Staffing Chapter 3--The Legal Context

defamation

(an unprivileged publication of false statements to third parties that tends to harm the reputation of the plaintiff in the community) is currently the most common cause of action used by former employees to challenge a former employer's reference. To avoid the risk of a defamation charge it may be best to say as little as possible except in those situations where the employee's behaviors could endanger others in the new workplace.

key elements that support successful EEO programs

- (S)tudy - know the laws and standards, remove EEO barriers, and seek assistance from the EEOC, professional consultants, associations or groups, etc. - (P)lan - know the relevant workforce and demographics, define the problem(s), propose solutions, and develop strategies for achieving them. - (L)ead - have all levels of management champion the cause and provide leadership for EEO implementation at all organizational levels - (E)ncourage - link pay and performance for how employees interact, support and respect each other. - (N)otice - monitor the impact of EEO practices; ensure that unfairness does not occur as a result of a corrective strategy. - (D)iscuss - communicate and reinforce the message that diversity is a business asset. - (I)nclude - bring all employees and groups into the analysis, planning, and implementation process. - (D)edicate - assign needed resources and stay persistent; investment in EEO may take a little while to pay off.

Bona Fide Occupational Qualification (BFOQ)

- A BFOQ exists when a protected classification can legally be used to make employment decision. - Business necessity required to use protected classification for employment decision - Business necessity - when employment practice is essential to firm's survival - An employer who uses gender as a BFOQ needs to show that all or substantially all members of that sex cannot reasonably perform some aspect of that job, and that the aspect is a business necessity. - Race and color can never be BFOQ. - Business Convenience is not a Business Necessity. - The likelihood in succeeding in making a case for a BFOQ is low.

Consumer Credit Reporting Reform Act of 1996

- Applies to any employer who conduct credit checks for employment purposes. - Administered and enforce by the Federal Trade Commission. - It must be justified by the nature of the job. - Employers must disclose in advance the company's intention to obtain a credit report. - Employers must obtain a written permission from the applicant or employee. - The applicant or employee must receive a copy of the report and written description of their rights under the act before action is taken based on the report.

Immigration Reform and Control Act of 1986 (IRCA)

- Attempt to control unauthorized immigration. - Applies to employers with at least 4 employees. - Enforced by the United States Citizenship and Immigration Services (USCIS) - Must verify all employees hired have legal right to work in U.S. - Employees complete INS Form I-9 - Should be completed after a job offer - Employers who violate are fined

why do employment laws exist?

- Because the employer typically has disproportionate power in the employment relationship - Help to promote fairness and consistent treatment among different employees by prohibiting unfair discrimination in employment and providing equal employment opportunity for everyone

barriers to advancement and promotion

- Deficient feedback, performance evaluation, and promotion processes of employees - Little or no access to informal networks of communication by employees of protected classes - Different standards of performance used for different classes of employees - Lack of equal access to assignments that provide key career experiences, visibility, and interaction with senior managers - EEO HR personnel not included in the recruitment process for higher job levels

Vietnam Era Veteran's Readjustment Assistance Act of 1974

- Employment protection for Vietnam era veterans, special disabled veterans, and other veterans who serve active duty during war or recognized military campaign - Employers with federal contracts of 25,000 or more are required to give EEO and AA. - The Office of Federal Contract Compliance Programs is responsible for administering and enforcing the executive order. - Employer to which Act applies must list most jobs with local state employment office - except for top management and executive positions, positions for less than 3 days and positions to be filled internally.

complying with employment laws...

- Enhances hiring quality - Enhances the firm's reputation and image as an employer - Promotes fairness perceptions among job candidates Reduces spillover effects (for example, rejected applicants not becoming customers or discouraging others from applying for jobs) - Reinforces an ethical culture - Enhances organizational performance by ensuring that people are hired or not hired based on their qualifications, not biases - Promotes diversity, which can enhance an organization's ability to appeal to a broader customer base

barriers to recruiting

- Failing to advertise widely in order to attract diverse applicants - Recruitment practices that overlook or fail to seek all qualified individuals - An over-reliance on informal networks for recruitment - A lack of formal systems for recruitment

Worker Adjustment and Retraining Notification (WARN) Act of 1988

- Helps ensure advance notice in cases of qualified plant closing and mass layoffs. - The United States Department of Labor (DOL) through its Veterans' Employment and Training Service (VETS) enforces the act. - Requirements for mass layoffs and plant closing (WARN) - Applies on organizations with 100 employees or more - Applies on plant closings and mass layoffs - Plant closing: loss of 50 or more employees during a 30 days period at one employment site. - Mass layoffs: employment loss of 500 or more during a 30 days period (or 1/3 of the workforce or more). - You need to provide a 60 days notice

labor unions

- Legally representing workers, organizing employees and negotiating the terms and conditions of union members' employment - The conditions of employment are contained in a contract called a collective bargaining agreement or a collective employment agreement. - Negotiates wages and salaries, working conditions, facility locations, staffing levels, job descriptions and classifications, promotions and transfers, layoffs and termination, grievance procedures, seniority provisions...etc.

Age Discrimination in Employment Act of 1967 (ADEA)

- Prohibits discrimination against individuals age 40 or older- including recruitment, promotions, layoffs and pay raises. - Employers might prefer younger workers or/and try to avoid paying retirement benefits. - Age might be deduced from the years of service and cannot be used in employment decisions. - Applies to employers with 20 or more employees. - The EEOC interpret the law, develop regulations and guidelines and enforce the act. - You can offer early retirement, but cannot force it. - The importance of this act escalated due to the aging population trend and older workers have high skill levels, strong work ethics, commitment and loyalty, and motivation for challenging work.

Executive Order 11246 (EO 11246)

- Prohibits discrimination based on race, color, religion, sex, national origin, sexual orientation, or gender identity - Requires Federal contractors with $10,000 or more to be an EEO employer. - Requires affirmative action programs from federal contractors and subcontractors, with $50,000 or 50 or more employees to have an affirmative action plan. - Affirmative Action: the process of actively seeking to identify, hire, and promote qualified members of underrepresented groups. - The Office of Federal Contract Compliance Programs is responsible for administering and enforcing the executive order. - The federal government can withhold payments based on the contractors' noncompliance.

Pregnancy Discrimination Act of 1978 (PDA)

- Prohibits discrimination because of pregnancy, childbirth, or related medical condition - Applies to private employers with 15 employees or more, labor unions, employment agencies, educational institutes, local states and federal government. - The EEOC interpret the law, develop regulations and guidelines and enforce the act. - Employer must treat pregnancy same as any other medical-related condition or temporary disability - that includes providing reasonable accommodation and healthcare benefits - Company health plans cannot exclude pregnancy

Title VII of Civil Rights Act of 1964 (CRA 64)

- Prohibits discrimination on the basis of race, color, religion, sex, national origin. - It is against the law to discriminate with regard to selection, termination, compensation, terms and privileges of employment, promotion or transfer, work assignments and any other employment-related activity. - Applies to employers with 15 or more employees - Covers federal, state, local governments, employment agencies, unions, U.S. citizens and legal residents of U.S. working outside U.S. for U.S. companies - The EEOC interpret the law, develop regulations and guidelines and enforce the act. - In 1972, the act was amended and gave the EEOC the right to sue employers.

Americans with Disabilities Act of 1990 (ADA) & ADA amendments act of 2008

- Prohibits employers from using disability as basis for discriminating against qualified individuals (whether it is actual or perceived disability). - Applies to private employers with 15 employees or more and local states and federal government. The EEOC interpret the law, develop regulations and guidelines and enforce the act. - Requires reasonable accommodation unless doing so causes undue hardship - Disability - physical or mental impairment that substantially limits one or more major life activities - Reasonable accommodation - making modifications to work environment so person otherwise qualified can perform essential functions Restructuring jobs, modifying work schedules, acquiring or modifying equipment, increasing the accessibility and usability of facilities...etc. - Essential function - job task, duty, or responsibility that must be done by person in a job - Isolate all medical information and ensure confidentiality.

Title II of Genetic Information Nondiscrimination Act of 2008 (GINA)

- Prohibits use of genetic information for making employment decisions. - Applies to private employers with 15 employees or more, labor unions, employment agencies, educational institutes, local states and federal government. - The EEOC interpret the law, develop regulations and guidelines and enforce the act. - Includes genetic tests (for the employees and their families) and information about family medical history - Do not ask for or acquire genetic information about applicants or employees. Sometimes you might have access to such information, ensure isolation and confidentiality.

Uniformed Services Employment and Reemployment Act (USERRA)

- Purpose: to ensure civilians (non-career military such as reserves or national guard) called for active duty can keep jobs when return from military assignment. - The United States Department of Labor (DOL) through its Veterans' Employment and Training Service (VETS) enforces the act. - Protects them from discrimination as applicants or employees, when it comes to initial employment, reemployment, retention, promotion and other benefits. - Can be absent for up to five years.

The Rehabilitation Act of 1973

- Requires federal contractors with contracts with more than $2,500 to engage in an affirmative action to promote the hiring of individuals with a disability. - Requires reasonable accommodation unless doing so causes undue hardship

exceptions to employment at will

- Retaliatory discharge (prohibited by EEO laws) - Implied employment contract (when an employer's personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a procedural process for firing) - Implied covenant of good faith and fair dealing (e.g., firing an employee to prevent their vesting in the pension plan next month) - Federal or state discrimination protection supersedes employment at will

disparate treatment and mixed motive cases

- Under the mixed motive analysis, the burden of proof is on the defendant to show that the decision would have been the same despite plaintiff's race or sex. - Under the disparate treatment method, the burden of proof is on the plaintiff to disprove the same thing.

barriers in terms and conditions

- Unequal pay - Counterproductive behavior and harassment in the workplace - Employer policies that are not family-friendly - Inflexible working hours and working conditions - Failing to provide reasonable accommodation to qualified individuals with disabilities

barriers in termination and downsizing

- Unfairness of standards used in making layoff decisions; differences in benefits given to different types of employees - Inadequate planning for the layoff - Lack of adequate incentives to encourage voluntary separations - Lack of communication between employers and employees - Failure to provide counseling, job placement assistance, and training to laid-off employees

general barriers to legally defensible staffing

- the "like me" bias - stereotypes - ignorance - prejudice - perception of loss by persons threatened by EEO practices - hiring managers

how the OFCCP defines "applicant"

1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies; 2. The contractor considers the individual for employment in a particular position; 3. The individual's expression of interest indicates the individual possesses the basic qualifications for the position; and 4. The individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position. Contractors must retain records identifying job seekers contacted regarding their interest in a particular position with respect and with respect to internal resume databases, retain the following: a record of each resume added to the database a record of date each resume was added to the database the position for which each search of the database was made for each search, the substantive search criteria used and the day of the search For external databases: a record of the position for which each search of the database was made the substantive search criteria used the date of search the resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor, even if they do not qualify as internet applicants.

EEOC best practices

A best practice in staffing: - Complies with the law, Promotes equal - employment opportunity, - Addresses one or more barriers that adversely affect equal employment opportunity, - Manifests management commitment and accountability, - Ensures management and employee communication, - Produces noteworthy results, and - Does not cause or result in unfairness.

negligent hiring

In order for a customer, employee, or other third party to win a negligent hiring suit against an employer, the following must generally be shown: - The existence of an employment relationship between the employer and the worker, - The employee's unfitness. - The employer's actual or constructive knowledge of the employee's unfitness (failure to investigate an employee's background can lead to a finding of constructive knowledge), - The employee's act or omission causing the third party's injuries, and - The employer's negligence in hiring the employee as the most likely cause of the plaintiff's injuries.

The Office of Federal Contract Compliance Programs

Responsible for administering and enforcing three equal employment opportunity programs that apply to federal contractors and subcontractors: - Executive Order 11246 (later expanded by Executive Order 11375) - Section 503 of the Rehabilitation Act of 1973 - The affirmative action provisions of the Vietnam Era Veteran's Readjustment Assistance Act of 1974 - Ensures that federal contractors with at least 50 employees and who receive $50,000 or more in grants, goods, and services take affirmative action to promote equal employment opportunity and annually file appropriate affirmative action plans - The OFCCP's mission is to ensure non-discrimination, to expand opportunities, and to make sure that all employment decisions are inclusive and supportive of diversity. - Primarily relies on compliance reviews and complaint investigations. - Although the OFCCP does enforce affirmative action compliance, it focuses to a greater extent on class action discrimination. - Conducts systemic reviews of employers' employment practices to search out discrimination.

Poll question: Department store BigTen refused to hire Max because of his religion. The store is in violation of ____.

Title VII of the Civil Rights Act of 1964

applicant

The legal definition of an applicant is particularly important with regard to two employment law issues: 1. Only "applicants" may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes 2. Employers must determine who qualifies as an "applicant" in order to identify the gender and race of all applicants to evaluate whether its hiring practices have an adverse impact on men, women, or minorities - The question of who is an applicant is critical to establishing the proportions of the applicant pool belonging to different legally protected groups (e.g., sex, race, national origin, etc.).

the 4/5 rule

a selection rate for any race, sex, or ethnic group which is less than 4/5 (or 80%) of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact

Affirmative action plans involving preferential treatment

aa plans should be remedial in nature aa should not exclude all non-minorities aa should be temporary aa should be formalized only allowable in cases settled by courts in contexts of discrimination claims It may be better for employers to identify the business-related characteristics and use it in making the hiring decisions rather than using the protected characteristics itself. Extends to layoffs as well

Implicit employment contract

an understanding that is not part of a written or verbal contract

contingent worker

any job in which an individual does not have a contract for long-term employment - Temporary workers - Leased workers - Part-time and seasonal workers - Unionized workers (e.g., hiring electricians for a project from a union hall) - Outsourced work

how can legal compliance be strategic?

avoid the expense of lawsuits, avoid the negative public relations that comes with litigation, allows companies to capitalize on the strengths of diversity and perform better because they focus more on performance and merit, be better able to hire quality people from all segments of the labor force

trade secrets

can be any type of information, process, idea, or "know how" that is not generally known and gives the possessor an advantage in the marketplace.

1986 Wygant v. Jackson Board of Education

challenged school board's policy of protecting minority employees by laying off non-minority teachers first, even though they had seniority. The supreme court ruled against the school board, saying that the injury suffered by the non-minorities affected could not justify the benefits of the minorities. an equal opportunity/aa statement should be included in all recruitment communications

flow statistics

compare the percentage of applicants hired from different subgroups to determine if they are significantly different from each other

stock statistics

compare the percentage of men, women, or minorities employed in a job category with their availability in the relevant population of qualified people interested in the position

concentration statistics

compare the percentages of men, women, or minorities in various job categories to see if men, women, or minorities are concentrated in certain workforce categories

open shop

does not discriminate based on union membership in employing or keeping workers. - some workers benefit from a union or the collective bargaining process despite not contributing to the union.

employment at will

either party can terminate the employment relationship at any time, for just cause, no cause, or any cause that is not illegal, with no liability as long as there is no contract for a definite term of employment

leased workers

employees of a company(also called a professional employer organization)who takes on the operation of certain functions or staff an entire location on a contractual basis for a client

equal employment opportunity

employment practices are designed and used in a "facially neutral" manner

union shop

employs both union and non-union workers, but new employees must join the union within a specified time limit

Equal Employment Opportunity Commission (EEOC)

enforces the following federal statutes: - Title VII of the Civil Rights Act of 1964 - The Age Discrimination in Employment Act of 1967 (ADEA) - Pregnancy Discrimination Act of 1978 - Title I and V of The Americans with Disabilities Act (ADA) of 1990 - Sections 501 and 503 of the Rehabilitation Act of 1973 - Sections 102 and 103 of The Civil Rights Act of 1991 - The Equal Pay Act of 1963 - The Genetic Information Nondiscrimination Act of 2008 (GINA)

staffing quotas

establish specific requirements, that certain percentages of disadvantaged groups be hired to equalize their proportional representation of under-represented groups in the company's workforce, with their proportions in the organization's relevant labor market. Generally illegal Often used as a court-imposed remedy for past discrimination or as part of a voluntary affirmative action plan Employees are not required to have a proportional representation in their workforce as long as they can they are not engaging in discrimination

closed shop

exclusively employs people who are already union members. An example is a compulsory hiring hall, where the employer must recruit directly from the union.

Fraudulent Recruitment

involves misrepresenting the job or organization to recruit an organization

mixed motive case

legitimate and illegitmate reason for making the employment decision

negligent referral

misrepresenting or failing to disclose complete and accurate information about a former employee. A former employer can be sued for negligent referral if the employee is involved in some incident at the new workplace that might have been predicted based on prior behavior.

Temporary workers

non-permanent employees of the company that may be supplied by staffing agencies or directly hired by the company

poll question: which of the following is true of a "closed shop"?

only union workers are employed

independent contractor

performs services wherein the employer controls or directs only the result of the work Helps control costs temporarily increases capabilities useful to companies competing through innovation or low-cost strate

!978 Regents of University of California v. Bakke

prohibited schools from considering race as a factor in admissions to promote racial diversity unless race is considered alongside other factors and on a case-by-case basis

agency shop

requires non-union workers to pay a fee to the union for its services in negotiating their contract.

2003 Grutter v. Bollinger and Gratz v. Bollinger

ruled that a school can make action-based admission decisions if it treats race as one factor among many of the purpose of achieving a diverse student student population

negligent retention

similar to negligent hiring, but it focuses on situations in which a company knowingly retains employees who have a high risk of injuring themselves or others.

employee

someone hired by another person or business for a wage or fixed payment in exchange for personal services, and who does not provide the services as part of an independent business

explicit employment contract

specific written or verbal employment contract

disparate treatment

the intentional discrimination based on a person's protected characteristic can be direct, for example resulting from a company's policy to not hire older workers can be inferred from situational factors or result from a combination of permissible and prohibited factors

affirmative action

the proactive effort to eliminate discrimination and its effects, and to ensure nondiscriminatory results in employment practices in the future - an affirmative action plan describes in detail the actions to be taken, procedures to be followed, and standards to be adhered to, when it comes to establishing in affirmative action program

Unlawful discriminatory employment practices

those that unfairly discriminate against people with characteristics protected by law.

inferring disparate treatment

to establish this type of case of discrimination under the theory of disparate treatment, the plaintiff must show: - they belong to a protected group - they applied for the job and were qualified for the job for which the employer was seeking applicants - that despite being qualified they were rejected - that after being rejected, the position remained open and the employer continued to seek applicants - bona fide - discrimination was the motivating factor

adverse impact

when an action has a disproportionate effect on a protected group, regardless of the employer's intent (the only defense for this is justified by business necessity or job relatedness (a BFOQ))

Systematic Discrimination

which occurs when a process or practice discriminates against significant numbers of applicants of employees