Employment Law

employee

"An individual employed by an employer"

Kroll v. White Lake Ambulance Authority

"counseling" ordered for EMT might be considered a "medical examination," which can only be required for current employees if job-related and a business necessity

In some states, arbitration agreements will not be enforced if they are _________?

"unconscionable" (both procedurally and substantively.)

The Immigration Reform & Control Act (IRCA)

1) Employers are prohibited from knowingly hiring or retaining unauthorized aliens 2) Employers with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship

Social Media in Recruiting

Since 2012, at least 9 states have enacted laws regulating employer access to the social media accounts of employees and job applicants

Elements of a BFOQ

That only persons with the specified protected class characteristic can do the job, AND That the job, as currently configured, is integral to the operation of the business

If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision.

If Defendant produces such evidence, Plaintiff may rebut by: Providing evidence that casts doubt on Defendant's claimed motive, and/or Providing other evidence supporting the claim of discriminatory motive

A discriminatory test can be successfully defended

by proving that it is job-related and consistent with business necessity

hybrid test

combining both Economic Realities Test and Common Law Test

Proximity

connection between events as they actually unfolded

EEOC vs. Target Corp.

court could consider evidence that Target may have racially identified applicants as African-American on the basis of names or accents

A contract is "procedurally unconscionable" if

drafted by the party with greater bargaining power and presented on a "take it or leave it" basis without opportunity for negotiation or modification.

Negligent hiring

extends the liability of employers for harm caused by their employees beyond actions taken within the scope of employment

Sex stereotyping

may be the basis for a claim of discrimination

Arbitration agreements do not

prevent employees from bringing complaints to government agencies like the EEOC, which may bring suit.

validation study

provides evidence that a test is related to job performance. It must be based on a job analysis

Lilly Ledbetter Fair Pay Act

provides that each discriminatory low paycheck is a separate violation which starts the limitations period anew.

Criterion validity

refers to a measure of job performance. Requires a demonstrated statistical association between performance on a test and performance on the job. They may be predictive or concurrent

Nepotism, word of mouth hiring

refers to favoritism toward relatives (Not a per se violation of Title VII, but results in hiring people who are similar)

Employer

status determines who will be held liable if an employee's rights are violated. We consider:

Random drug testing by public employers is prohibited by?

the Fourth Amendment to the U.S. Constitution, prohibiting unreasonable search and seizure, and some state constitutions

Price Waterhouse v. Hopkins

U.S. Supreme Court held that making promotion decision at accounting firm based on female accountant's not being feminine enough violates Title VII prohibition on gender discrimination

US imprisons far more citizens than other countries

U.S. has 5% of population of world, but 25% of world's prisoners. About 25% of all U.S. adults have some type of criminal history

scope of employment

"Actions within the scope of employment" Relate to the work the employee was hired to perform; and Take place substantially within the workplace and during working hours, serve the interest of the employees

Galeta v. Gray

"reverse discrimination" in employment to allege "background circumstances" sufficient to raise an inference of discrimination. This case poses the question whether a plaintiff's allegation that he was better qualified than the minority candidate chosen ahead of him for promotion can constitute sufficient background circumstances to establish a prima facie case, even in the absence of any external evidence that the employer was somehow motivated or inclined to discriminate against the majority. We hold that an allegation of superior qualifications, if supported by the facts, can constitute sufficient background circumstances to establish a prima facie case. A contrary ruling would defeat the purpose of Title VII--to shield the ideal of merit-based employment from the distortions of invidious discrimination.

Elements of fraud

(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.

Employers must refrain from seeking medical information from all applicants, disabled or not

(Medical inquiries include) Questions about disabilities Medical and psychological conditions Medical histories Medications taken Worker's compensation claims filed

See Gorham v. Benson Optical

(plaintiff had quit prior job, provided with a uniform for new job, and had been given her first week's schedule) The courts in both cases did recognize a claim for promissory estoppel.

Direct evidence

(the "smoking gun") may also be used to prove disparate treatment

The most common procedures required by state statutes are:

1. Employees must be provided with written notice that drug testing is required 2. Employees must be given copies of the employer's substance abuse drug testing policy 3. Employers must use licensed laboratories to analyze samples 4. Employers must perform confirmatory tests if requested or allow employees access to samples to have their own tests done 5. Employees must be given written test results 6. Employees must be given an opportunity to explain the result if the test is positive 7. Samples must be collected with due regard for employee privacy

By Whom?

1)At trial, plaintiff bears the burden of proof. 2)Either party may appeal to the appeals court. 3)Rarely does a case appealed from the appeals court get to the U.S. Supreme Court; if accepted, the Supreme Court issues a writ of certiorari. 4)Consistency & stability are provided by stare decisis

Can a Lawsuit be Brought?

1)Suits may be brought in state or federal court. 2)If federal, the trial is held in the district court. 3)Many cases are dismissed by summary judgment. 4)The employee who is suing is the plaintiff.

Four types of discrimination:

1. Disparate treatment (Requires discriminatory intent) 2. Adverse "Disparate" impact (Facially neutral policy has discriminatory effects) 3. Failure to reasonably accommodate (Applies to religion, disability only) 4. Retaliation (To punish based on employee's exercise of his legal rights)

Employment discrimination

A limitation or denial of employment opportunity based on protected class characteristics of a person (adverse employment actions)

Reverse Discrimination

A misnomer; results when white male believes hiring of woman or person or color constituted discrimination

Investigative report

A report containing similar information, but also based on personal interviews with friends, neighbors, and other associates.

Drug testing laws vary from state to state

About half of all states have drug testing laws Some require drug testing of certain types of employees or under certain circumstances (e.g., post-accident) No state prohibits all drug testing of employees Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA)

Employment at Will

An employee can quit at any time for any reason or no reason at all. An employer can fire an employee at any time for any reason or no reason at all, except for reasons prohibited by law.

Negligent Referral

An employer giving a reference may give incomplete information or misrepresent the work of a former employee. If that employee then harms others, the employer giving the reference may be liable for negligent referral. If an employer chooses to give a reference, it must not be misleading.

Employees (or applicants) must also watch what they say

Applicants should not provide false information or omit important facts in hopes of getting hired Courts regard refusal to hire due to falsification or omission as a legitimate, non-discriminatory reason for not hiring

But also employers must retain from

Applications & related records for at least 1 year after a hiring decision is made Records regarding people who were hired until a year after they leave employment Data regarding the protected class characteristics of applicants for purposes of affirmative action and adverse impact

EEOC remedies for violations may include:

Attorneys' fees, Court orders, Back pay, Front pay, Reinstatement, Hiring, Liquidated damages, Compensatory damages, and Punitive damages

Grounds for Recognizing BFOQs

Authenticity (actor in a movie role) Public safety (female prison guards in female prison) Privacy (nurses on duty in hospital facility where victims of sexual assault are admitted Note: The BFOQ defense NEVER applies to race or color

Advice for conducting background checks: (cont.)

Background checks should be more extensive if there is a greater chance that unfit employees could do harm to others. Employers should document all attempts to gather information, even if those efforts are not successful. If you must hire without a background check, hire, do the check, and fire the employee if unfit.

Mixed Motives

Both legal and illegal motives; Employer can limit damages if it can prove decision would have been made anyway Mixed motives analysis not available for disability, retaliation or age discrimination. In those cases, employee must prove that discrimination was the "but-for" cause

Medical Inquiries Prior to a Conditional Offer of Employment

But an employer may ask the applicant about his ability to do the job, and ask him to demonstrate how he would do it Following a conditional offer of employment (hired if pass medical exam), the employer can make any medical inquiry or perform any type of medical exam (excluding genetic tests) if all are subjected to same inquiries and medical exams The information learned may not be used to discriminate against qualified persons

Ways to determine if employment relationship exists

Compliance with tax laws Social Security and Medicare taxes Workers' Compensation and Unemployment Insurance

Defenses to Defamation:

Consent Qualified Privilege Truth

5 sources of employment law

Constitutions, Statutes, Executive Orders, Regulations, and Common Law

Two types of credit reports

Consumer credit report Investigative report

Two primary ways to establish validity

Content validation Criterion validation

Use of Drug Test Results

Courts are reluctant to protect at-will employees from termination based on drug tests, even if conducted improperly Disparate treatment claims are possible if the drug tests results of otherwise similarly situated employees lead to one being fired, and the other given more lenient treatment based on his protected class characteristic Employers should treat test results as confidential

Fair Credit Reporting Act

Credit reports are used by employers in making hiring decisions. The Fair Credit Reporting Act is the major federal law regulating the gathering, sharing and use of information by employers and consumer reporting agencies. Regulates consumer reporting agencies.

Substantive information can be difficult to get because of previous employers' concerns about legal issues:

Defamation>>>Former employers may retaliate against former employees. Former employers may negligently provide misleadingly positive referrals

Firms that contract with the federal government must comply with the Drug-Free Workplace Act (DFWA). The DFWA requires what?

Develop & communicate policies concerning drug use, sale or possession in the workplace Inform employees about the dangers of drug use and options for counseling and treatment Establish penalties for drug use violations Report any drug use convictions

The employer must establish validity (scored test of ability)

Does the test measure what it purports to measure?

I-9 information must be verified within 3 days of hiring

Driver's license, Birth certificate, US passport, Resident alien registration card, Unexpired employment authorization document, And others

EEOC v. AutoZone

EEOC Sues AutoZone for Fourth Time for Violating Americans with Disabilities Act

Pretext

Employer's stated reason for decision for decision is not the real one, employee believes

Smart Practice (promotions)

Establish procedures for promotions, publicize the opportunities, and facilitate applications from all interested employees

Employers should not directly inquire about protected class characteristics

Examples: asking age, whether U.S. citizen

Employers should not indirectly inquire about protected class characteristics

Examples: asking date of graduation, memberships, workers' compensation claims filed

Employers should avoid questions about requirements or criteria that are not uniformly applied to job candidates

Examples: asking marital status, child-rearing plans

Employers should avoid questions about requirements that have a high probability of producing adverse impact

Examples: questions about prior arrests, type of military discharge, height, weight

Defamation

False statements that reflect badly on a person are communicated to others, which results in damage to that person's reputation To be defamatory, statements must be false

Distinguish between "misdemeanors" and "felonies."

Felonies are serious crimes. (Criminal records are decentralized, and may be inaccurate.)

Sex Stereotyping: Discrimination Against Caregivers

Caregiver is not a protected class characteristic, but existing discrimination laws apply. Care giving includes care of children, aging parent or disabled family member. Employers sometimes discriminate based on perception that caregivers not committed to job

The 56 year-old scheduler who lost out on a job to a 40 year-old

Ch 3/Q 2 -- For plaintiff employee for viable age and disability discrimination

The 62 year-old HR assistant who was fired for disclosing confidential medical information about employees

Ch.3/Q.3 -- for defendant employer

The 55 year-old woman whose application asked her to indicate "the year you started working professionally"

Ch.4/Q.4 -- for defendant employer The employer cited lack of current or relevant experience, the superior qualifications of other candidates, and some positions that were not filled at all as reasons for not hiring her.

The foreign physician who thought he had a promise from his hospital employer to stay on the job in the U.S. for the length of his visa

Ch.4/Q.6 -- for defendant employer was not liable for breach of contract or any other legal claim

The festival attendee who was sexually assaulted by a temporary "camping staff" who before being hired had been convicted of sexual assault, hospitalized for drug addiction, and fired from several jobs.

Ch.5/Q.2 -- for plaintiff employee (employee charged with negligent hiring for not doing background check)

The home installation and repair person who had not disclosed on his application that he had been committed to a state psychiatric hospital, but who had been doing a good job

Ch.5/Q.8 -- for plaintiff employee because of comments about mental ward

The police department with the physical agility test that 71% of male candidates could pass, but only 12.9% of females could pass.

Ch.6/Q.7 -- for plaintiff employee because of adverse impact only hiring 4% women

The male who wanted to be a counselor at a weight loss center where 95% of the customers were women

Ch.7/Q.1 -- for plaintiff employee (employer charged with Facially discriminatory)

The woman with two young children who was fired because she did not want to have to attend out of town conferences

Ch.7/Q.3 -- for defendant employer

Background checks might include:

Checking references Verifying past employment & military service Confirming necessary degrees, licenses, other credentials Checking credit reports Inspecting candidates' online personas

Substantive Rights

Freedom to Engage in Concerted Activity and Collective Bargaining Terms and Conditions of Employment that Meet Minimum Standards Ex: Fair Labor Standards Act Protection of Fundamental Rights Ex: privacy torts Compensation for Certain Types of Harm Ex: Employer defames employee

May an employee refuse to be tested?

Generally, no, with some exceptions

H-1B visas

Granted to persons in specialty occupations; capped at 65,000. Require a bachelor's degree or higher. Limits the employee's stay to 6 years. Typically, such applicants are systems analysts, engineers, accountants, etc.

Visa classifications

H-1B visas (persons of distinguished merit) H-2B visas (temporary workers) L-1 visas (intracompany transfers) TN visas (highly skilled workers from Canada ad Mexico)

Saroka v., Dayton Hudson Corp.

Holding that questions such as the following to screen applicants for store security guards could discriminate on illegal grounds: "I believe in the second coming of Christ." "I have been in trouble one or more times based on my sex behavior." "I am very strongly attracted to members of my own sex."

four-fifths rule (rule of thumb)

If the selection rate (the % of applicants to pass the test, and continue to be considered) for one protected group is less than 80% (4/5ths) of the selection rate for the protected group that was most successful, this is evidence of discriminatory effect

Truth

If the statement is true, it is not defamatory, even if it hurts the person's reputation

Participation

Involvement in the enforcement of an antidiscrimination law

Breach of Contract

Is established by proof of a failure to live up to binding promises, regardless of intent. Concerns promises made about future terms and conditions of employment, usually oral. (But if false promises are made knowingly, this is fraud)

Harrison v. Benchmark Electronics Huntsville

John Harrison suffered from epilepsy and took barbituates to control it EEOC found he was not disabled Harrison was required to take a drug test before beginning work as a temporary employee Test came back positive Court held that jury could conclude that decision not to hire Harrison was based on results of drug test

Substantive Rights

Many people mistakenly believe that they cannot be fired as long as they are doing a good job, but this is not true.

Some protected classes are recognized under state or city law, but not federal law:

Marital status, Sexual orientation, Gender identity, Tobacco/alcohol use , Others

right-of-control

Most relevant issue is whether hiring party has authority to control where, when, and how the work gets done, even if the hiring party does not fully exercise its authority.

If your firm decides to use arbitration agreements, avoid provisions like these:

No selection of a neutral arbitrator Employee pays excessive fees Remedies inferior to those granted by court No minimum discovery process Many restrictions placed on the employee, but few on the employer Employer reserves the right to change the agreement at any time

Drug testing in employment is used

Prior to hiring; As part of periodic medical exams; To verify that employees who have been through drug rehab programs are "clean"; Upon observation of aberrant behavior that create reasonable suspicion of drug use; And sometimes randomly, after hiring. In random drug testing, a percentage of the work force is selected for periodic drug testing

Determining which laws apply

Public Sector or Private Sector Employment Unionized or Nonunion Workplace Employer Size Calculated by the payroll method Geographic Location Government Contracts Industry and Occupation

Protected Classes

Race, Color, Sex, National Origin, Religion, Citizenship (citizens or legal aliens), Age - 40 and over, Disability, Pregnancy, Military Service, Genetic information

Want ads and job announcements

Requires a neutral message re job availability, which does not express or imply a preference for some protected class group over another

Opposition

Resisting or speaking out against discrimination apart from participating in formal enforcement procedures

Is There an Administrative Prerequisite to a Lawsuit?

Some employment laws require that a charge be filed with the EEOC or Department of Labor. The agency tries to reach conciliation with the parties. Failing that, the agency issues a right-to-sue letter.

Negligent hiring extended

Some industries have specific legal requirements for screening employees. Also, courts look to public policy to determine whether a type of employment calls for greater care in hiring. For most jobs, the degree of care required depends on foresee-ability (Would a reasonable person have foresee that hiring an unfit person for the job was likely to harm others?)

First employment legislation

State workers' compensation laws to deal with severe problem of injured workers, 1930s, National Labor Relations Act (Most employment laws reflect the work of social movements.)

Interviewing

Subjectivity in the interviewing of candidates for employment tends to be high Unstructured interview questions which vary from one candidate to another may lead to charges of discrimination An employer must be able to articulate specific, objective grounds for poor interview performance

Pattern or Practice

Systematic, affecting many employees; statistics

Goff-Hamel v. Obstetricians & Gynecologists, P.C

The courts in both cases did recognize a claim for promissory estoppel.

Accommodating Disabled Persons in Testing

The legal responsibility to provide accommodation begins pre-hire. Unless the disability is obvious, the employer is not responsible for providing an accommodation unless requested. However, employers should tell candidates about the types of tests that will be used. Finally, employers should document requests for accommodation

This protection(qualified privilege)can be lost if:

The statement was made with malice (intent to harm the person's reputation), Or with reckless disregard for the truth, or overly broad publication of the statements

Promotions (For women and people of color)

Often lines of progression in firms mean that one job leads to another, so that if they are not hired for such jobs, they will not be promoted Where promotions are not posted or announced, they are less likely to be promoted If training and development programs are not made available to them, they are less likely to be promoted Subjective criteria are relied on more heavily in decisions for promotion, making them less likely to be promoted

Weight and appearance

Physical appearance has pervasive effect on employment outcomes People judged better looking are more likely to get hired, to be promoted, and to be paid more Discrimination on the basis of weight is common, but more slack given to men But only in some cities is weight a protected class The ADA may provide a basis for a claim for workers who are overweight or underweight, based on whether the worker is medically obese

Plaintiff must prove a prima facie case

Plaintiff's relevant protected class characteristic, Employer knew plaintiff was in protected class. (Example: employee not yet visibly pregnant) Applied for the employment opportunity The employment opportunity was available Plaintiff was qualified for it Plaintiff was denied the opportunity Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics

Griggs vs. Duke Power Co.

education requirements and intelligence tests used as conditions of employment did not relate to job performance and were banned

Facially Discriminatory Policy or Practice

employer readily admits to using protected class as a basis for making employment decisions but insists that there is a sound business reason for doing so

respondeat superior,

employers are liable for the harm to others caused by their employees acting within the scope of employment

Enforcement procedures

exist for bringing and resolving claims.

Employment Law

is a patchwork of federal, state, and local laws.

An internet applicant

is a person who expresses interest in employment via the internet or other electronic data technology

If, as a result, the employer intends to take adverse action

it must notify the person with a "pre-adverse action disclosure" so that the person may explain or refute the negative information After taking an adverse action based on a credit report, the employer must give the person an "adverse action notice."

A contract is "substantively unconscionable" if

its terms are markedly unfair to the less powerful party, particularly by imposing limits and burdens on the less powerful party which are not shared by the other.

Galeta vs. Gray

jury could reasonably find that Geleta was transferred to a different job in retaliation for corroborating a claim of racial discrimination

Subordinate Bias (Cat's Paw) theory

may apply when there is evidence of a discriminatory motive by a supervisor or other manager, but not on the part of the official who makes the decision

Qualified Privilege(conditional immunity)

means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state's law.

Failure to check at least recent references can be evidence of

negligence in hiring.

L-1 visas

permit multinational firms to temporarily transfer staff from foreign facilities to the U.S. Attractive to employers because number not capped, and carry fewer restrictions But under increased scrutiny No requirement that these workers be paid the prevailing rate Firm must station employees at company's own facilities and retain supervisory authority

Independent contractor

provide tools, etc., and pays its own business expenses, hire its own assistants, should be paid a flat fee for the work. Long-term ICs; don't assign new projects without renewing the agreement, Don't have ICs doing same work as employees, Don't provide benefits, even time off, and may offer services to others

Defamation in employment law

relates to references, statements or information provided by a former employer to a prospective new employer

Subjective criteria

rely heavily on intuition and gut feelings, and are likely to vary across decision-makers Employers increasingly emphasize "soft skills" and "fit" Adverse impact discrimination possible

Federal Arbitration Act (FAA)

requires courts to enforce most written arbitration agreements. (But like other contracts, arbitration agreements are subject to contract defenses.)

content validity

requires the performance of the same behaviors and skills as the job in question (Example: word processing test for secretarial job) Can't be used to validate tests of intangible traits (intelligence, personality)

Mandatory arbitration agreements

requiring employees to submit their employment disputes to arbitration (not mediation), rather than bring suit in court, are generally enforceable.

Jones v. Oklahoma City Public Schools

school board's reasons for reassigning administrator found to be a pretext to age discrimination

Comparative evidence

shows the employer to have treated the plaintiff worse than another employee under the same circumstances

promissory estoppel

situations where injustice would otherwise occur because a person has reasonably relied to her detriment on the promises of another.

Thompson v. Bosswick

statements made by former employer about employee could be defamatory

Narayan v. EGL, Inc.

the Ninth Circuit rejected the defendant's contention that because its workforce signed independent contractor agreements, the court was compelled as a matter of law to find that its workers were properly classified as such. The court applied the appropriate California classification test to the facts of the case and ruled that the relationship between the drivers and the freight-handling company was one of employment.

NASA v. Nelson

the U.S. Supreme Court left open the possibility that employees enjoy a constitutional right to informational privacy when subjected to background checks by government agencies. After 9/11, the NASA contract employees had been subjected to the extensive checks required of federal employees, including prior drug treatment, and open-ended questions asked of former employers, landlords, neighbors & others

relevant labor market

the protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area

If offer is made then withdrawn (possible legal actions concern fraud, negligent misrepresentation & breach of contract)

Unless employer knew at time of offer that job would not materialize, no cause of action Because of employment at will, a promise of a job which is then revoked will not result in a valid claim Only if the employee has relied to his detriment on the promise (relocating, buying or renting a residence, etc.) are the courts likely to recognize a claim for the equitable remedy of promissory estoppel

The Omnibus Transportation Employee Testing Act regulations for drug testing include:

Use of tamper proof custody seals on specimen containers, Documentation of the chain of custody, Confirmatory tests, and the use of a qualified medical review officer to interpret results & communicate them

Several recruitment mechanisms

Want ads and job announcements- Wording must be neutral Employment agencies- May not discriminate on behalf of employer clients Nepotism, word of mouth hiring- Unless workforce is already diverse, tends to recruit similar employees

Civil Rights Act of 1964

a landmark piece of civil rights and US labor law legislation in the United States that outlawed discrimination based on race, color, religion, sex, or national origin

Breiner v. Nevada Dept. of Corrections

allowing only female guards in a prison for females not a BFOQ

Americans with Disabilities Act protects certain employees

an employer must not fail to promote, terminate, or otherwise discriminate against, an employee who has undergone treatment for drug addiction and is no longer using drugs. The inquiry must be whether the employee is able to perform the essential functions of the job, with or without reasonable accommodation. If the applicant is able, the medical condition does not disqualify him.

medical examination

any "procedure or test that seeks information about an individual's impairments or health," but which tests are medical exams is not always clear (medical exams are covered by the ADA) As a practical matter, medical exams should be the last tests performed in the hiring process. Drug tests are not medical exams, but testing for prescription drugs taken for medical conditions that might be disabling IS a medical exam

Illegal aliens

are those who are unauthorized or undocumented workers

Legal aliens

are those who have the legal right to work in the U.S.

Background checks

are used to verify information provided by candidates, and to determine whether any disqualifying factors exist

Because employment decisions can have consequences months or years after the events, HR managers should be careful to document decisions and the reasons for them

at the time they occur.

Arbitration clauses in collective bargaining agreements (CBAs) do not

bar those employees from going to court.

negligence

based on idea that each person has a duty to others to exercise reasonable care (ie. When his failure to do is proximate cause of harm to others, he is liable, negligent)

Defense for disparate treatment

bona fide occupational qualification (BFOQ)

Spears v. Amazon.com

court held that jury could reasonably find that Amazon fraudulently induced him to accept a position with promises of stock options

Casias v. Wal-Mart Stores

court rejected plaintiff's request for a new category of protected employees - those who use medical marijuana

Lanning v. SEPTA

court took stringent approach to establishing whether requiring that transit system police officers be able to run 1.5 miles in 12 minutes was a business necessity

neutral requirement

disproportionately limits the employment opportunities of a protected class of which plaintiff is a member. The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance.

polygraph

does not "detect lies" but measures changes in physiological responses

Recruitment gains information from applicants, but also discloses information to applicants about the job

These statements can have legal consequences Employers might be tempted to downplay negative information, or make promises regarding the duration of employment, promotion, or pay raises when trying to recruit desired candidates Misrepresentations and unfulfilled promises can give rise to many legal claims, including fraud, negligent misrepresentation, and breach of contract

If your firm decides to use mandatory arbitration agreements, make certain that:

They are in writing. They clearly notify employees that they are waiving their right to sue. The employee understands the terms. The employee signs in writing to indicate acceptance of the agreement.

Glass Ceilings

Those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing in their organization into upper management positions.

Negligent misrepresentation

does not require proof of the element of intent to falsify or reckless disregard for the truth Sufficient to show that employer should have known about the falsity of its statements Silence may also constitute misrepresentation when an employer selectively omits material facts with the intent of creating a false impression or fails to correct the impression after becoming aware of its falsity

If Plaintiff proves a prima facie case

then Defendant must prove that the challenged requirement is job related and consistent with business necessity. In age discrimination cases, the employer must show that the requirement is a reasonable factor other than age. 3) If Defendant successfully defends the requirement, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. (Does not apply in age discrimination cases.)

Ketchikan Drywall Services v. Immigration & Customs Enforcement

upholding penalties imposed by administrative law judge against company with poor compliance with requirements to collect I-9 forms

Narayan v EGL, Inc.

using hybrid test to conclude that there was an employment relationship between supply chain management company and its workers who provided freight pick up and delivery services

Foreseeability

whether harm can be anticipated

Types of Disparate Treatment Cases

Mixed Motives, Pattern or Practice, Harassment

EEOC v. Dial Corp.

Canned meat manufacturer failed to show that "work tolerance screen," to reduce injuries, was a business necessity

Credit report (cont.)

A prospective employer must disclose to the applicant that a credit report will be obtained, and must get the applicant's approval in writing, in a stand-alone authorization The authorization cannot be included as part of the employment application If, as a result, the employer intends to take adverse action, it must notify the person

H-2B visas

15% of workforce are H1-B visa holders, For foreign nationals who come to the U.S. for temporary or seasonal work, are for agricultural or logging, are for temporary workers in other industries (but not nurses) Employers using H-2 visas must show that there are not enough U.S. workers, and these will not adversely affect the wages of U.S. workers.

Consumer credit report

Any communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, character, or reputation, which is to be used as a factor in assessing eligibility for employment purposes.

Distinguish between "arrests" and "convictions."

Employers may inquire about convictions, but not arrests.

race norming

Employers may not use this or otherwise adjust scores based on protected class characteristics

Consent

Employers might require that former employees sign a written release of information form, granting permission to communicate information about him. But is it effective if the employee does not know what the employer will say? An alternative is to negotiate with the employee a letter of reference

Temporary workers rule

Employers must not arbitrarily exclude from the benefits of employment long-term temps, doing the same work as regular employees, who meet legal criteria of employees.

Employment agencies

Employers must not request that agencies discriminate

Facially discriminatory policies/practices (limited defense is BFOQ)

Employers that base hiring and promotion decisions on protected class characteristics are engaging in disparate treatment discrimination When they argue that it is necessary for business reasons, this type of disparate treatment is termed a facially discriminatory policy or practice

NLRB's conflicting rulings

Graduate students & teaching assistants at private universities are primarily students, not workers. Medical interns and residents are employees with the right to unionize. Grant-in-aid scholarship football players at Northwestern University are NOT employees with right to unionize.

Job offers in writing

Include salary or wage & start date Include employment at will if applicable, & explain Reference the employee handbook or other materials Offer should clearly specify what is included and what is not

Sex-plus cases

Less obvious form of facially-discriminatory practice Discrimination may occur when neutral criteria are applied to some protected class groups, but not others (Example: One employer refused to hire women with children under 5, but did hire men with children under 5. The employer was unable to establish a BFOQ for this conduct.)

Factors for discrimination

Liability arises not from prejudice alone, but from its effects on employment opportunities Unfair treatment must be based on or related to the protected class characteristics of people

Smart Practice (Drug Testing)

Notify employees if they are subject to drug testing Notify employees of the circumstances under which drug testing will occur. Notify employees of the consequences of testing positive. Carefully label specimens. Document chain of custody for samples. Respect the privacy of employees being tested. Use reputable labs, and monitor their performance. Use confirmatory tests for positive results. Appoint a medical review officer to interpret results. After a positive result, seek information about medications the employee is taking. Take into account medications that may affect the result. Give employees the opportunity to provide alternative explanations for positive results. Treat all drug tests as confidential. Provide rehabilitation drug programs.

Major Anti-discrimination Laws

Title VII of Civil Rights Act of 1964 Equal Pay Act Age Discrimination in Employment Act Rehabilitation Act Pregnancy Discrimination Act Americans with Disabilities Act

applicant flow data

To avoid discrimination, compare the protected class composition of an applicant pool to the group that passed the test

The Role of Managers in Legal Compliance is

To recognize, analyze and deal effectively with employment law issues. To put in place sound policies and practices that PREVENT legal problems from arising in first place. To enforce compliance with established law and develop strategies for dealing with legal issues that are not clear. To know when to seek legal advice.

In the application process, employers decide

What must be done to apply. Whether applications will be accepted. The period of time for which applications will be accepted. How long submitted applications will remain valid

Volunteers rule

Whether benefits received by volunteers constitute "significant remuneration" or "inconsequential incidents of an otherwise gratuitous relationship", and some courts also consider other factors

Whether and how laws apply depends on:

Whether employees work for the government or a private employer, whether they have union representation, and the size of their employer

Retaliation

focuses on the employee's protected activity rather than on the employee's protected class characteristics

The Genetic Information Nondiscrimination Act (GINA)

forbids employers from acquiring genetic information regarding applicants & employees. exams must not include the taking of a family medical history or other forms of genetic information gathering GINA also prohibits the use of genetic information in making employment decisions

The Employee Polygraph Protection Act (EPPA)

forbids private employers from requiring a pre-employment polygraph or other truth-telling devices Prior to its passage, preemployment polygraphs were routinely used

Circumstantial evidence

hints at the possibility of discrimination, but is not sufficient by itself to prove it

Nino v. The Jewelry Exchange

holding that arbitration agreement was unenforceable because it contained unconscionable terms, such as a five-day time period within which to complain, a requirement that each side bear its own legal costs, and method of selecting arbitrators that favored employer

Hamilton v. Geithner

holding that employer's explanation of a bad interview by plaintiff was a pretext for discrimination based on race

Glatt v Fox Searchlight Pictures

holding that interns were improperly not classified as employees, because they provided immediate advantage to the company and their program was not uniquely educational

Chattman v. Toho Tenax America

holding that racial bias of HR manager, as evidenced by jokes about O.J. Simpson, against shipping coordinator with good 20-year record could be attributed to upper management

Smith v. City of Salem, Ohio

holding that transsexual firefighter diagnosed with gender identity disorder, who began to adopt a more feminine appearance, could successfully sue for gender discrimination after he was forced to quit

Knowledge (in negligent hiring)

in this context refers to the fact that the employer was aware, or should have been aware if proper screening procedures were followed, that the person was unfit for the job

Scored tests of ability such as

intelligence, aptitude, specific job skills or knowledge, work-related attitudes, personality traits, strength and physical fitness (these are not discriminatory)

Glass Ceiling

invisible, artificial and attitudinal barriers in the workplace