Special topics in business
Middle Eastern Discrimination After September 11, 2001
"Code Z" established by EEOC -Created to designate complaints of "backlash discrimination" from individuals who are perceived to be Muslim, Sikh, Arab, Middle Eastern, or South Asian
Discipline
"Just cause" disciplinary approach How is "just cause" determined? > Due process >Adequate evidence > Appropriateness of penalty Documentation assures employees of adequate feedback and helps avoid lawsuits Progressive discipline
Federal Employee Polygraph Protection Act (EPPA) provides that an employer may not:
-Directly or indirectly require, request, suggest, or cause any employee to take or submit to any lie detector test -Use, accept, refer to, or inquire about the results of any lie detector test -Discriminate against or deny employment or promotion to any employee who refuses, declines, or fails to take a lie detector test
Covenants not to compete
-Disclosure of trade secrets -Soliciting the employers employees or customers
Employees V. Independent Contractors
-Discrimination: Title VII applies to Employees, not to Independent Contractors -Employer payroll deductions >Employee - employer responsible for deductions >Independent Contractor - responsible for their own taxes, including deductions Benefits >Employee eligible to receive them but it is not a requirement >Independent Contractor has no access to the benefits
After-acquired evidence" in defense in wrongful termination suits
-Documentation of failure to hire
Genetic Tests - GINA
-Does not apply to employers who have fewer than 15 employers -Does not cover people in the military Genetic irregularities may be considered protected disabilities under the Americans with Disabilities and Vocational Rehabilitation Act
Legality of Ineligibility Testing
-Drug Testing and "Legal" Marijuana Use -Private-Sector Employers and Substance Testing -The Americans with Disabilities Act and Substance Testing
Non-complete Agreements
-Employee agrees not to disclose the employer's confidential information or enter into competition with the employer for a specified period of time and/or within a specified region -States vary widely as to whether they will enforce employee non-compete agreements -Non-competes may have "forum selection clauses" that stipulate the state's law that applies to it
Other Defenses to Employment Discrimination Claims
-Employee's evidence is not true -Employer's "bottom line" comes out correctly - Case: Connecticut v. Teal
Management tips
-Employers are always allowed to hire the best person for a job >Allowed to fire an employee for any reason as long as it is not for one of the specific reasons prohibited by law -Company policies and procedures should create a space for employees to voice any concerns and complaints -Employers should subject termination decisions to internal review -Employees should be made aware of their rights under the law regarding any protected category to which they may belong -Policies that discriminate on their face should be discarded
Employees NOT Covered by Title VII
-Employers having fewer than 15 employees -Non U.S. citizens employed outside the United States -U.S. citizens employed elsewhere, if local law specifically forbids compliance -Employees of religious institutions, associations, or corporations hired to perform work connected with carrying on religious activities -Members of Communist organizations -Native American employees living in or around Native American reservations
Recent Studies on Race Inequalities
-Employers would rather hire a white man who had served time in prison than a black man who had not -Applicants with ethnic names received fewer callbacks for jobs than the identical résumés with traditionally white names -African-Americans who leave messages in response to ads often never receive return calls, while whites almost always do -Networking within an organization and having a mentor do not give African-American men the same measurable benefits as whites -Racial stereotypes and attitudes heavily influenced the labor market -Majority of Americans say racism against blacks is widespread
Amendments to the Act
-Equal Employment Opportunity Act 1972 -Pregnancy Discrimination Act of 1978 -Civil Rights Act of 1991
Specific tactics an employer can use (affirmative action)
-Expanded outreach and recruitment to groups the employer has not generally made an effort to reach -Mentoring, management training, and development of traditionally excluded groups -Hiring, training, and other attempts to bring into the workplace groups that have traditionally been left out of the employment process
Management Tips (2)
-Federal contractors must follow the Guidelines on Discrimination Because of Religion or National Origin -Before instituting a policy, consider the implications of both Title VII and IRCA -Recognize the concerns of Middle Eastern employees in the post-September 11 era
Exclusions from At-Will Employment
-Government employment -Employees under a collective bargaining agreement -Employees who have an individual contract with their employer
Applies to promote equal opportunity in the fundamentals of employment relationship in Title VII
-Hiring/firing/promotion Training -Discipline -Compensation and Benefits -Classification -Or "other terms or conditions of employment"
Background of Racial Discrimination in the United States
-History and its present-day effects account for much of the race discrimination seen today -Slavery lasted for over 200 years until after the Civil War ended in 1865 -Jim Crow laws were created after the Reconstruction >Legalized and codified racial discrimination > Slave codes were simply renamed "Black Codes" and used virtually as if slavery had never ended
Undocumented Worker
-IRCA made it unlawful for employers to hire, recruit, or refer for a fee to non-citizens who are not authorized to work -Employers are required to verify all newly hired employees using a Form I-9 -Department of Homeland Security ruled that employers must terminate all "no-match" workers >"No-match" workers - Workers who used false social security numbers
Management Tips
-Important to evaluate and properly classify workers; mistakes are costly -Hiring an independent contractor is not a safe harbor from liability -Staffing firms' contracts must be carefully negotiated to clearly spell-out responsibilities and covered risks -Review documentation from the employees perspective -Draft balanced non-competes catering to business, employee, and public interests
Costs of Misclassification
-Inaccurate classification of workers is violations of: >International Revenue Service (IRS) laws >The National Labor Relations Act >The Fair Labor Standards Act >Social Security Act >State worker's compensation and unemployment compensation laws -Willful misclassification subject to severe penalties -The fines for each violation are substantial
What constitutes a valid non-compete?
-It protects a legitimate business interest*, and is ancillary to a legitimate business relationship -It provides a benefit to both, employee and employer -It is "reasonable" in scope and duration and is not contrary to the public interest
Definitions of Employee
-Legislative definitions are circular, unhelpful to classification process -Courts use tests to analyze workers in context >Common-law agency test >Determines whether the employer has the right to control -IRS 20-factor analysis >Analytical tool and not a legal test -Economic realities test > Determine whether a worker is economically dependent on the business or is in business for himself or herself > Courts look at the degree of control exerted by the alleged employer
Management Tips (1)
-Only individuals of an origin can do the specific job based on the BFOQ -Employees can file national origin discrimination claims even if they have been simply perceived to be of a particular origin -English fluency may be required but one is not allowed to discriminate because of an accent -Customer, client, or co-worker preference, comfort, or discomfort cannot be stated as the source of BFOQ
Employment Relationship?
-Payroll deduction -Benefits -Employer discrimination -Contractual remedies -Vicarious liability ( Ee. v. Independent Contractor)
Independent contractor
-Person who contracts with a principle to perform a task according to his or hers own methods -The principle does not have right to exercise control over the physical details of the work
who must comply?
-Private employers with 15 or more employees -Unions -Joint labor and management committees making admission, referral, training, and other decisions -Employment agencies and other similar hiring entities making referrals for employment -Federal, state, and local governments
Equal Employment Opportunity Commission (EEOC)
-Prohibits discrimination based on age, disability, and genetic information and family medical history -Includes discrimination based on being transgender to gender discrimination TITLE VII
Title VII of the Civil Rights Act of 1964 is the employment section of the act
-Provides new rights to women and minorities -Prohibits dismissal on the basis of discrimination -Prohibits employers from employing or promoting based on bias -Prohibits discrimination on the basis of race, color, gender, religion, and national origin State and local governments later passed laws paralleling Title VII and the other protective legislation
Intro
-Race is the first of the prohibited categories in Title VII -Southern Poverty Law Center issued a report in February 2011 showing that the number of hate groups in the United States has risen to over 1,000 -EEOC's 2016 statistics still show that race discrimination claims account for 35.3 percent of total claims filed
Benefits of drug testing programs
-Reduce workplace injury or to provide a safer working environment -Predict employee performance or deter poor performance -Reduce the employer's financial responsibility to the worker's compensation system
E.O. 11246 Provisions (1)
-Require federal government contractors to remedy inadequate representation of women and minorities in their workplace -Enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the Employment Standards Administration Office of the U.S. Department of Labor -All contractors/employers who contract with the federal government must abide by the executive order's nondiscrimination provision -Increased compliance requirements for those who have contracts of $10,000 or more
Background of Racial Discrimination in the United States Continued
-Segregated public schools were outlawed by the U.S. Supreme Court in Brown v. Board of Education in 1954 -Civil Rights Acts of 1964 -Voting Rights Act of 1965
Why use Independent Contractors?
-Specialized skills or Intermittent needs -Seasonality -Cost factors >No overtime >Avoids work-related expenses (e.g., insurance, tools, etc) >Avoids Overhead - pay for production, not time >Liability of contractor for mistakes
Preemployment testing
-Tests to find the best individual for a position -Tests to ensure that the individual is free from problems that would prevent her or him from performing the positions functions
Independent Contractors: Safe Harbor (IRS)
-The business must have never treated the worker as an employee for the purposes of employment taxes for any period -All federal tax returns with respect to this worker were filed consistent with the worker being an independent contractor -The company has treated all those in positions substantially similar to that of this worker as independent contractors -The company has a reasonable basis for treating the worker as an independent contractor
Law of Agency
-Traditional law of master and servant -Employee acts on behalf of the employer as its agent -Employee acts only as authorized by the employer -Employer is obligated to exercise good faith in the relationship and ensure that no harm comes to the employee during the relationship
Employment Research Findings (2)
-U.S. Department of Labor study: women and minorities have made more progress breaking through the glass ceiling at smaller companies -Federal Glass Ceiling Commission study: >White women made up close to half the workforce, but held only five percent of the senior-level jobs in corporations >African-Americans and other minorities account for less than three percent of top jobs
Introduction
-United States is considered a melting pot of different cultures -National origin was included in Title VII's list of protected classes >Ensures that that employers did not make employment decisions based on employees' or applicants' country of origin
Employment Research Findings (1)
-Women and minorities still lag in terms of pay, jobs, and promotions -Research shows that people who hire tend to notice value more quickly in someone who looks like them -Almost 90 percent of jobs are filled through word-of-mouth, resulting in fewer minorities and women being able to take advantage of those networks
Employment Discrimination Remedies
-back pay -front pay -reinstatement -seniority -retroactive seniority -injunctive relief -compensatory damages -punitive damages -attorney fees -medical costs
screens the charge to see whether it is one that is appropriate for mediation. If it is appropriate for mediation, the EEOC will offer that option to the parties. In this case, each side has __________ days to respond to the offer to mediate.
10
Voluntary Affirmative Action (2)
Based on case 2, Johnson v. Transportation Agency, plans had to be carefully designed so that they: -Did not unnecessarily trammel rights of majority workers -Did not set aside positions for women or minorities as quotas to be met -Were temporary -Did not unsettle legitimate, firmly rooted expectation of employees -Caused minimal intrusion into the legitimate, settled expectations of other employees
Performance appraisal (PAs):
Periodic assessment of an employee's performance The purpose of performance appraisals Identify performance characteristics employer hopes employee will accentuate Discourage performance characteristics not in keeping with the organization's objectives Potential for discriminatory effect depends on the manner in which the appraisal is conducted
Sal, a professor of criminal justice, gets an offer to move from Philadelphia to Seattle for a new position as a professor. After quitting his job, Sal sells his home and moves to Seattle and upon getting ready to sign his employment contract, Sal is told the job went to another person. If Sal decides to sue, he would likely have a valid claim under
Promissory estoppel
Corporate management compliance evaluations: (affirmative action plans)
Designed to determine whether employees are encountering artificial barriers to advancement to mid- and senior-level corporate management >OFCCP conducts an Equal Opportunity Survey every year
Catherine, a resident of California, has been working for a company for the past five years. Her superiors have always showered her with praise for her excellent work, but she has noticed that each time a performance appraisal is conducted, she is overlooked. This year, the appraisal results were announced on January 26. She was again overlooked. She approached the Equal Employment Opportunity Commission on November 29, to file a discrimination complaint against her company. The Equal Employment Opportunity Commission is not in a position to accept her petition because she
Did not file the complaint within 180 days of the event
Guidelines on Discrimination Because of Religion or National Origin:
Federal guidelines that apply only to federal contractors or agencies and that impose on these employers an affirmative duty to prevent discrimination -Applies to federal agencies or employers who enter into contracts with a government agency -Ensure that individuals are hired and retained without regard to their religion or national origin Provisions include the following ethnic groups: Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Greeks, and Slavs Excluded because of coverage elsewhere: Blacks, Spanish-surnamed Americans, Asians, and Native Americans
Recruitment
First step in the evolution of the employment relationship Federal statutory regulation of recruitment - Title VII of the Civil Rights Act of 1964 - Age Discrimination in Employment Act of 1967 - Immigration Reform and Control Act of 1986 - Vocational Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 Many state employment laws aim to expand federal statues or closely mirror Title VII legislation Common law recruitment violations -Fraud -Misrepresentation (claims regarding terms of job offer, position available, salary paid) -Material facts (knowing something would change if they knew)
English Fluency as a qualification, and Language Restrictions
Fluency requirements, "English-only" policies, and accent rules have become increasingly relevant in the workplace -May be based on hostile work environment, disparate treatment, or disparate impact >Case: Pachero v. New York Presbyterian Hospital EEOC has pointed out that the degree of fluency required varies from job to job -Blanket fluency requirements applying to all jobs might not be legal
Realities about performance evaluations
Employers might be liable for giving a negative reference even when true Employers need not lower standards or qualifications to accommodate employee's or applicant's needs Performance appraisal systems can still rely on objective measures Performance incentive systems recognize outstanding performance and leadership Legal challenges are found mostly in the areas of implementation, monitoring, and accountability
Citizenship and the Immigration Reform Control Act (2)
Employers not subject to Title VII's prohibitions because of small size may still be covered by IRCA's anti-discrimination provisions -Employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin -Employers with 4 or more employees may not discriminate on the basis of citizenship
The Civil Rights Act of 1964 applies to all but the following:
Independent contractors
Availability: (affirmative actions)
Minorities and women in a geographic area who are qualified for a particular job under consideration Factors used to determine availability: -The percentage of minorities or women with requisite skills in the reasonable recruitment area -The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization
Four-fifths rule Legal Implications of Performance Appraisal Systems
Minority group must perform at least 80 percent (four-fifths) as well as the majority group under a screening device or the test is shown to have a disparate impact on the minority group
Back pay
Money awarded for time employee was not working because of illegal discrimination
Compensatory damages
Money damages given to a party to compensate for direct losses due to an injury suffered
Punitive damages
Money over and above compensatory damages, imposed by a court to punish employer or deter future acts
Discrimination today
Most of the cases of discrimination for which employers are found liable today do not stem from the employer being overtly discriminatory or intentionally malicious stereotypes: Media, family, friends
Affirmative action plan:
Must be developed according to the rules set forth in the Code of Federal Regulations part 60-2
Ch 7
National Origin discrimination
EEOC's National Origin Guidance
National origin discrimination is prohibited based on: -Employment Decisions -Harassment -Accent discrimination -English fluency and English-only rules Coverage of foreign nationals -Discrimination against individuals employed in the United States is prohibited regardless of citizenship
Regulatory Overview
National origin discrimination protection offered by Title VII: It is unlawful for an employer to limit, segregate, or classify employees -Employer should not discriminate in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment Employee may successfully claim discrimination on the basis of national origin if it is shown that: -She or he is a member of a protected class -She or he was qualified for the position for which she or he applied or in which she or he was employed -Employer made an employment decision against this employee or applicant -Position was filled by someone who was not a member of the protected class
Member of the Protected Class
National origin encompasses: -Employee's place of birth -Ethnic characteristics or origins -Physical, linguistic, or cultural traits closely associated with a national origin group No protection based on status as aliens -Law provides protection against discrimination based only on country of origin, not on country of citizenship
Undocumented Workers (2)
Obama administration focused on Employers: -Reviewed the "no-match" rule in 2009 -Social Security Administration issues notices to employers with employees whose Social Security numbers did not "match" the SSA's records -Immigration and Customs Enforcement (ICE) sends Notice of Inspection to employers IRCA -Employers subjected to random compliance inspection under the General Administrative Plan
Compelled self-publication
Occurs when an ex-employee is forced to repeat the reason for her or his termination -gives the ex-employee the basis for a claim for defamation
Gordon filed a claim with the EEOC. The EEOC found that there was no reasonable cause for the employee's discrimination complaint. At this point the EEOC will send Gordon a(n)
Right-to-sue letter
The defendant's request for the court to rule on the plaintiff's case based on the documents submitted, alleging there are no triable issues of fact to be decided, is known as a motion for
Summary judgement
There are three main pre-Title VII laws collectively known as:
The Reconstruction Civil Rights Acts
Alpha Co., which carries out its operations in Alabama, has 200 full-time employees. It plans to close one of its locations in 30 days, which will result in the loss of 50 jobs if it cannot secure a low-interest loan. During the 30-day period, Alpha did not apply for any loan. Which of the following situations would not exempt Alpha Co. from the notice requirement of laying off its employees?
The company is not acting in accordance with the covenant of good faith and fair dealing.
Valuing Diversity/Multiculturalism
United States Department of Labor's Workforce 2000 study was conducted by Hudson Institute Report -Found that an estimated 85% of the net growth in the workforce will be comprised of women and non-Europeans
Letter vs memo
letter- outside memo-inside
Penalties for Noncompliance
What is important to OFCCP? -The nature and extent of the contractor's good-faith affirmative action activities -The appropriateness of those activities to the problems the contractor has identified in the workplace -The Department of Labor/OFCCP or the appropriate contracting agency can impose a number of penalties on the employer, including debarment (prohibits a federal contractor from further participation in government contracts) -The secretary of labor must make reasonable efforts to secure compliance by conference, conciliation, mediation, and persuasion before requesting the U.S. Attorney General to act or before canceling or surrendering a contract
706 agency
What is the name of the state agency that handles EEOC claims under a work-sharing agreement with the Equal Employment Opportunity Commission?
Lauren hired Jabar to work for her law firm. The two did not sign a contract. This is an example of
an at-will relationship
memrandum
attach file in email analysis use factual background.. be descriptive ex header "such such employee johnson engaged in unwanted behavior" on this day... Johnson went against company policy.. purpose, factual background, analysis, and three sub headers don't do proper investigation procedure (this is too broad) Descriptive headers are important summaries are always more persuasive then statistics
Ban the box
policy that asks or mandates that potential employers eliminate from initial hiring applications the check box that asks individuals if they have a criminal record
Statute of limitations
relatively brief -Nonfederal government employees have 180 days and federal employees have 45 days to file a claim after the discriminatory event
Justification for Title VII
societal approach to certain groups which negatively impacted them in the workplace, housing, education, voting, public accommodations -Protecting groups from discrimination did not afford them special privileges, but was necessary in order to attempt to provide them with the same opportunities to anyone else
For misrepresentation
the statement does not actually need to be a false statement, it need merely to create a false impression -where a statement creates a false impression
Facially neutral policy
workplace policy that applies equally to all appropriate employees
EEOC Investigation
•Determines reasonable cause. -No reasonable cause found. (Employee is given a dismissal and notice of rights, known as a "right-to-sue" letter. Employee can file suit against employer in federal court within 90 days.) -Reasonable cause found. (Parties meet with an EEO investigator. EEOC can file suit in federal court if the claim is not settled.)
Definition of Employer
A person who employs others to do work -Issues may arise when: > An entity claims to be a private membership club or a multinational company
Statutory Definitions of Employer
- Civil Rights act of 1866 - Title VII of the Civil Rights Act of 1964 - Title VI of the CIvil Rights Act of 1964 - Age discrimination in Employment Act of 1967 -Title I if Americans with Disabilities Act -Fair Labor Standards Act of 1938 -Rehabilitation Act of 1973
Freedom to contract is crucial to freedom of market
-An employee may choose to work or not to work for a given employer -An employer may choose to hire or not to hire a given applicant -Congress passed laws to resolve the imbalance of power between an employer and an employee >Set minimum wage > Anti-discriminatory laws based on race and gender
Interplay between states and the federal court system
-Congress can pass a law to change a Court decision if it believes the Court's interpretation is not in keeping with the law's intended purpose (legislator can rewrite laws if they do not like how it was interperted) -U.S. Supreme Court decisions are final
non-complete agreement
An agreement between a firm and an employee, by which the employee promises not to open a competing business within a certain area, after leaving the firm. (would not include an amount of compensation a person can recieve)
Which of the following is not true regarding the regulation of employment?
As an employer, you must have a valid and articulable reason to fire someone
Make-whole relief
Attempt to put the claimant in position he or she would have been been in had there been no discrimination
Law reporter
Book in which court opinions are placed
In accordance with the language of the Civil Rights Act of 1964, what is the threshold number of employees that trigger the act?
15
Economist view generally fails when
2 equally qualified applicants apply
Employment at will
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise. (Assuming no violation of a contract)
Non-compete agreements general rule
Common law generally prohibits the restriction if it is more broad than necessary to protect the employer's legitimate interests or if the employer's need is outweighed by the hardship to the employee and likely injury to the public
Contingent Workers and Joint Liability
Contingent or temporary workers: >Employment is temporary, is sporadic, or differs from the norm of a full-time employment >Often supplied by staffing agency Joint employers and staffing firms: >Staffing firms or client of the firm can be considered to be employers >Worker is paid and training is provided Provide workers' compensation coverage Joint and several liability- staffing firm and client share liability as employers > Workers may collect compensatory damages from either one if wrong is proven
Front pay
Equitable remedy of money awarded to claimant when reinstatement is not possible or feasible
Whenever U.S. Supreme court makes a decision
Everyone has to follow it
Employment Discrimination
Federal law prohibits employment discrimination on the basis of race, color, gender, religion, national origin, age, disability, and genetic information Generally two types of discrimination claims: 1. Disparate treatment 2. Disparate impact
ShopKo Inc. employs individuals all across the United States. When ShopKo Inc. hires a new regional sales manager, their contract has a __________ clause that stipulates which state law will apply if there are disputes that arise under the contract.
Forum section
Exhaustion of Administrative Remedies
Going through the EEOC administrative procedure before being permitted to seek judicial review of an agency decision
The failure to categorize employees properly may result in
Large Financial Penalties
Public policy
Legal concept intended to ensure that no individual lawfully does that which may injure the public or damage the public good
Vicarious Liability
Legal doctrine under which a party can be held liable for the wrongful actions of another party.
Agency Law
Master (Principle) and Servant (Agent) relationship - one person acts on behalf of another Employment Agency Relationship -Agent duty is to act only as authorized -When agent acts outside of authrority Good Faith -Use care to prevent harm to one another
Screening device
Mechanism used to separate applicants from the general pool of candidates
Four-fifths rule
Minority group must perform at least 80 percent (four-fifths) as well as the majority group under a screening device - If the requirement is not met, a presumption arises that the screening device has a disparate impact on the minority group and must be shown to serve a legitimate business necessity - Subjective or objective criteria are a concern
Whistle-blowing
Occurs when an employee reports an employer's wrongdoing Protections: >Federal Whistleblower Statute >Whistleblowers Protection Act >State protection
Constructive discharge
Occurs when the employee is given no reasonable alternative but to end the employment relationship -Considered an involuntary act on the part of the employee -Restricts employers' actions of wrongful termination Paloni v. City of Albuquerque Police Department (no) Nassar v. Univ. of Texas Southwestern Medical Center at Dallas (yes)
Stare Decisis (stand by a decision)
Process of a court using prior decisions to determine decision for case before it -Decision may be a concurring or a dissenting problem States have court system parallel to the federal court system Trial court-> intermediate court of appeals ->state supreme court
Retaliation
Provisions allowing employees to file separate claims for negative consequences experienced from their employers for pursuing their lawful rights
Title I of the Americans with Disabilities Act of 1990
Purpose- Cannot discriminate in. employment against individuals with disabilities who cannot perform the essential functions of the job with or without reasonable accommodations Definition of Employer- The ADA applies to all employers engaged in interstate commerce with 15 or more workers, including state and local government employers, employment agencies, labor unions, and join labor
Title VII of the Civil Rights Act of 1964
Purpose- Prohibits discrimination in employment based on specified protected classes Definition of Employer- Applies to all firms or their agents engaged in an industry affecting commerce that employ 15 or more employees for each working day in each of 20 or more weeks in the current preceding calendar year
Civil Rights Act of 1964
Purpose- Regulates the actions of all individuals and entities when entering into a contract to employ someone else (prohibits discrimination in housing, education, employment, public accommodations, and the receipt or federal funds) Definition of Employer- No requirement for a minimum number of employees in order to qualify as an employer under the CRA of 1866
Other Restrictions on At-Will Doctrine
The Worker Adjustment and Retraining Notification Act (WARN) -Requires that employers with over 100 employees must give 60 days' advance notice of a plant closing or mass layoff to affected employees Exceptions: > Faltering company exception > Sudden, dramatic, unexpected business changes > Certain natural calamities Wrongful Discharge Based on Other Tort Liability > Tort of intentional and outrageous conduct > Tort claim for emotional distress > Tort action of defamation > Wrongful invasion of privacy
Promissory Estoppel Exception: Prima Facie Case; other statutes of note
The employer made a promise> On which the worker reasonably replied> To the employee detriment Similar to the implied contract claim except that the promise, implied or expressed, does not rise to the level of a contract -Other statutory exceptions to employment at-will >Occupational Safety and Health Act >Fair Labor Standards Act >Pregnancy Discrimination Act
Case citation
The line after the case name in the law reporter that has several numbers and a few letters
Principal
The party for whom the agent acts and from whom the agent derives authority to act
Public Policy Exception
The public-policy exception is an exception to the employment-at-will doctrine. Under this exception, an employer can not terminate an employee for reasons that would violate public-policy interest or statute. (public policy, whistleblowing)
Non-competes and Trade Secrets
Trade secrets - Information that is not publicly available >May include confidential information, customer preferences, marketing strategies, etc. Doctrine of Inevitable Disclosure >Employers are protected against disclosure of trade secrets >Court can prohibit a former employee from working for a competitor
Under the theory of __________, if an employee causes harm to a third party while in the course of employment, the employer is liable.
Vicarious Liability
forum-selection clause
a contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract
The inevitable disclosure theory essentially states that
a court may prohibit a former employee from working for an employer's competitor if the employer can show that it is certain that the former employee will reveal a trade secret by virtue of her or his position.
Affirmative Defense
a defense whereby the defendant offers new evidence to avoid judgement
Agent
a person who acts or does business for another
burden of proof
the obligation to present evidence to support one's claim
Covenant
A solemn agreement between human beings or between God and a human being in which mutual commitments are made.
The common law agency test
A test used to determine employee status; though it considers several factors, the most critical is whether the employer has the right or ability to control the work
Employment Discrimination Concepts: Disparate Impact
Disparate impact: Discriminatory effect of a facially neutral policy on a Title VII group -Facially neutral policy: Workplace policy that applies equally to all appropriate employees Case: Griggs v. Duke Power Company
Employment Discrimination Concepts: Disparate Treatment
Disparate treatment: Treating similarly situated employee differently because of prohibited Title VII or other employment discrimination law factors -Considered intentional discrimination
Employment Discrimination Concepts, Disparate Treatment: Defenses
Employer's defense -Legitimate, Nondiscriminatory Reason Defense - Employee's counter: Employee can counter with evidence that the employer's legitimate, non-discriminatory reason was a mere pretext for the employer to discriminate The Bona Fide Occupational Qualification Defense: Permissible discrimination if legally necessary for employer's particular business Legalized discrimination, narrowly construed by the courts > Case: Wilson v. Southwest Airlines Company
Accommodation
Employer's duty in Title VII religious discrimination claims and under Americans With Disabilities Act (ADA) to accommodate workplace conflicts -Should not cause undue hardship to the employer -Extent of duty varies between religious and disability accommodations
At-Will Employment
Employment relationship where there is no contractual obligation to remain in the relationship -Employee could work for the employer as long as he or she wished and leave when he or she no longer wished to work -Either party may terminate the relationship Employer cannot terminate a worker based on race, gender, religion, national origin, age, or disability
If a worker is misclassified as an independent contractor instead of an employee, the __________ will likely hand out harsh punishments.
IRS
Implied Covenant of Good Faith and Fair Dealing Exception
Implied contractual obligation to act in good faith in the fulfillment of each party's reasonable contractual expectations The court examines the parties' actions to ascertain whether termination demonstrated bad faith Case: Guz v. Bechtel National, Inc.
Helen was hired by Imprint magazine to write articles on an "as needed" basis on the changing lifestyle of New York's women. Imprint has given Helen a 1099 IRS Form. Helen is a(n) ______
Independent Contractor
Tort Damages
monetary damages that are sought from the offending party
Contingent worker
one who has no explicit or implicit contract for long-term employment (Includes independent contractors)
Retroactive seniority
Seniority that dates back to the time the claimant was treated illegally
Underrepresentation/Underutilization:
Significantly fewer minorities or women in the workplace than relevant statistics indicate are available or their qualifications indicate they should be working at better jobs
Qualification/BFOQs
-Claimant must show that he or she meets the job's requirements -Employer may claim that national origin is actually a bona fide occupational qualification for a job (BFOQ) -Case: Espinoza v. Farah Mfg. Co.
There are no specific requirements as to what form an affirmative action plan must take (judicial affirmative action)
-Case: Regents of the University of California v. Bakke -Case: Local 28, Sheet Metal Workers v. EEOC -Scenario 1
Employment Discrimination Concepts, Disparate Treatment: Prima Facie Case
1. Employee belongs to a class protected under Title VII 2. Employee applied for and was qualified for a job which the employer was seeking applicants 3. Employee was rejected and, after the rejection, the position remained open 4. Employer continued to seek applicants with the rejected applicants qualifications
Classification of workers (Two types)
1. Law of agency 2. Independent contractors
IRS Safe Habror
1. The business has never treated the worker as an ee for any period 2. All federal tax returns were filed consistently with worker being independent contractor 3. Company treated all those in positions substantially similar as independent contractor 4. Company has a reasonable basis for the classification
Promissory Estoppel
A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise.
Jims Crow Laws
A system of racial segregation that was enforced through law, the social system, and violence
Adverse Employment Action and Dissimilar Treatment
Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee Includes: -Demotion -Termination -Removal of privileges afforded to other employees
Application of Regulation to Recruitment Practices
Advertisements >Scenario 1 -Word-of-mouth recruiting >Case: EEOC v. Consolidated Service System -Promoting from within -Venue recruiting -Walk-in applicants -Neutral solicitation
CH 5
Affirmative action
Judicial affirmative action:
Affirmative action ordered by a court as a remedy for discrimination found by the court to have occurred, rather than arising from Executive Order 11246
Polygraphs prohibited
At least 27 states and the District of Columbia have statutes prohibiting or restricting the use of polygraphs in making employment decisions -Where a state law is more restrictive than the federal act, the state statute governs
Marlton Hospital only hires those who can pick up and hold 50 pounds or more for their emergency room and operating room techs because they must be able to help move heavy objects, including bodies. Even though the overwhelming majority of those who apply are females, this provision is still going to be considered
Bona fide occupational qualification
Per curiam
Brief determination made by an appellate court, not issued by a particular judge
Which of the following landmark cases, decided in 1954, outlawed segregation in schools?
Brown v. Topeka Board of Education
Gillian applied to be a firefighter and was subjected to the same tests that all applicants were given. One particular test that Gillian failed was being able to carry a 50-pound firehose 25 yards. If a group of females sued, the fire department could claim the requirement was a(n)
Business necessity
Prima Facie Case
Cause of action: Right provided by law for a party to sue for remedies when certain legal rights are violated Prima facie case: Presentation of evidence that fits each requirement of a cause of action -Establishes plaintiff's claim to a cause of action -Requires defendant to establish all the elements of the claim(s)
Reverse discrimination:
Claim brought by a majority member who feels adversely affected by the use of an employer's affirmative action plan mistakenly considered as the flip side of affirmative action Reverse discrimination accounts for only about 3 percent of the charges filed with the EEOC > case: Ricci vs. DeStefano, New Haven, Connecticut
Filing Claims under Title VII
Claimant/charging party: The person who brings an action alleging violation of Title VII Respondent/responding party: Person alleged to have violated Title VII, usually the employer EEOC Investigator: Employee of EEOC who reviews Title VII complaints for merit Record keeping and reporting requirements: Title VII requires that certain documents must be maintained and periodically reported to the EEOC
National Origin-based Harassment
Claims have been on a sharp increase Familiar prima facie case elements > Claims are only actionable if the harassment was so severe or pervasive that the workplace was found to be hostile or abusive Common incidents - Ethnic slurs, workplace graffiti, other offenses based on presumed employee traits Key concern is whether a reasonable person would find the conduct offensive and/or hostile
The Internal Revenue Service 20-factor analysis test is commonly used by courts to
Classify employees and independent contractors
Job group analysis: (affirmative actions plans)
Combines job titles with similar content, wage rates, and opportunities
Affirmative Action and Veterans
Jobs for Veterans Act of 2002 Federal contractors must take affirmative action to employ and advance in employment qualified covered veterans
De novo review
Complete new look at claim by the reviewing court, via trial of case >EEOC's litigation success rate is 90%
Implied contract
Contract that is not expressed but is created by other words or conduct of the parties involved -Courts have found contracts implied from off-hand statements made by employers during preemployment interviews Melott v. ACC Operations, Inc.
OFCCP audits: (affirmative actions plans)
Contractors must show that they have made good-faith efforts to remove any identified barriers to equal employment opportunity, expand employment opportunities, and produce measurable results
Judicial Review
Court review of EEOC's decision in federal court
Individual privacy rights
Courts do a balancing test to determine the legality of ineligibility testing to protect individual employee rights
English Fluency as a qualification, and Language Restrictions (2)
Courts have allowed restrictions that were based on sound business interests -Closely examine employment decisions based on accent > scenario 1 -English fluency is required for supervisory control of the workplace Case: Garcia v. Spun Steak
Motion for summary judgment
Defendant's request for the court to rule on the plaintiff's case based on the documents submitted, alleging there are no triable issues of fact to be decided
Business necessity
Defense to a disparate impact case based on the employer's need for the policy as a legitimate requirement for the job
Drug and alcohol tests
Drug-Free Workplace Act of 1988 Authorized the drug testing of federal employees under certain circumstances State laws also govern substance abuse testing Case: National Treasury Employees Union v. Von Raab
Undocumented Workers (3)
EEOC -Workers' undocumented status does not justify workplace discrimination -Employers' liability for monetary remedies promotes the goal of deterring unlawful discrimination -Case: Hoffman Plastic Compounds Inc. v. NLRB Fair Labor Standards Act -Protects unauthorized workers from abuse
Balancing the Interests in the Testing Debate
Employee's privacy rights and protections against incrimination -> Employer's interest in securing a problem-free or substance-free workplace (Balancing interests in the testing debate)
Reference checks
Employers may be held liable for negligent misrepresentation based on misleading statements made in employment references
Voluntary Affirmative Action (1)
Employers or unions can adopt an affirmative action plan on their own, compelled by neither the E.O. nor the court Proactive measure to avoid future discrimination claims > scenario 2
Which of the following acts further strengthened Title VII?
Equal Employment Opportunity Act
Validation
Evidence that shows that a test evaluates what it says it evaluates Strategies to validate tests: -Criterion-related validation -Content validation -Construct validity
Cases of disparate impact discrimination are often associated with a
Facially neutral policy
Non-compete agreements
Regulated state by state -Sometimes prohibited -Certain professions exempted -Ex. Hawaii bars high tech companies from requiring their employees to enter into non-compete agreements
Logan wins his discrimination lawsuit he filed against his previous employer. He is not however able to be reinstated to the job he was fired from. In this instance, the Court may award:
Front pay
When the courts use the economic realities test to determine whether a worker qualifies as an employee, which of the following is not used?
How much in taxes the worker pays
Precedent
How similar cases have been decided in the past.
Becky has been working really hard for Dunham Co. She puts in extra hours on the weekends and has the highest sales quotas of all the workers. Her boss tells her that she will always have a job at Dunham Co. However, three months later she is fired. This might be an example of a(n) __________ to the at-will rule.
Implied contract exception
The Changing Workforce
In 2015, there were 26.3 million foreign-born workers in the U.S. workforce >16.7 percent of the total labor force The median weekly earnings of foreign-born full-time workers were significantly less than for non-foreign-born workers Complaints to the EEOC based on alleged national origin discrimination have been on the rise since 1997
Job analysis data
Information about nature of work and the knowledge, skills, and abilities required to perform the work
Legality of Eligibility Testing
Integrity and Personality Tests -Psychological tests are used by 40% of Fortune 100 companies -Conscientiousness has a strong correlation to on-the-job behavior -Basic intelligence testing is one of the best predictors of job performance across all jobs Physical ability tests Medical tests Portions of state constitutions, state statutes, and local laws establish private-sector requirements for workplace testing Drug and Alcohol Tests -Cost of substance abuse in the workplace in the form of lost productivity is approximately $276 billion per year -500 million lost workdays each year because of alcoholism Costs of drug testing programs can run anywhere from $10 to $80 per employee
What Is Affirmative Action?
Intentional inclusion of women and minorities in the workplace based on a finding of their previous exclusion Individuals with disabilities and veterans are also a part of affirmative action
Statutory Bias
It is unlawful employment practice for an employer to -fail or refuse to hire or discharge any individual to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of an individuals race, color -To limit, segregate, or classify employees or applicants for employment any which way would deprive an individual employment oppostunities
What gets employers in trouble
Its usually not big things like calling those of other groups with derogatory names it is usually a compilation of many smaller things, often without even being aware of it which when analyzed, amount to a diff experience for those not in the "majority" group
Middle Eastern Discrimination After September 11, 2001 (2)
Key discrimination issues -Different treatment because of religious attire -Ethnic harassment, which may unfairly relate to security concerns -More stringent security checks or other pre-employment requirements Effective prevention - Sensitivity to employees' concerns about possible instances of ethnic harassment
Additional Legal Resources
Law Libraries -Found everywhere from private law firms to public courthouses -Can contain only a few necessary legal resources or vast ones The Internet -Includes legal databases for public consumption
Alternate Basis for National Origin or Citizenship Discrimination: Section 1981
Law applies to identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics Section 1981 - Relates to discrimination because of ethnic characteristics or race -St. Francis College v. Al-Khazraji -Later cases: Narrow interpretation
Valuing diversity:
Learning to accept and appreciate those who are different from the majority and value their contributions to the workplace
Court opinions from cases that have already been decided that are used to determine similar cases later is known as:
Legal precedent
Polygraph
Lie-detecting device that measures biological reactions in individuals when questioned A polygraph measures: -Rate and depth of respiration -Cardiovascular activity -Perspiration Accuracy rates range from 50 to 90 percent
Lilly Ledbetter Fair Pay Act
Limitations period resets with every discriminatory paycheck
EEOC's Revised Race/National Origin Guidance
New forms of discrimination are emerging as workforce demographics evolve Issue of race discrimination in America is multidimensional -EEOC receives race and color discrimination charges alleging multiple or intersecting prohibited bases such as age, disability, gender, national origin, and religion -case: Alonzo v. Chase Manhattan Bank, N.A.
Present-day Race Issues
New racism - Idea that whites think everything is fair for everyone, so nothing need be done to ensure equal opportunity anymore Study of intentional workplace discrimination released by Alfred and Ruth Blumrosen in 2002 -15% of African Americans experience intentional workplace discrimination -Eastman Kodak Co. - proactive pay raises
Citizenship and the Immigration Reform Control Act (1)
Non-US citizens are often restricted from access to certain government or other positions by statute -Political function" exception -Case: Espinoza v. Farah Manufacturing Company Immigration Reform and Control Act (IRCA) -Unlawful to knowingly hire, recruit, or refer aliens not authorized to work in the United States
Respondent
One against whom a case is appealed at the Supreme Court
Defendant
One against whom a case is brought
Appellee
One against whom an appeal is brought
Petitioner
One who appeals a case to the Supreme Court
Plaintiff
One who brings a civil action in court
Appellant
One who brings an appeal
Is Regulation Necessary?
Opponent View -Regulation of discrimination and other areas of employment relationship is necessary -Human beings do not always act rationally -Economic forces do not offer absolute protection from employment discrimination Proponent View -Market will work to encourage employers' rational, non-biased behavior -Decisions based on race and gender are inefficient -Market imperfections: biased firms can remain competitive while discriminating Economist view Rational individuals interested in profit maximization will never hesitate to hire the most qualified applicants, regardless of their race
Retaliatory Discharge: Prima Facie Case
Participating in a protected activity> An adverse employment action> Casual connection between the protected activity and the adverse action -Burlington Northern & Santa Fe Railway Co. v. White
Which of the following individuals is most likely protected under Title VII?
Paul, a person of Mexican descent, is told he will not be hired by a soap manufacturing company
Placement goal: (affirmative actions plans)
Percentage of women and/or minorities to be hired to correct underrepresentation, based on availability in the geographic area -Quotas are expressly forbidden -Action-oriented programs must be more than the contractor's business as usual
Age Discrimination in Employment Act 1967
Purpose- law that prohibits discrimination of employees 40 years and up. Definition of employer- Applies to all entities or their agents that employ 20 or more employees on each working day for 20 or more weeks during the current and preceding calendar year
Title VI of the civil rights act of 1964
Purpose- no person b/c of race, color, or national origin shall be excluded from participation nor denied benefits, or otherwise subject to discrimination if program receives federal funds. Definition of Employer- Any government agency that receives federal funding
What was the truly motivating and driving force behind passage of the Civil Rights Act of 1964?
Race
Ch 6
Race and color discrimination
Jill is a marketing manager for Beta Co., located in a state recognizing at-will employment as well as its exceptions. Jill reported one of her bosses to the EEOC, claiming she was sexually harassed. Jill was fired the next day. Based on these facts Jill most likely has a claim for wrongful discharge based on the __________ exception.
Realiatory discharge
Evolution of the employment relationship
Recruitment of appropriate candidates through: -Hiring -Testing -Performance appraisals
Motion to dismiss
Request by a defendant for the court to dismiss the plaintiff's case
Nationals Labor Relations Board
Requirement to "maintain a positive work environment" too restrictive
Nick, a history teacher, told his superiors that he was sexually harassed by another superior. When the schedule for the next semester came out, Nick saw that he was assigned a new room, one that did not have the necessary accommodations for his teaching style, and he was assigned chaperone duties on a date he requested off. Nick's best claim is that he is a victim of
Retaliation
Organizational profile: (affirmative action plans)
Staffing patterns showing organizational units; their relationship to each other; and gender, race, and ethnic composition
Legislation Prohibiting National Origin Discrimination
Statutes -Title VII, Civil Rights Act of 1964 >Sec. 703(a) Immigration Reform and Control Act of 1986 >Sec. 274A(a) >Sec. 274(B)(a)
Turner was constantly late for work and under performing in his sales quotas. His manager Larry is afraid to fire him because of Title VII. As an employee, Turner does not perform up to standards Larry should
Terminate turner as he would terminate any other employee
Retaliatory Discharge
Terminations in response to an employee exercising rights provided by law E.x., filing a claim charging discrimination Constitutional protections > Employer is prohibited from terminating a worker or taking other adverse employment action against a worker on the basis of the worker's engaging in constitutionally protected activities > State action - Protections vary from state to state
Eligibility testing
Tests conducted to ensure the capability and qualification of a potential employee -to be legally validated, an employer must show that the eligibility test is: > Job related > Consistent with business necessity
Information Gathering and Selection
The application phase: Application form acts as a source of information that will serve as the basis for screening out applicants based on requirements (monitor questions for relevance current need to know.. not asking maiden name) The interview: Must be nondiscriminatory in terms of the information solicited and the process by which it is conducted Background or reference checks: -Misrepresentation of academic credentials and work experience on résumés is rampant -Background checks: Verify the information that the candidate offers in the application and interview -References: Ask those references to give a name of someone else who has worked alongside the candidate as a peer Potential referrer liability-> trend away from useful info source -Negligent hiring risk -Note potential impacts and coverages of local,, state "ban the box" laws
Language rules
The federal government requires certain federal documents to be in two languages: -for instance, the irs now publishes income tax returns in spanish and english -"english first" a political action group, however, argues that by doing this, people are discouraging immigrants from learning english, this country's first language
How Do Affirmative Action Obligations Arise?
There are three ways in which affirmative action obligations arise: 1. Through Executive Order 11246 2. Judicially as a remedy for a finding of discrimination under Title Seven 3. Voluntary affirmative action established by an employer or union
Management Considerations: Testing
Three possible corporate approaches for testing employees for ineligibility Employer may establish mandatory testing - Testing for drug or alcohol use or some other form of ineligibility Employer may implement probable cause testing, where an employer tests employees only if there is suspicion of ineligibility Employers may implement random testing
Genetic Tests
Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) -Prohibits the use of genetic information in making employment decisions -Restricts employers from requesting, requiring, or purchasing genetic information -Strictly limits the disclosure of genetic information
Donaldson's Dog Joy is a company that manufactures and sells dog biscuits. It is a private company. As of now, it has 13 employees. It does not have a proper human resource policy in place. Although it hires women employees, it terminates them within a short time period without giving any strong reasons. The women employees have thought suing for discrimination under Title VII, but management is confident any claim is unactionable under Title VII. Why?
Title VII applies to private employers employing 15 or more employees and therefore applies to their company
Prejudice vs. Racism
Title VII does not prohibit personal prejudice as long as it is not acted upon (can not act on it but able to just not like someone) (might not be socially or morally okay but is legal to just not like someone but cannot act on it Vs Racism, which institutionalized that prejudice, which it does address
Carlo, 35, has been serving as a Catholic priest for the past two years in Alabama. He recently applied for a job teaching religious classes at a Jewish synagogue, but the synagogue declined to hire him. Carlo filed a claim with the EEOC claiming discrimination under Title VII against the synagogue. The EEOC found no reasonable cause in Carlo's case. Which of the following is a grounds for the EEOC to do so?
Title VII permits religious institutions and associations to discriminate when performing their activities
EEOC's Revised Race Guidance
Title VII's prohibition of race discrimination encompasses: -Ancestry -Physical characteristics -Race-linked illness -Culture and perception -Association -Subgroup or "race plus" -"Reverse" race discrimination (against Caucasians) (can always sue for discrimination but have to bring in a diff way not under title VII)
Purpose of national orgin protection
To ensure that employers did not make employment decisions based on preconceived notions about employees or applicants country of origin
Negligent hiring
To state a claim for negligent hiring, the plantiff must show: -The existence of an employer-employee relationship -The employee's incompetence or inappropriateness for the position assumed -The employer's actual or constructive knowledge of such incompetence or inappropriateness, or the employers ability -That the employee's act or omission caused the plantiffs injuries -That the employers negligence in hiring or retaining the employee was the proximate cause of the plantiffs injuries (on investigation, the employer could have discovered the relevant info and prevented the incident from occurring)
Workers Covered by Title VII
Undocumented workers may not be eligible for certain forms of relief, such as reinstatement and back pay -Claims of employment discrimination under Title VII is treated as a violation by the EEOC -Employment discrimination against undocumented workers is illegal
EEOC's E-RACE Initiative
Why Do We Need E-RACE? -Most frequently filed claims with the EEOC are issues related to race According to a 2005 Gallup poll, the percentage of incidents of discrimination witnessed or experienced was: -31 percent by Asian-Americans -26 percent by African-Americans Color discrimination claims are on the rise
Remand
_________ is when a reviewing court orders a lower court to take further action on a case in accordance with the reviewing court's opinion.
Bona Fide Occupational Qualification (BFOQ)
a necessary (not merely preferred) qualification for performing a job
Phyllis and Michael graduate from the same university with the same grades. They apply for a job in a company. The company decides to hire Phyllis and not Michael because Michael is an African-American. In this case, Michael is a victim of
disparate treatment discrimination.
Constructive termination
employer makes conditions so intolerable that reasonable person would quit; e.g., sexual harassment case. (force you to quit)
