative defense: 1. The employer exercised reasonable care to prevent and correct harassment 2. Plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer

Liability for Harassment (3 of 6)

Harassment by Top Officials, Managers and Supervisors (cont) -If the harasser is a supervisor, the firm is vicariously liable for the harassment, but may avoid liability if the supervisor did not use his decision-making authority to effect the harassment -If the harasser is NOT a supervisor, the employer is liable only if it was negligent in allowing the harassment to occur

Liability for Harassment (5 of 6)

Harassment by Top Officials, Managers and Supervisors (cont) -Whether reasonable care to prevent harassment was exercised depends first on the existence of a sound harassment policy and complaint procedure -Without these, an employer will not be able to establish an affirmative defense

Chapter 8- Harassment

Harassment is a major obstacle to realizing equal employment opportunity; it can: -Intimidate and isolate employees -Keep them from doing their best work -Result in physical or psychological harm, and -Ultimately drive its victims from the workplace Although sexual harassment claims are the most common type, harassment also affects other protected classes

Recognizing Harassment (3 of 4)

Hostile Environment Harassment -A hostile environment can result from a wide range of verbal conduct, including insults, epithets, tasteless jokes, profanity and requests for sexual favors; physical conduct including touching, exposure, staring, stalking, sexual assault and rape and displays of images -A hostile environment must be sufficiently severe or pervasive to be actionable; a trade-off exists between them; the more severe the action is, the less pervasive it must be

Procedures for Enforcing Employment Law (2 of 7)

How Long Does the Employee Have to Bring a Case? -What is the limitations period? -Does equitable tolling apply? -For pay discrimination cases, the Lily Ledbetter Fair Pay Act established that each discriminatorily low paycheck is a separate violation that starts the limitations period anew

Retaliation: A Closer Look (1 of 4)

In these cases, an employee is disadvantaged because of having engaged in protected activity related to civil rights in employment -Protecting persons who act to uphold their rights or help others to do so is essential if the law is to have any effect Analyzing Retaliation Cases -The focus is on mistreatment stemming from an employee's protected activity, rather than on a protected class characteristic

Who is the Employer? (3 of 5)

Integrated Enterprise -Organizational structures are complex -To determine whether two or more ostensibly separate entities should be considered parts of an integrated enterprise, the EEOC considers the degree: 1. of interrelation between the operations 2. to which the entities share common management 3. to which there is centralized control of human resources and labor relations policies 4. of common ownership or financial control over the entities

Eliminating Harassment (5 of 8)

Investigating Reports of Harassment -A police department's investigation of a sexual harassment complaint was held to be inadequate when the investigators failed to interview the alleged harasser promptly, gave him time to concoct an elaborate defense, accepted his claims as true without trying to verify them, failed to interview a witness whose account was favorable to the complainant, and discounted evidence favorable to the complainant

Eliminating Harassment (8 of 8)

Investigating Reports of Harassment (cont) Practical Considerations: Under which circumstances is termination of a harasser the appropriate remedy? Is it advisable for an employer to have a "zero tolerance" policy with respect to violations of its harassment policy?

Eliminating Harassment (6 of 8)

Investigating Reports of Harassment (cont) -However, the law does not require a firm to conduct a full-blown, due process, trial-type proceeding; all that is required is reasonableness in all of the circumstances; the permissible circumstances may include conducting the inquiry informally in a manner that will not unnecessarily disrupt the firm's business, and in an effort to arrive at a reasonably fair estimate of truth -It is vital that investigators remain neutral

Eliminating Harassment (7 of 8)

Investigating Reports of Harassment (cont) -Remedies for Harassment: Employers should take initial, temporary measures on receiving harassment complaints, and then long-term remedial measures based on the outcomes of investigations -The discipline or other remedies used should correspond to the severity of the harassment and be reasonably calculated to end it; high-level employees or "star" performers must not be given a pass or treated more leniently than others who engage in such conduct

Procedures for Enforcing Employment Law (6 of 7)

Is There an Administrative Prerequisite to a Lawsuit? -Some employment laws require that a charge be filed with an administrative agency, which seeks conciliation to resolve the dispute before the employee can go to court -If conciliation fails, the EEOC, for example, issues a right to sue letter, permitting the employee to sue in court

Instructor's Notes for What Would You Do (3 of 4)

Issue 1: Why? (cont) -This is not only the human thing to do, there may also be legal issues involved, with consequences for the firm, such as a medical condition for which a reasonable accommodation is required under the Americans with Disabilities Act, or an assault by her supervisor; right now, we simply don't know -But try to get students to recognize that they should not take action until they know what has happened

Instructor's Notes for What Would You Do (2 of 4)

Issue 1: Why? Why is a good employee suddenly missing? Before deciding what action to take, you must know what has happened Is she in danger? Ill? As quickly as possible, someone should go to her home and see if she is alive and well -If she is ill, render assistance -If she is well, find out what has caused her absence and her failure to contact her supervisor or the firm

Instructor's Notes for What Would You Do (4 of 4)

Issue 2: Communication: The HR manager should speak first to the supervisor, then to the employee, when she is contacted, to determine the reason for her absence, and offer help, if needed; depending on the nature of the problem, it may be appropriate at some point to advise the employee that her conduct must improve Issue 3: Documentation: Both the HR manager and the supervisor should document these difficulties and their actions in order to protect the firm

Criminal Records (2 of 3)

It is important to distinguish between arrests and convictions(cont) One with a conviction has been found guilty of a crime: -Felonies are more serious crimes for which more than a year in prison may be imposed -Misdemeanors are less serious offenses that may be punished by a fine and/or imprisonment of up to one year

Who is the Employer? (4 of 5)

Joint Employers Joint employers maintain employment relationships with some of the same employees; they may exist when: -Firms get their workers from temporary staffing firms or other labor providers -Firms agree to share staff -Firms subcontract with other firms to produce goods or services -Firms operate through the sale of franchises

Who is the Employer? (5 of 5)

Joint Employers (cont) Practical Considerations: How should companies that use temp workers supplied by temp agencies deal with those workers if performance problems emerge? -If temp workers complain about inequitable treatment? -If temp workers request leave under the Family and Medical Leave Act?

The Concept of Employment Discrimination (1 of 6)

Major Federal Anti-discrimination statutes: -Title VII, Civil Rights Act of 1964 -Equal Pay Act (EPA) -Age Discrimination in Employment Act (ADEA) -Pregnancy Discrimination Act (PDA) -Americans with Disabilities Act (ADA)

Procedures for Enforcing Employment Law (1 of 7)

Many enforcement procedures exist for bringing and resolving claims for violations What Does an Employee Decide to Do When She Believes That Her Rights Were Violated? -Are the rights enforced by a government agency? -Seeking to enforce rights is expensive, protracted, uncertain and an emotionally draining process

Procedures for Enforcing Employment Law (7 of 7)

Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding? The law is changing regarding the answer to this question -An employer may escape liability for harassment by a supervisor if an employee unreasonably refuses to avail herself of the employer's complaint procedure -A more fundamental change has been the rise of alternative dispute resolution (ADR) procedures to replace lawsuits, including mediation and arbitration

Background Checks (2 of 6)

Negligent Hiring -The legal concept of negligence is based on the idea that people have a duty to others to exercise reasonable care in carrying out certain activities -When that duty is not met, and the failure is a proximate cause of harm to others, the party who failed may be found negligent

Background Checks (4 of 6)

Negligent Hiring (cont) -But most of the time the question depends on foreseeability: how foreseeable was it that hiring an unfit person would cause harm to others? -Knowledge in this context means that the employer was - or should have been aware - that the person hired was unfit -Proximity involves the connection between the employee and events as they unfolded

Background Checks (3 of 6)

Negligent Hiring (cont) -Negligent hiring extends an employer's liability for harm caused by their employees OUTSIDE the scope of employment if the employer failed its duty to conduct an adequate background check and hired an unfit employee, who uses his or her position to harm others -Courts may look to public policy to determine if a particular type of employment is sensitive and calls for greater care in hiring

Background Checks (5 of 6)

Negligent Hiring (cont) Conducting Background Checks: General Advice An adequate background check depends on the circumstances: -Is a driver's license required? What is the driving record? -Is a professional license required for the job? -Would a criminal history of violence disqualify?

Background Checks (6 of 6)

Negligent Hiring (cont) Privacy Rights and Background Checks -The Supreme Court has left open the possibility that employees enjoy a constitutional right to informational privacy when being subjected to background checks by government agencies -Gathering sensitive information on employees and job candidates necessarily raises questions about secure storage and handling of that information

References (4 of 4)

Negligent Referral -What if the references are provided, but are misleading and fail to include evidence of unfitness known to the former employer? -In a number of states, a former employer can be sued for negligence in referring an unfit employee who then harms others in his new job Practical Considerations: In light of the many legal concerns surrounding references, should employers provide substantive references or only verification of job titles and dates of employment?

Recruitment Methods (4 of 5)

Nepotism and Word-of-Mouth Hiring Nepotism refers to favoritism toward family members and other relatives -Nepotism is not a per se violation of Title VII, but when the work force is predominantly white, nepotism operates to exclude minorities as effectively as any intentionally discriminatory policy Word-of-Mouth recruiting has similar potential to result in discrimination

The Concept of Employment Discrimination (5 of 6)

Protected Classes (Federal): -Race, color (Title VII, Civil Rights Act) -Sex (Title VII, Civil Rights Act, Equal Pay Act) • National origin (Title VII, Civil Rights Act, Immigration Reform & Control Act) -Religion (Title VII, Civil Rights Act) -Citizenship - Citizens or legal aliens (Immigration Reform & Control Act) -Age - 40 and older (Age Discrimination in Employment Act)

The Concept of Employment Discrimination (6 of 6)

Protected Classes (federal): (cont) -Disability - "Qualified individual with a disability" (Americans with Disabilities Act, Rehabilitation Act) -Pregnancy - Pregnancy, childbirth, and related medical conditions (Pregnancy Discrimination Act) -Military service (Uniformed Services Employment and Reemployment Rights Act) -Genetic information (Genetic Information Nondiscrimination Act)

Determining Which Employment Laws Apply (1 of 2)

Public Sector or Private Sector Employment Unionized or Nonunion Workplace Employer Size -Employees are counted by the payroll method Geographic Location -Practical Considerations: How should employers that operate in different states and cities deal with the lack of uniformity in employment laws?

Remedies for Violations of Employment Laws

Remedies available in employment cases include: -Attorneys' fees -Court orders -Back pay -Front pay -Reinstatement -Hiring -Liquidated damages (for serious, intentional violations) -Compensatory damages (including pain and suffering), and -Punitive damages (intended to punish the employer)

Promotions

There are lines of progression in work organizations such that promotions usually occur out of particular positions -If the effect of hiring is to segregate some groups into dead-end jobs, that effect will also manifest itself in future promotional decisions The process for making promotions is often informal and covert; available positions might not be posted Some employees are offered training opportunities which lead to promotion; others are not

Affirmative Action (2 of 4)

Similar requirements apply under The Rehabilitation Act of 1973, and VEVRAA -Compliance is monitored by the Office of Federal Contract Compliance Programs (OFCCP) An affirmative action program may be required by a consent decree For most employers, adoption of an affirmative action plan is voluntary and requires a written affirmative action plan

Sources of Employment Law (2 of 3)

Statutes -Laws affecting employment: Title VII of the Civil Rights Act, the Labor Relations Act, the Equal Pay Act; more Executive Orders -Example: EO #11246 prohibiting discrimination by federal government contractors Regulations, Guidelines, Administrative Decisions -Example: OSHA safety standards

Who is an Employee? (12 of 16)

Students and Interns -If work is performed for educational institutions by students, at least partly for educational purposes, are those people employees, students, or both? Most recently, the NLRB concluded that: -Graduate teaching and research assistants are employees (as well as students) -Student athletes have the right to unionize

Subjective Criteria (1 of 2)

Subjective criteria rely heavily on intuition and gut reactions, rather than systematic observation and measurement -They can result in disparate impact discrimination Employers in a service economy may emphasize the soft skills of candidates (motivational, interpersonal and communication skills) -A study of labor market experiences of inner-city blacks and Latinos found that use of subjective criteria led to fewer being hired -Employers want a good "fit"

Who is an Employee? (11 of 16)

Temporary Workers -Legal problems can arise when temporary workers ("temps") - especially those kept on for long periods of time and doing the same work as regular employees - challenge their exclusion from employee benefits -Microsoft's "permatemps" is a case in point

Verifying Employment Eligibility (1 of 3)

The Immigration Reform and Control Act The Immigration Reform and Control Act (IRCA) has two main requirements: -All employers are prohibited from knowingly hiring or retaining unauthorized aliens on the job -An employer with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin and citizenship

Verifying Employment Eligibility (3 of 3)

The Immigration Reform and Control Act (cont) Practical Considerations: What should employers do to make it less likely that an audit of their I-9 forms will reveal problems Would you recommend that employers that are not legally required to do so voluntarily participate in the E-Verify program? Why or Why not?

Verifying Employment Eligibility (2 of 3)

The Immigration Reform and Control Act (cont) For people hired, the employer must: -Within 3 days, verify the eligibility of ALL hires to work in the U.S, by viewing documents establishing eligibility, and recording them on the I-9 form provided by the government -Documents typically include a Social Security card, driver's license, birth certificate, U.S. passport, resident alien registration card, and others -Employers are not required to investigate the authenticity of the documents if they reasonably appear to be genuine

Affirmative Action Preferences (3 of 4)

The Legality of Affirmative Action Preferences under Title VII Some basic requirements: -The employer may use affirmative action only if a formal, written affirmative action plan is in place -It must be remedial in nature, designed to remedy the underutilization of women and persons of color -It must be temporary and terminated after the underutilization is corrected -It must not set quotas

Affirmative Action Preferences (4 of 4)

The Legality of Affirmative Action under the U.S. Constitution -Affirmative Action plans are subject to strict scrutiny -A public employer must show that the plan serves a compelling governmental interest -The measures must be narrowly tailored

Sex Stereotyping

The Supreme Court found that a woman denied partnership at an accounting firm because she was not "feminine" enough was the victim of sex stereotyping, and the firm had discriminated, but the cases are not consistent Discrimination Against Caregivers -Stereotypes about caregivers can detrimentally affect both male and female employees

Glass Ceilings

Obstacles to advancement into high-level management and professional positions are often unavailable to women and people of color because of the glass ceiling: -Those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing in their organization into upper management positions Employers should monitor the career progress of women and people of color, and examine the protected class composition of positions from which advancement occurs

The Concept of Employment Discrimination (2 of 6)

Other Anti-Discrimination Provisions: -U.S. Constitution, 14th Amendment, equal protection -Executive Order 11246, which applies to federal contractors and subcontractors -States and cities have their own anti-discrimination laws that mirror and sometimes extend federal protections

Who is an Employee? (16 of 16)

Other Issues Concerning Employee Status -Managers and supervisors are generally considered employees, but they are not protected by the NLRA and are often exempted from coverage under wage and hour laws -Undocumented workers are treated the same as other employees and allowed to pursue their legal claims, but their remedies may be limited

Who is an Employee? (14 of 16)

Partners -To distinguish between employees and partners, the EEOC considers: 1. Whether the organization can hire or fire the individual or set rules and regulations controlling the individual's work 2. Whether and to what extent the organization supervises the individual's work 3. Whether the individual reports to someone higher in the organization

Who is an Employee? (15 of 16)

Partners (cont) The EEOC considers: (cont) 4. Whether and to what extent the individual is able to influence the organization 5. Whether the parties intend for the individual to be an employee or a partner, as expressed in a written agreement or contracts 6. Whether the individual shares in the profits, losses, and liabilities of the organization

The Role of Managers in Legal Compliance (3 of 3)

Practical Considerations: (cont) -Responding to legal problems as they arise or proactively investing in policies and practices designed to avoid legal problems? -Litigating aggressively or attempting to work things out with employees who believe that they have been wronged?

Weight and Appearance (2 of 2)

Practical Considerations: Are workplace appearance and grooming policies necessary? If so, what policy would you recommend with regard to office workers who have some contact with clients or customers? To what extent should the policy differentiate between male and female employees?

Facially Discriminatory Policies/Practices: BFOQ Defense (2 of 3)

Practical Considerations: It is often said that one of the benefits of a diverse workforce is that employees will be able to better relate to diverse customers. Should employers make hiring decisions or assign work with the aim of matching the protected class characteristics of employees and customers? If not, what should employers do?

Retaliation: A Closer Look (4 of 4)

Practical Considerations: Retaliation claims are ever more common. The urge to "get back at" employees who complain about discriminatory treatment is apparently difficult to resist. What should employers do to lessen the occurrence of retaliation?

Criminal Records (3 of 3)

Practical Considerations: What policy would you recommend that an employer adopt regarding use of criminal history in hiring decisions? Why? Would the policy differ according to the type of job in question? If so, how?

The Role of Managers in Legal Compliance (2 of 3)

Practical Considerations: Which of the following legal compliance strategies would you advise an employer to adopt? Why? -"Pushing the envelope" in areas of legal uncertainty or erring on the side of caution? -Doing no more than the minimum required by the law or going well beyond that?

Application Process (3 of 8)

Preemployment Inquiries (cont) Inadvisable preemployment inquiries fall into four general categories; Employers: -Should not directly inquire about protected class characteristics -Should not indirectly inquire about protected class characteristics -Should avoid questions about requirements or criteria that are not uniformly applied to all job candidates -Should avoid questions about requirements that have a high probability of producing disparate impact

Application Process (4 of 8)

Preemployment Inquiries (cont) Medical Inquiries Prior to a Conditional Offer of Employment -The ADA differs from other federal anti-discrimination laws in directly prohibiting preemployment inquiries that might reveal the existence, nature, or severity of an applicant's disability -Employers must refrain from seeking medical information from all applicants, disabled or not

Application Process (5 of 8)

Preemployment Inquiries (cont) Medical Inquiries Prior to a Conditional Offer of Employment (cont) -Medical inquiries include questions about disabilities, medical and psychological conditions, medical histories, medications taken and workers' compensation claims filed -Employers should seek that information ONLY after job candidates have been conditionally offered employment based on their qualifications

Application Process (8 of 8)

Preemployment Inquiries (cont) Statements by Employees -In cases where employers must defend their refusal to hire, courts regard refusal to hire due to falsification or omission by the applicant as a legitimate, nondiscriminatory reason for not hiring -Cases involving after-acquired evidence of deception may result in dismissal for the deception, even after the employee has filed a valid claim

Application Process (6 of 8)

Preemployment Inquiries (cont) Statements by Employers -Recruitment entails extracting information from job candidates, but also providing information and attempting to persuade candidates to accept job offers -Fraud, negligent misrepresentation and breach of contract may result from misrepresentations and unfulfilled promises

Application Process (7 of 8)

Preemployment Inquiries (cont) Statements by Employers (cont) Practical Considerations: To the extent that doing so is permitted by state law, would you recommend that an employer examine job candidates' social media activity in the recruiting process? Why or why not? If you think that this approach should be used, how should it be implemented?

Disparate Treatment: A Closer Look (7 of 9)

Pretext: Indirect Method ... (cont) -Direct evidence may be "smoking gun" evidence, though this is rare today -Usually, cases turn on circumstantial evidence, which hints at the possibility of discrimination, but by itself is not sufficient to compel that conclusion Examples: -Statements made by company officials suggesting bias -Information about prior mistreatment of employees

Disparate Treatment: A Closer Look (8 of 9)

Pretext: Indirect Method ... (cont) Practical Considerations: In light of the way in which disparate treatment cases are decided, why is it important that employers document the reasons for their employment decisions? Develop and consistently adhere to policies? Carefully monitor and review decisions, particularly terminations? Train supervisors?

Disparate Treatment: A Closer Look (6 of 9)

Pretext: Indirect Method of Analyzing Disparate Treatment Cases -In McDonnell Douglas v. Green, the Supreme Court provided a method for deciding pretext cases -The method is "indirect" because it focuses on ruling out other nondiscriminatory explanations, which leads to a showing that discrimination is the most likely cause -Plaintiff must show a prima facie case, the burden shifts to the employer to show a lawful motive, then the burden shifts back to the employee to disprove that purported motive

Drug Tests (6 of 7)

Use of Drug Test Results -Courts are reluctant to protect at-will employees from termination based on drug tests, even if the tests were conducted improperly -Disparate treatment claims are possible if similarly situated employees are treated differently -Courts have generally upheld the decisions of arbitrators to reinstated unionized employees testing positive for reasons of contract, or circumstances

Drug Tests (7 of 7)

Use of Drug Test Results (cont) -Employers should treat drug tests results as confidential Practical Considerations: Would you advise an employer that operates retail clothing stores to drug test its employees? If so, under which circumstances? Using which procedures? What should be done regarding applicants or employees who test positive?

Who is an Employee? (7 of 16)

Using Independent Contractors (ICs) -A firm cannot establish independent contractor status simply by labeling its workers that way -Because right of control is so important in determining worker status, firms must be prepared to relinquish most of their control over how the work is done if they want to use independent contractors rather than employees

Who is an Employee? (10 of 16)

Using Independent Contractors (cont) Practical Considerations: Try your hand at drafting an independent contractor agreement that a firm that sells carpeting might use for its installers -Don't worry about making your agreement sound like legalese -Focus instead on what such an agreement should specify

Who is an Employee? (8 of 16)

Using Independent Contractors (cont) To achieve IC status, most of the following conditions must be met: -Require that ICs supply their own tools, materials, and equipment, and pay their own business expenses -Require that ICs hire their own assistants -Pay ICs a flat fee for the work performed rather than an hourly or weekly rate

Who is an Employee? (9 of 16)

Using Independent Contractors (cont) To achieve IC status: (cont) -Closely review long-term ICs and do not assign new projects without renewing agreements -Do not have ICs do the same work that regular employees do or work that is central to the business -Do not provide benefits to ICs, nor paid time off -Make it clear that ICs are free to work for others

Recruiting Foreign Nationals for U.S. Employment (1 of 2)

Visa Programs Foreign nationals who do not have a green card must obtain visas permitting them to work in the U.S. Visa classifications include: -H-1B visas (granted to those in specialty occupations) -H-1B dependent employers must meet additional requirements -H-2 visas (for foreign nationals working temporarily) -L-1 visas (to temporarily transfer staff from foreign facilities to operations in the U.S.)

Who is an Employee? (13 of 16)

Volunteers -Disputes occasionally arise regarding volunteers -A nonprofit agency serving addicts and the homeless also ran several commercial for-profit businesses to raise operating funds, and the agency's clients received food, clothing, shelter and medical, but not wages -The Supreme Court held they were employees entitled to minimum wage

Recruitment Methods (1 of 5)

Want Ads and Job Announcements Typical early steps are to: -Produce documents that announce the job -Describe the job and its requirements; and -Tell prospective applicants what they must do to apply -These documents are printed in newspapers or professional magazines posted on bulletin boards and the Internet, or otherwise made available

Recruitment Methods (2 of 5)

Want Ads and Job Announcements (cont) Title VII of the CRA is explicit about employers' obligations in producing such materials: -It is unlawful for an employer to print or publish such a notice indicating any preference, limitation, specification or discrimination, based on race, color, religion, sex, or national origin -The wording of such ads must be a neutral message

Who is an Employee? (1 of 16)

-In Title VII, Congress defined an employee as "an individual employed by an employer...", a definition which is hopelessly circular -The fact that a person performs work for another and is paid does not distinguish between employees and independent contractors -Difficulties also arise with temps, interns, students, volunteers, and partners

Affirmative Action Preferences (2 of 4)

-In reverse discrimination cases, an employee alleges disparate treatment, that the employer exercised that preference and chose a less qualified woman or person of color instead -The employer argues that protected class characteristics were used, but it was permissible because of its affirmative action plan

Disparate Impact: A Closer Look (1 of 2)

-In these cases, the issue is whether a neutral requirement poses an unnecessary obstacle to employment opportunity, one that harms some protected class group more than others -The landmark case on this issue was Griggs v. Duke Power -In 1991, Title VII of the Civil Rights Act was amended to cover disparate impact claims

The Continuing Reality of Employment Discrimination

-Many things have changed for the better since the Civil Rights Act of 1964 was enacted -But rooting out contemporary manifestations of discrimination may prove even more difficult than confronting the overt discrimination of earlier years -The "glass ceiling" limits the access of women -Discrimination is inherently difficult to prove

Substantive Rights Under Employment Laws (2 of 2)

-Nondiscrimination and Equal Employment Opportunity -Freedom to Engage in Concerted Activity and Collective Bargaining -Terms and Conditions of Employment That Meet Minimum Standards -Protection of Fundamental Rights -Compensation for Certain Types of Harm

Instructor's Notes for What Would You Do (1 of 4)

-Note that students will often try to pass the problem up the chain of command, saying that they will ask their boss what to do; that is not an appropriate answer -These problems are designed so that students can think through the issues on their own; make certain that they understand that for ALL of these problems, they are the decision-makers

Credit Reports (1 of 3)

-People tend to think of credit reports as gathering information about their creditworthiness, used by financial institutions in deciding whether to extend credit -But credit reports are also used by employers in making hiring decisions -The legal definition of what constitutes a credit report is broad, extending beyond financial information

Weight and Appearance (1 of 2)

-Physical appearance has a pervasive effect on employment outcomes; those judged better looking are more likely to get hired, be promoted and be paid more -Except for a very few jurisdictions, weight is not a protected class -But obesity, or morbid obesity may violate the ADA if the applicant is considered disabled because of weight, although qualified for the job

The Role of Managers in Legal Compliance (1 of 3)

-Recognize, analyze and deal effectively with employment law issues -Put in place sound policies and practices that PREVENT legal problems from arising in the first place -Enforce compliance with established law and develop strategies for dealing with unclear legal issues -Know when to seek legal advice -Define the employer's legal compliance strategy

The Importance of Determining Whether an Employment Relationship Exists (2 of 2)

-Second, most of the laws discussed in this book do not apply without an employment relationship -Also, contractual benefits from employer's policies and benefit programs apply only to employees Contingent work (nonstandard work) represents other work situations -In addition, employment laws often apply or not, depending on how many employees a firm has -And even when a person is an employee, there can be questions about the identity of the employer

Historical Development of U.S. Employment Law

1900: Essentially no employment law existed 1900s: State workers' compensation laws • 1930s: National Labor Relations Act 1960s: Title VII, Civil Rights Act; Age Discrimination Act; Equal Pay Act 1980s: Common law claims such as wrongful discharge 1990s: Americans with Disabilities Act 2000: Genetic Information Nondiscrimination Act Employment laws reflect the work of social movements

Polygraphs and Honesty Tests

A polygraph does not "detect lies," but measures change in physiological responses like respiration, blood pressure and perspiration -Before the Employee Polygraph Protection Act (EPPA), preemployment polygraphs were widely used -Now, private sector employers must not request or require that applicants submit to polygraphs or other similar mechanical or electrical tests, but they can still use paper-and-pencil honesty tests

Disparate Impact: A Closer Look (2 of 2)

Analyzing Disparate Impact Cases -A neutral requirement or practice refers to anything other than protected class characteristics used as grounds for making employment decisions -The requirement or practice must fall more heavily on some protected class groups than others -The employer must show that the requirement is job-related and consistent with business necessity -In age-based (ADEA) disparate impact claims, the employer must show that the practice is a reasonable factor other than age

Retaliation: A Closer Look (3 of 4)

Analyzing Retaliation Cases (cont) -In a case where an employee's employment opportunities were not fundamentally altered, plaintiff must also show that a materially adverse action was taken, in order to establish a prima facie case of retaliation -In third-party retaliation cases, it is not the employee who is retaliated against, but someone close to the employee

Retaliation: A Closer Look (2 of 4)

Analyzing Retaliation Cases (cont) -Two broad classes of protected activity are participation and opposition -Participation refers to involvement in the enforcement of anti-discrimination law (i.e., filing a charge, testifying) -Opposition refers to resisting or speaking out against discrimination apart from participating in formal enforcement procedures (complaining about discrimination to company officials, speaking out)

Harassment as a Form of Discrimination (1 of 5)

Because of Sex -Harassment claims are brought under general anti-discrimination laws like Title VII rather than under laws specifically addressing harassment -But discrimination cannot be proven unless it was based on a protected class characteristic -In sexual harassment cases, plaintiff must show that he or she was the victim of harassment because of sex

Harassment as a Form of Discrimination (2 of 5)

Because of Sex (cont) -Establishing the discriminatory motivation behind harassment can be difficult -Consider same-sex harassment cases, in which the harasser and the person harassed are of the same sex -Judges often have difficulty concluding that heterosexual harassers choose to harass people of the same sex because of their sex -Plaintiff must prove that the harassment is because of sex

Harassment as a Form of Discrimination (4 of 5)

Because of Sex (cont) -If a harasser subjects both men and women to harassment (an equal opportunity harasser), courts often conclude that the harassment was not because of sex; both sexes were disadvantaged -But courts have sometimes found discrimination to exist where equal opportunity harassers harassed men and women in different, sex-specific ways, or if one sex is more likely to be harassed than the other

Harassment as a Form of Discrimination (5 of 5)

Because of Sex (cont) -Not all mistreatment and abuse of employees falls within the ambit of harassment or the protection of anti-discrimination laws -Workplace bullying has been defined as "repeated interpersonal mistreatment that is sufficiently severe as to harm a targeted person's health or economic status" -But victims of workplace bullying often lack a legal remedy; it is not a legal claim recognized by courts

Harassment as a Form of Discrimination (3 of 5)

Because of Sex (cont) The Supreme Court ruled that harassment because of sex can be proven by: -Showing that the harasser is gay or lesbian and motivated by sexual desire -The victim is harassed in such sex-specific and derogatory terms that harassment is clear -The harasser in a mixed-sex workplace treated people differently based on their sex

Procedures for Enforcing Employment Law (3 of 7)

Can a Lawsuit Be Brought? By Whom? -Most employment laws enable employees to enforce their rights through lawsuits against their employers -When a lawsuit is filed, considerable managerial time is spent responding to requests for records, answering interrogatories, and the like -Best advice: Answer questions truthfully and succinctly and have documentation to back you up -Settlements are a common outcome of litigation

Procedures for Enforcing Employment Law (4 of 7)

Can a Lawsuit be Brought? By Whom? (cont) -A federal court case begins at the district court -Many cases filed against employers are dismissed without a trial pursuant to a summary judgment -This means that even if what plaintiff says is true, it does not state a legal claim; plaintiff bears the burden of proof -These decisions can be appealed to a federal appeals court, and to the Supreme Court if it grants certiorari -Judges follow stare decisis, for consistency

References (2 of 4)

Defamation -Defamation claims can arise any time a person makes a statement about another person -"Reference" applies here to any information that a former employer provides to a prospective new employee -False statements that reflect badly on a person are communicated to others, which results in damage to the person's reputation -Defamatory statements are not merely negative, they must be false

Offering and Accepting Employment

Employers (with legal help) should put employment offers in writing; the offer should specify: -Whether employment at will is offered and what that means -What is included in the terms of employment and indicate that no further commitments have been made -Whether the offer is conditional, and upon what conditions A breach of contract action generally will not prevail under employment at will, but courts recognize claims for promissory estoppel in situations where injustice would otherwise occur

Recruitment Methods (3 of 5)

Employment Agencies -These agencies are covered by anti-discrimination laws and are expressly prohibited from discriminating against employees in referrals or in any other manner -The difficulty is that they are businesses, and do well when they make their customers happy, so may be tempted to cater to such preferences -Employers must not request that such agencies refer only employees with particular protected class characteristic, or attempt to obtain such information about applicants

U.S. Employment Law Is a Fragmented Work in Progress

Employment Law is a patchwork of federal, state and local laws Whether and how laws apply depends on: -Whether employees work for the government or a private employer -Whether they have union representation -The size of their employer Employment law is dynamic, and changes daily

Enforceability of Arbitration Agreements (1 of 2)

Employment agreements requiring employees to arbitrate rather than sue are generally enforceable Such agreements are governed by the Federal Arbitration Act (FAA), except for transportation workers These agreements are subject to contract defenses: -Contracts are unconscionable when the process involves a "take it or leave it" offer by a more powerful party (procedurally unconscionable), and its terms are largely one-sided (substantively unconscionable)

The Concept of Employment Discrimination (3 of 6)

Employment discrimination can be defined as the limitation or denial of employment opportunity (adverse employment actions) based on or related to protected class characteristics of persons -It is not prejudice alone that subjects employers to liability, but rather the effects of bias on employment decisions -In the case of retaliation, employer liability is not limited to acts that directly affect employment; see what follows

Medical Examinations (6 of 6)

Genetic Tests (cont) -When requesting medical information for health-care providers, employers should use the EEOC "safe harbor" language asking that employees not provide genetic information Practical Considerations: To improve employee health and lower insurance costs, many employers have turned to wellness programs. These programs typically entail an extensive baseline assessment of current health status and incentives for participation. What should employers do to make sure that their wellness programs comply with the ADA and GINA?

Determining Which Employment Laws Apply (2 of 2)

Government Contracts -Federal, state, and local governments sometimes use the contracting process as leverage to get employers to implement desired workplace practices Industry and Occupation -Most employment laws apply to any industry, but some are narrowly targeted -Example: The Omnibus Transportation Employees Testing Act mandates extensive drug and alcohol testing of employees regulated the Department of Transportation

Who is an Employee? (2 of 16)

Independent Contractors -The economic realities test to distinguish between employees and independent contractors includes: 1. Who has the right to control how, when, and where the work is done? 2. Who provides the tools, materials, and the resources needed for the work to be performed? 3. Does the method of payment afford opportunity for profit or loss, depending on how well the work is managed?

Who is an Employee? (6 of 16)

Independent Contractors (cont) The common law test includes: (cont) 11. Whether the hiring party is in business 12. Whether benefits of any kind are provided to the hired party 13. The tax treatment of the hired party The common law test emphasizes right of control, while the economic realities test focuses on the market for the contractor's services

Who is an Employee? (5 of 16)

Independent Contractors (cont) The common law test includes: (cont) 6. The extent of the hiring party's right to assign additional projects to the hired party 7. The extent of the hired party's discretion over when and how long to work 8. The method of payment 9. The hired party's role in hiring and paying assistants 10. The extent to which the work is part of the regular business of the hiring party

Who is an Employee? (4 of 16)

Independent Contractors (cont) The common law test to distinguish between employees and independent contractors includes: 1. The extent of the hiring party's right to control the manner and means by which the work is done 2. The level of skill required 3. The source of necessary tools and materials 4. The location of the work 5. The duration of the work

Who is an Employee? (3 of 16)

Independent Contractors (cont) The economic realities test includes: (cont) 4. What is the duration of the working relationship? 5. Does the work require some type of special skill? 6. How integral to the business is the work that is being performed? 7. Overall, how dependent is the person performing the work on the hiring party?

Recruiting Foreign Nationals for U.S. Employment (2 of 2)

Labor Trafficking -Labor trafficking has been defined as the "recruitment, harboring, transportation, provision, or obtaining of a person" for the purpose of obtaining his or her labor or services, "through the use of force, fraud, or coercion," and that subjects the person "to involuntary servitude, peonage, debt bondage, or slavery" -The common elements in trafficking cases are recruitment wit false promises, indebtedness, isolation, dependence on the employer, and severe mistreatment

Medical Examinations (3 of 6)

Limitations on the Use of Medical Exams (cont) -The ADA does not limit the scope of medical exams following conditional offers of employment -But medical exams of current employees are limited to those that are job-related and consistent with business necessity -The results of such exams cannot be used to deny an employment opportunity to a disabled person unless that person is unable to perform the essential functions of the job, or poses a direct threat to himself or others even with reasonable accommodations

Medical Examinations (2 of 6)

Limitations on the Use of Medical Exams under the ADA -The ADA governs whether medical exams can be conducted, which types of exams can be performed, and to what uses the information gleaned can be put -Prior to making a conditional offer of employment, employers are prohibited from requesting or requiring that applicants submit to medical exams -The medical exam, if used, should be last test performed and the last information considered prior to hiring

Types of Discrimination (2 of 2)

Reasonable accommodation is required for: -Qualified disabled persons who need accommodations -Employees whose religious beliefs and practices conflict with employer requirements -In these cases, an employer discriminates by failure to reasonably accommodate Retaliation is punishing employees for seeking to assert their rights under anti-discrimination laws or assisting others in doing so

Affirmative Action (3 of 4)

The affirmative action plan must include: -Reasonable Self-Analysis -Do employment practices exclude certain groups -Reasonable Basis for Affirmative Action -Does underutilization exist? Practical Considerations: To analyze their workforces and determine whether affirmative action is needed, employers must document the protected class characteristics of their employees. How can this be accomplished in an effective and legal manner?

Affirmative Action (4 of 4)

The affirmative action plan must include: (cont) Reasonable Affirmative Actions -The plan sets goals for improvement in the utilization of women and minorities and timetables or achieving those goals, which are reasonably obtainable through good faith effort

Disparate Treatment: A Closer Look (1 of 9)

Types of Disparate Treatment Cases: Facially Discriminatory Policy or Practice -The employer admits using protected class characteristics as a basis for making employment decisions, but insists there is a good business reason for doing so -To prevail with this defense, the employer must show that the required protected class characteristic is a bona fide occupational qualification (BFOQ)

Disparate Treatment: A Closer Look (4 of 9)

Types of Disparate Treatment Cases: (cont) Mixed Motives -More than one motive can account for a decision -Where strong evidence exists of both discriminatory and lawful motives, the employer has discriminated -But this analysis is not available for age discrimination claims or retaliation claims -In such cases, plaintiffs must show that discrimination was the "but-for" cause of the act

Disparate Treatment: A Closer Look (5 of 9)

Types of Disparate Treatment Cases: (cont) Pattern or Practice -In these cases, statistical evidence shows the systematic effects of an employer's discrimination Harassment -Harassment is a form of disparate treatment because the victim is subjected to discrimination based on her sex, race, or other protected class characteristic

Disparate Treatment: A Closer Look (3 of 9)

Types of Disparate Treatment Cases: (cont) Pretext -An employee believes an opportunity was denied based on a protected class characteristic, but the employer contends the decision was based on a lawful factor other than the protected class characteristic -If the employee's allegations are true, the employer's explanation is a cover-up for a discriminatory motive

Disparate Treatment: A Closer Look (2 of 9)

Types of Disparate Treatment Cases: (cont) Reverse Discrimination -If an employer hires a woman or person of color, a white male who believes he should have received the employment opportunity sues -The employer contends the decision was made in accordance with a valid affirmative action plan and was legally permissible

Heard at the Staff Meeting

We've lined up some interns from a local college; we won't pay them, of course, but hopefully they will make a real contribution We have a firm that does background checks of job candidates; anyone with an arrest or conviction will not be hired Our employees' use of social media has gotten out of hand, so we have developed a new policy that prohibits them from airing criticisms of the company or managers online Remember the chemist we hired recently? She's been doing a great job, but may have a problem with a non-competition agreement she signed for her former employer; I told her we won't get involved

Recognizing Harassment (1 of 4)

Which Behaviors Constitute Harassment? The EEOC has defined sexual harassment as follows: -Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature...when (1) submission...is made a term of condition of employment, (2) submission or rejection is used as the basis for employment decisions, or (3) the conduct has the purpose or effect of unreasonably interfering with work performance