Employment Law Exam 2

Decision of Arbitrator

BINDING

What are some issues employers should be aware of when developing employment-related testing programs?

- employers must carefully conduct job analyses ensuring adequate representation of minority groups when collecting data concerning jobs - a specific strategy for validation is necessary and adequate support must be obtained in order to be acceptable to the courts - attention to test administration and security also can be relevant, particularly if there is any chance that someone may cheat - if there is more than one section or part to the test, the weighting of those parts in making the employment decision will be taken into account by the courts

Employers may verify ___ in a background check

- education - experience - driving records - credit standing - bonds - exclusion from government programs

Characteristics of Defamation

- employee must be able to show that the employer disseminated their intimate information to the public and that disclosure was not reasonably necessary to serve employer's legitimate - exception is lost where employer disclosed information on basis of malice across the employee

After-Acquired Evidence Defense in Wrongful Termination Suits

- employer doesn't need to hire someone once misstatement or misconduct has been discovered - may fire someone for that reason - usually comes up after someone is fired (slick)

Reasons encouraging workplace testing for ineligibility

- employer may wish to reduce workplace injury or provide safe working environment - use drug tests to predict employee performance or deter poor performance - can reduce employer's financial responsiblity to state workers' compensation system

Four areas of potential problems in connection with interview

- employer must ensure interview procedures do not discourage protected groups - employers should be aware that all-white or all-male interviewers who are not well-trained may subject employer to liability - training of interviewers is crucial to avoid biased questions, gender based remarks, and unbalanced interviews - evaluation of applicant subsequent to interview should follow a consistent and evaluative process rather than reflect arbitrary and subjective opinions

What actions are included in affirmative action?

- employment - upgrading - demotion - transfer - recruitment - layoff - pay rate - selection of training

Checklist System

- evaluates each employee according to a list of behaviors found to be related to job performance - checklist is prepared based on the effectiveness by job experts

Affirmative Actions an employer takes

- expanded outreach to groups that the employer has generally not made an effort to reach - recruitment of groups the employer generally has not made an effort to recruit - management training and development - hiring - training - other attempts to bring into the workplace groups that have tended to be left out of the employment process

Under Executive Order 11246 how does compliance increase based on the amount of the contract?

- for smallest contracts the employer agrees that in addition to not discriminating in employment it will post notices that it is an equal opportunity employer - if a contractor has 50 or more employees and a contract of 500,000 or more it must develop an affirmative action plan

Content Validation

- has sufficiently sampled the knowledge and or skills required by specific position for job performance - easiest to ensure representativeness at this stage

What employers are exempt from polygraph regulations?

- private employers whose primary business purpose is to provide security services - employers involved in the manufacture, distribution, or dispensing of controlled substances - federal, state, and local government employers

Executive Order 11246

- prohibits discrimination in employment

Valid Non Competition Covenant will meet the following

- protect a legitimate business interest - ancillary to a legitimate business relationship - provides benefit to both employee and employer - reasonable in scope and duration - not contrary to the public interest

What do statutes imply in terms of recruitment?

Employer not only recruit from diverse audience but also design employment announcements that will encourage diverse group of applicants

Misstatements

Employers can be liable for fraud in recruitment when misstatements are used to discourage potential applicants from pursuing positions

What was the first important Title VII case decided by the US Supreme Court?

Griggs v Duke Power Co. --> made it clear that equality meant equality in every way

What happens if the percentage of women/minorities employed in a job group is less than would reasonable be expected based on their availability in the area from which employees are drawn from?

the contractor must establish a placement goal that reflects the reasonable availability of women/minorities in the geographic area

T/F most job applications contain false information

False *as job responsibilities decrease employer is less likely to check*

Example of Job Related Requirement

Firefigher physical agility test --> disparate impact on women -->BUT examination is rationally related to legit purpose of the city --> if scoring system was fair than the test was acceptable even if there was a disparate impact on women--> defendant presented evidence that the examination was rationally related to a legit purpose of the city

What is a complete defense to defamation?

Truth

What legislation deals with Affirmative Action for Veterans?

Job for Veterans Act of 2002

What happened in the first workplace affirmative action decided by the US Supreme Court?

the court determined that affirmative action is a viable means of effectuating the law and addressing present-day vestiges of the 346 year system that kept African Americans subjugated

Non-Compete Agreement

agreement signed by the employee agreeing not to disclose the employer's confidential information or enter into competition with the employer for a specified period of time or region

Who is subject to medical examination requirement?

all employees- may not single out individual applicants

Voting Rights Act of 1965

allowed African Americans to vote

National Labor Relations Act

allowed for the power of collective bargaining by employees to gain employees more equitable, stable working wages, and conditions

Forum Selection Clause

clause in a contract that identifies the state law that will apply to any disputes that arise under the contract

How do employers show a specific strategy for validation to the courts?

clear links between the information necessary to answer test questions and work performance should be shown

Job Group Analysis

combines work titles with similar content, wage rates, and opportunities - analysis is then compared to the availability of women/minorities for these job groups

Negligence

commission to do something a reasonable person would do when guided by those considerations that ordinarily regulate human affairs or something that a prudent and reasonable person would not do

Misrepresentation or Fraud

company representative who makes an intentional or negligent misrepresentation that encourages an applicant to take a job may be liable to that applicant for harm that results

How is Veteran's affirmative action different from other Affirmative Action?

contains provisions for priorities for referring veterans for employment rather than making an effort to be inclusive of excluded categories of employees - not mean they must be hired but they are given priority in job openings

Genetic Non-Discrimination Act

currently before Congress but no federal legislation has been passed - Genetic irregularities that impair a major life activity may be considered protected disabilities under the American Disabilities Act - may encourage discrimination based on myths, fears, and stereotypes of genetic differences

Title 7 exempts professionally developed employment test of eligibility from disparate impact claims of discrimination as long as test is not ___

designed, intended, or used to discriminate on basis of membership of a protected class

Why is affirmative action necessary?

despite anti-discrimination laws, minorities and women still lag behind in pay, jobs, and promotion

Due Process

disciplinary process was carried out in fair manner - timeliness of discipline and adequacy of employer's investigation - ensuring employee is aware of charge made and given an opportunity to respond - make sure employee is not penalized twice for same conduct

Why don't employers usually document failure to hire?

they don't want to write that down and be bound by that standard

Improper Performance Appraisals

those that do not fairly or adequately evaluate performance but instead perpetuate stereotypes that have an adverse impact on a protected class

How is effectiveness of affirmative action measured?

monitoring records of all personnel activity to ensure that contractor's nondiscriminatory policy is being carried out

What happens if an eligibility test is too abstract?

more abstract --> harder to prove validity

How can employers defend performance appraisal systems?

must be some reasonable need for it to ensure objectivity and fairness ex) if there is a checklist it must be free of bias --> validation

Secretary of Labor

must make reasonable efforts to secure compliance by conference, conciliation, mediation, persuasion, before requesting the US attorney general act

Are non-competition agreements federal law?

no - state by state basis

Questions about age/sex/religion

not prohibited by federal law BUT are dangerous and must be related to the position for which applicant applies in order for employer to be able to ask such questions - employer has no right to those questions unless it is a BFOQ

Negligent Retention

occurs when an employee's conduct gives rise to employer action like suspension/dismissal but employer fails to take action and third party suffers damages

Self Publication

occurs when an ex-employee is forced to repeat the reason for his termination and thereby makes a claim of defamation

Example of Disparate Treatment

people perceived as more attractive may be viewed as more intelligent and more competent which could have an impact on appraisers and their treatment of certain groups

Placement Goal

percentage of women/minorities to be hired to correct underrepresentation

Performance Appraisal

periodic assessment of an employee's performance usually completed by their immediate supervisor and reviewed by others in the company

What are employers more likely to do when promoting from with-in?

post a notice of a position availability and allow all employees opportunity compete for an open position

Nepotism

practice of hiring members of the same family

What is affirmative action designed to remedy?

present day employment inequities based on race or genderd

Investigation Exemption

private employers can test current employees if following four conditions exist - test must be administered in connection with workplace theft or incident investigation - employee must have had reasonable access to missing property or loss incurred - employer must have reasonable suspicion that this particular employee was involved - employee must have ben given written information regarding basis for the investigation

What are placement goals designed to measure?

progress towards achieving equal employment opportunities

Debar

prohibit a federal contractor from further participation in government contracts - in cases where employer refuses to remedy disparities found, they can be debarred from further participation in government contracts - rare occurrence

GI Bill

provided returning veterans of World War II the right to receive financial assistance to go to college and low interest loans for homes and businesses

Equal Opportunity Survey

provides OFCCP with compliance data early in evaluation process so it can identify contractors for further evaluation

Uniform Trade Secrets Act

provides relief in form of monetary damages, attorney fees for misappropriation of trade secrets

Rehabilitation Act

requires affirmative action programs for employment of employees with disabilities but NOT preferential treatment - action is limited to posting notices of obligation to be non-discriminatory in hiring practices

Arbitration

selection of a neutral or third party to consider a dispute and to deliver a binding and non-binding decision

Promoting from With-In

some employers use secretive process, quietly soliciting interest in a position fro a few upper=level employees selected on recommendations from their supervisors --> after employee accepts offer a notice is posted announcing the promotion --> if women and minorities are not well represented in firm this can result in disparate impact

Organizational Profile

staffing patterns showing organizational units relationship to each other, gender, race, and ethnic composition

What kind of discipline systems are considered fair?

systems that maintain consistency in application and provides specific guidelines for attaining varying levels of performance and that communicates this information to employees is one likely to be deemed fair *fairer the system --> less likely it will come under attack from disgruntled employees

Pre-Employment Testing

testing that takes place before hiring, or sometimes after hiring but before employment, in connection with such qualities as integrity, honesty, drug, and alcohol use, HIV or other characteristics

How much of charges filed with EEOC are reverse discrimination and what are usually the results?

- 3% of EEOC charge - most result in No-Cause findings

Jim Crow Years

- 75% of African Americans in South and 60% worldwide were agricultural workers at the time - these jobs were excluded from minimum wage laws

Benefits of Word of Mouth Recruiting

- preliminary screening accomplished by current employees - more likely for long term service/loyalty

What is the main argument against Affirmative Action?

"Sins of the father"

Examples of tests with purpose of finding the best individual for a position

- Achievement tests, personality indicators - may seem facially neutral but can have a disparate impact on protected class

Pieces of Protective Employment Legislation

- Americans with Disabilities Act - Rehabilitation Act - Vietnam Era Veterans' Readjustment Assistance Act

Three Types of Validity

- Criterion Related Validity - Content Validity - Construct Validity

When are Anti-Nepotism policies illegal?

- discriminatory when not applied across the board ex) wife cannot be hired if husband is current employee but husband can be hired if wife is current employee - policy is only enforced at one level of company

Timeline of Affirmative Action

- First slaves in America - Civil War ends - 13th Amendment to Constitution Abolishes Slavery - Civil Rights Act of 1964 is Passed - Civil Rights Act of 1964 becomes effective - Voting Rights Act of 1965 is passed allowing African Americans to vote - First Important Title VII case decided by US Supreme Court - First workplace affirmative action decided by US Supreme Court - Affirmative action is hotly debated - US House of Reps apologizes for slavery, Jim Crow, and aftermath, joing five states that had already issued such resolutions

Why does the HIV test not fall under a justified test?

- HIV is not transmitted by casual contact that takes place in a work environment - Test reports only the subject's status as of several weeks, if not months, in the past

Does a misrepresentation have to be a false statement?

- IF a statement creates false impression employer can also be liable for fraud - employer is aware applicant is under mistaken belief about position or company, employer's silence can constitute misrepresentation - where the employer hides certain bits of information

In order to get the snapshot of what the contractor's workplace looks like as it relates to minorities/females employers must provide ___

- Organizational Profile - Job Group Analysis - Availability - Placement Goal

What are the 2 factors used in determining availability for employees?

- Percentage of minorities/women with requisite skills in the reasonable recruitment area - Percentage of minorities/women among those promotable, transferable, and trainable within the contractor's organization

Americans w Disabilities Act: Recruitment

- Prior to offer of employment employer may not ask disability related questions or require any medical examination if they are not related to the job - BUT an employer can ask if applicant will need "reasonable accommodation" during hiring process - employer must provide a reasonable accommodation to a qualified applicant with a disability even if it believes it will be unable to provide this individual with a reasonable accommodation on the job

Two Forms of Employment Testing

- Tests for the purpose of finding the best individual for a position - Tests to ensure individual is free of problems that would prevent her/him from performing the position's functioning

What laws are Recruitment subject to?

- Title 7 - Rehabilitation - Americans with Disabilities Act

Veteran's Priority

- Veterans have priority service in Department of Labor job training programs - Federal Contractors must file VETS 100 forms verifying plans have been followed - demonstrates active recruitment of veterans

What happens if a reference chooses to respond?

- While there is no affirmative duty to respond, those who respond may be held liable for negligent misrepresentation based on misleading statements in employment references - once you choose to respond, you must respond FULLY AND HONESTLY to avoid forseeable harm

Americans w/ Disabilities Act: Drugs

- act applies to private sector employers provides that individuals who currently use illegal drugs are not considered individuals with disabilities - however, if an employee or applicant is pursuing or has successfully completed a rehab program and demonstrates that they have a disability based on prior use they ARE covered by the act and therefore entitled to reasonable accommodation

Confidentiality in Medical Examination

- all information generated through the examination process must be maintained in confidential files - separate from other general personnel related information - before applicant's employment, no medical examination may be required unless test is job-related and justified by business necessity

Prima Facie in Misrepresentation ACtion

- application must show that employer represented a material fact either intentionally or with recklessness about its truth or falsity - applicant reasonably relied on this representation in arriving at the decision to accept the offer - he/she was damaged in that reliance

Subgroup norming

- ban on subgroup norming is not limited to race as means of defining subgroups - also may no longer be defined in terms of gender, religion, or nation origin

Documentation of Failure to Hire

- best interest of employer to articulate reasons for not hiring someone even thought it is not federally mandated - if individuals make decision to leave - to prove lack of discrimination

Race and Interviews

- black applicants suffer more "abuses" like wait times during interviews

Venue Recruiting

- conducting recruiting at a university or high school - must be caution to attract diverse applicants in locale that is either purposefully or accidentally uniform

How to determine whether there is adequate evidence of whatever charge has ben against the employee

- depends on reliability and weight of evidence - proof in support of charges

Action Oriented Programs

- develop and implement internal auditing systems that periodically measure effectiveness of their affirmative action plan - require internal reporting on a scheduled basis to the degree to which equal employment opportunity and organizational objectives are attained - review report results with all levels of management - advise top management of the program's effectiveness and submit recommendations for improvement

What can employers not do under the Federal Employee Polygraph Protection Act of 1988?

- directly or indirectly require, request, or 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 of any job applicant or current employee - discharge, discipline, discriminate against, or deny employment or promotion to any prospective or current employee who refuses to take or submit to a lie detector test or who fails such test

What questions are prohibited in the application process?

- disability - specific health inquiries - workers compensation history

How to determine whether the penalty chosen is appropriate

- discriminatory discipline - proportionality of penalty versus employee conduct

Examples of Misstatement

- if an employer who wishes to maintain a male-dominated workforce may intentionally present an excessively negative image of the position or company in effort to persuade females not to apply - if all candidates are offered the same information it is NOT discrimination - but if ONLY FEMALES receive this discouraging outlook = discrimination

Voluntary Affirmative Action: Big Questions

- if the AA plan involved private rather than state action - If the plan involved a workplace rather than a University Admissions program - Whether voluntary affirmative action plans are permissible rather than those required by Exec. Order 11246

Neutral Solicitation

- important to fashion process to encourage diverse applicants ex) bus boy or recent college grades --> not inviting - should invite applications from all groups and should not suggest

Employment Record Disclosure Acts

- insulate an employer from liability as a result of offering a good-faith reference to a previous employee - may not be sued as long as there is good-faith belief in the truth of the statement made - impact is to allow employers who previously offered only neutral references to provide an actual evaluation of the worker's performance without fear of liability - evaluation should be job related and not violate worker's civil rights

Methods to Conduct Performance Appraisals

- management by objective - checklist system - summated scale

Options to adequately check on applicant's references to insulate from negligent hiring liability

- may contact reference in person, by telephone, etc. and request general statement about whether information stated in application/interview is correct - contact with previous employer can be more specific - may undertake independent check of credit through credit reporting agency, criminal record, driving record, etc.

3 Possible Corporate Approaches for testing employees for ineligibility

- may establish mandatory testing that requires all employees to be tested for drug/alcohol use - implement probable cause testing where an employer tests employees only if there is suspicion for ineligiblity and testing is implemented for the purpose of discovering a safety, conduct, or performance problem - employers may implement random testing

Integrity Tests

- measure a wide variety of constructs like honesty/integrity/propensity to steal, etc. - difficult to validate

Employee disputing the performance appraisal also may prove a case using the disparate treatment analysis

- member of a protected class - suffered an adverse employment decision as a result of a performance evaluation - was actually qualified to perform the responsibilities of the position - was replaced by someone with similar qualifications who is not a member of a protected class

What is availability NOT based on?

- mere presence of women and minorities in a geographic area - must actually be qualified for the job

Problems with Checking Applicant's References

- most employers are willing to verify employment of past employees but obtaining this limited information may not necessarily satisfy the standard of care required to avoid a claim of negligent hiring - certain information is not available to employers and is protected by state law (state that doesn't let you see criminal arrests) - can claim disparate impact where you can show one of these protected classes are arrested more than others - Fair Credit Reporting Act requires employers notify applicant in writing of its intention to conduct an investigative consumer report and that it informs the applicant of the information it seeks - Reference and background information gathering process is lengthy and can be unmanageable - Employers may not be willing to offer an further information in fear of defamation

Criterion Related Validation

- most traditional type of test validation is criterion-related/empirical statistical validation - test must be shown to accurately predict job performance as evidenced by ability to do job - collects data relating to job performance from a simulated exercise or other on the job measures of performance

Construct Validation

- most useful when test scores are considered measures of a psychological characteristic such as reasoning ability, introversion, leadership behavior, etc. - construct must be shown to be important for job performance through careful job analysis - construct should be well defined, should be distinguished from other constructs, and should specify how the construct relates to other variables

What does the Office of Federal Contract Compliance Programs specifically regulate?

- only employer's participation in federal government contracts - contains no provisions for private lawsuits by employees - employees seeking redress must do so through their state's fair employment practice laws

Are medical examinations prohibited?

- only prior to the offer to protect against wrongful discrimination based on discovered disability - employer may not reach an employment determination on the basis of a disability where applicant/employee is otherwise qualified for the position with/without reasonable accommodation

Things employers have done to maximize valuing diversity

- organize workplace affinity groups such as for gay/female/Hispanic employees - include diverse actors in advertising - hold workshops for high potential diverse employees - institute formal procedures to handle complaints from diverse employees - closely monitor the progress of diverse employees

Reasons for eligibility test

- position requires a unique skill for which the employe wishes to test applicants - ensure applicants meet a minimum standard to satisfy requirements of position

What must contractors and subcontractors agree to under Executive Order 11246?

- post in conspicuous places available to employees and applications notices provided by contracting officer setting forth the provisions of nondiscrimination clause - include in all the contractor's solicitations or advertisements for employees a statement that all qualified applications will receive consideration for employment without regard to race, color, religion, gender, or national origin - include a statement of these obligations in all subcontracts or purchase orders will be binding - furnish all information and reports required by the executive order and the implementing regulations and permit access to contractor's books, records, and accounts

Examples of penalties for noncompliance

- publishing names of non-comforning contractors or labor unions - recommending to the EEOC or the Department of Justice that proceedings be instituted under Title 7 - requesting that the attorney general bring suit to enforce the executive in cases of actual or threatened substantial violations of the contractual EEOC clause - recommending to the Department of Justice that criminal proceedings be initiated for furnishing false information to a contracting agency or Secretary of Labor - canceling, terminating, suspending the contract for failure of the contractor to comply with nondiscrimination provisions of contract - debarring the noncomplying contractor from entering into further government contracts until the contractor has satisfied the secretary that it will abide by the provisions of the order

Federal Employee Protection Act of 1988

- puts an end to polygraph use in selection and greatly restricts its use in many other employment situations

Disparate Treatment

- raters are often influenced by physical or other traits or attributes such as national origin, age, accent

Management by objective

- requires manager and employee to jointly set objectives that must be met within a specified time period - if the goal is not reached by the deadline as agreed the employee's performance is deemed unsatisfactory

Summated Scale

- requires supervisors to indicate how often the employe satisfies each of several behavior based statements both desirable and undesirable

What is one way employers can safeguard themselves from defamation suits?

- should be voluntary - should allow the former employee to discuss waiver with attorney - should include employee's agreement not to contest his termination or content of personnel file

Underrepresentation

- significantly fewer minorities or women in the workplace than relevant statistics indicate are available - or their qualification indicate they should be working at better jobs

Defamation in Performance Appraisals

- states false and defamatory words concerning the employee - negligently or intentionally communicates these statements to a third party without the employee's consent - thereby subjects the employee to harm or loss of reputation

Eligibility Testing

- tests an employer administers to ensure the potential employee is capable and qualified to perform the requirements of position - also used to determine who is MOST capable among applicants

What employers does affirmative action not apply to?

- those with 50 or more employees who have contracts with federal government to provide government with goods or services worth 50,000 or more - covers about 20% of workforce

Prima Facie for invasion of privacy

- unreasonable intrusion upon his/her seclusion - appropriation of their name - unreasonable publicity of private facts

Wygant vs Jackson Board of Education

- upheld the concept of affirmative action - protects against layoffs for public employees

Three Elements when evaluating Just Discipline

- whether employee has received due process - whether there is adequate evidence of whatever charge has been against the employee - whether the penalty chosen is appropriate

What should workplace substance abuse programs incorporate?

- written abuse policy drafted after input from employees - supervisory training program - employee education and awareness program - access to an employee assistance program - drug testing program where appropriate

Regents of the University of California v Bakke

-Affirmative action in medical school admissions - court struck down University's affirmative action plan because it set aside a certain number of places for disadvantaged students - not fair to have disadvantaged group have additional spaces open to the that were not available to others

Advertisement Discrimination

-If an employer advertises in a newspaper that is circulated in a neighborhood that has extremely high Asian populations with very few others represented --,< can expect almost all of its applications from Asians and a few other groups = disparate impact ex) Recent college grads and age

Drug-Free Workplace Act

-authorized drug testing of federal employees under certain circumstances - required govt. contractors w/ contracts of 100,000 or more to publish statement about act, establish drug free awareness program, and give each employee copy of their workplace policy - Pre-employment screening of job applicants and testing as a part of a rehab program are allowed by the act

Fair Credit Reporting Act and References

-requires employer to obtain written authorization to obtain the report - if employer plans to take an adverse employment action based on report, it must notify the employee of reporting agency and give notice so they can get a free copy and dispute if wanted

Why use nepotism?

-some employers rely on this to locate appropriate candidates - theorize if mother and firm are good fit --> daughter may also work out well - low cost and creates homogenity

2 Reasons HIV testing in workplace is inappropriate

1) For a test to be justified it must serve a legit business purpose 2) Employer may not take adverse employment action against employee based on knowledge that individual is HIV positive

Minimum Contract Threshold for Jobs for Veterans Act of 2002

100,000

How is an eligibility test legally validated as an effective gauge of performance?

An employer must show that the test is job-related and consistent with business necessity ex) showing test scores can be used to determine appropriate and meaningful inferences about probable job-related behavior

Example of Negligent Hiring

Applicant for truck driving position had criminal record for rape and sexual misconduct but no driving violations --> applicant stated on application that he had no prior criminal convictions --> employer verified statement about traffic offenses but didn't investigate the criminal convictions --> applicant was hired and while on a scheduled work route he picked up hitchhiker and raped her --> victim sued employer for negligent hiring since employer was shown to be aware truck drivers pick up hitchhikers but neglected to ensure truck drivers were harmless

Example of Misrepresentation

Applicant is told by employer at time they are hired that they will automatically receive raise at 5 moth interview and based on this the applicant accepts offer --> she would be able to sue employer for misrepresentation that induced her to take job

Sheet Metal Workers v EEOC

Can affirmative action plans benefit individuals who were not the actual victims of the employer's discriminatory practices? ---> yes! as long as individual fits into the category of employees the plan was designed to benefit

What happens once quantitative part of affirmative action is in place?

Contractor must develop action-oriented programs designed to correct them

Title 7 of Civil Rights At of 1964

Contractor will not discriminate against any employee or application for employment because of - race - color - religion - age - national origin

What happens if a federal contractor does not follow affirmative action policy under Executive Order 11246?

Debar

T/F Quotas are allowed

FALSE

Personality Tests

Face Validity- a test that looks well suited to it's purpose

HIV

Humman Immunodeficiency Virus --> virus that causes AIDS

Recruitment and Discrimination

If employees are denied access to employment opportunities on basis of membership in a protected class, they have a claim against the potential employer for discriminatory practice

If a test has been validated according to strict validation standards what happens if there is a disparate impact?

If it has been validated Title 7 does not prohibit it's use even if a disparate impact is present

Preferential Treatment v Affirmative Action

Preferential Treatment- a preference offered to members of a certain class that is not offered to members of other classes Affirmative Action- provides for the most equal opportunity possible to members of various groups historically not having been provided equal opportunity and MAY INCLUDE PREFERENTIAL TREATMENT, education programs, education programs, etc.

When are medical examinations allowed?

Medical Examinations subsequent to the offer of employment but prior to the actual employment are allowed for the purpose of determining whether an employee is liable to perform the job for which they have been hired ex) job offer is made CONDITIONAL on drug test, medical examination, etc.

What does the OFCCP make judgement based on when making compliance determination?

NOT just whether contractor's affirmative action goals are met - nature and extent of affirmative action activities are crucial - both statistical and non-statistical information

Mediation

Neutral/third party has no power to impose solution but can work with parties to facilitate their discussions so parties can agree upon whatever solution they determine is appropriate

When is affirmative action used?

ONLY when there is DEMONSTRATED underrepresentation or a finding of discrimination

Who enforces Executive Order 11246?

Office of Federal Contract Compliance Programs in Employment Standards Administration Office of Department and Labor --> extensive regulations implementing executive order

Example of employer hiding bits of information

President of Company has reputation for being unpleasant --> employer solicits application for general admin position with duties to be assigned later KNOWING hiree will spend majority of time with President --> person applies for job and states he would like the position and is glad he is not the assistant to the president position --> hired and even though he has excellent offer from another company for more money he takes this job bc he likes the work environment --> he is later told he will be spending a large part of his work day with President --> could sue for misrepresentation

In what areas are affirmative action hotly debated?

Presidents (opposed) vs Federal Agencies responsible for enforcement - Employers saw these public disagreements and were confused about what they were required to do

4/5ths rule

Presumption of discrimination where selection rate of protected group is less than 80% of selection rate of the non-minority group

Quantitative v Qualitative Aspects of Affirmative Action Plans

Quantitative- examines contractor's workplace to get a snapshot of who works there and in what capacity Qualitative- sets out a plan of action for how to address any underrepresentation, underutilization

What do placement goals not equal?

Quotas

What happens when a performance appraisal system has a disparate impact on a protected class?

Subjected to high scrutiny by the courts

T/F After acquired evidence of misstatements is admissible to show the court that whether or not the employer had unlawful reasons for the action it also had legal justification for the action

TRUE

Uniform Guidelines on Employee Selection Procedures

When a selection test has been shown to have an adverse impact on a protected class the guidelines identify three approaches to gathering evidence of validity

Who has gained the most affirmative action?

White women

Does the Drug Free Workplace Act apply to private sector employers?

YES

Affirmative Action Plan

a government contractor's plan containing placement goals for inclusion of women and minorities in the workplace and timetables for accomplishing the goals

Polygraph

a lie detecting device that measures biological reactions to individuals when questioned

What is differential validation that the EEOC has considered validation of?

a test not only must be valid for overall population to be tested but also must be valid for each separate minority subgroup

How are Affirmative Action pans set forth?

according to rules in Code of Federal Regulations

AIDS

acquired immune deficiency syndrome - Individual's immune system ceases to function properly and during which the individual is susceptible in most cases fatally to opportunistic diseases

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

Where is the second place an employer's liability in connection with reference checks can arise from?

an ex-employee's won mouth through self-publication - when the reason for termination is defamatory (based on false accusations) then courts have held that self publication can satisfy the prima facie requirements of defamation since employee was compelled to publish defamatory statement to a third person and since it was forseeable to the employer that the employee would be so compelled to repeat the basis for termination - recognized in a minority of statements

Typical Arbitration Agreement

any dispute/claim concerning employee's employment will be settled by binding arbitration - usually entered into at the beginning of the employment relationship or part of the pre-employment process

Resume Collection Concerns

applicant is not defined by government so employers should do so to be safe

Disparate Impact: Uniform Guidelines on Employee Selection Procedures

apply to tests and other selection procedures which are used as the basis for employment decision

Why do people engage in Voluntary Affirmative Action?

as a protective measure to avoid discrimination claims after making a determination that there is an underrepresentation of minorities and women in the workplace - Strict guidelines that must be followed if the plan is to withstand a reverse discrimination challenge by an affected employee alleging discrimination

What are placement goals based on?

availability in geographic area

How do employees progress within their employment organization?

by meeting the employer's expectations and doing so in an exemplary way

Reverse Discrimination

claim brought by majority member who feels adversely affected by the use of an employer's affirmative action plan - someone not in the excluded group alleges they are harmed by the employer's consideration of race or gender or both in hiring or promotion decisions

Examples of tests to ensure individual is free of problems that would ensure individual is free of problems that would prevent her/him from performing the position's functioning

drug, alcohol abuse, and other impairments that can limit an applicant's ability to perform

Examples of Ineligibility Tests

drug, alcohol, polygraph

Reckless/negligent infliction of Emotional Distress

employee can show employer's intrusion into employee's private affairs constitute intentional extreme, outrageous conduct

Voluntary Affirmative Action

employer decides to institute an affirmative action plan on their own regardless of whether the employer is required to do so under the executive order and despite the fact that no one has brought a Title VII case

Performance Appraisals for Individuals with Disabilities

employer is not required to lower quality or standards to accommodate an employee with disabilities but it must do what is possible to enable employee to perform their essential responsibilities while not subjecting itself to undue burden or hardship

Example of Performance Appraisal Defamation

employer makes a false statement during course of employee evaluation and evaluation is transmitted to a third party like a future employer, the employee may have a claim for defamation

Job Related Requirement

employer must show that the specific trait for which the applicant is being tested is job related

Word of Mouth Recruiting

employer obtains new employees from referrals from within workforce

Who must comply with Executive Order 11246?

employers who contract with the federal government to provide goods and services of 10,000 or more

Corporate Management Compliance Evaluation

evaluations of mid and senior level employee advancement for artificial barriers to advancement of women and minorities --> addresses glass ceiling

Validation

evidence that shows a test evaluates what it says it evaluates

How does a polygraph work?

examiner asks structured set of questions and subject is evaluated honest/deceitful - has been criticized because other catalysts other than dishonesty may produce similar effects

What is the most effective and efficient method to ensure appropriate treatment of disciplinary action?

factually and completely document each action taken

Negligence

failure to do something in a way that a reasonable person would have done the same thing - failing to raise one's standard of care to the level of care that a reasonable person would use in a given situation

Executive Order 11246: Contractors

for certain contracts it requires that contractors who have underrepresentation of women and minorities in their workplace agree to take steps to ensure adequate representation

Example of liability for not giving reference

former employer had to settle after sending an incomplete referral letter that neglected to mention the former employee had been fired for bringing a gun to work

What is geographical area defined as?

from which contractor usually seeks or reasonably could seek workers to fill positions in question

What kinds of physical tests are not appropraite?

general tests of fitness ex) sit ups or lift weights - not relevant to job - BUT can require applicants to drag hoses, open fire hydrants, climb ladders, etc.

Fair Labor Standards Act

guaranteed a minimum wage that could lift employees out of poverty

Social Media

has become a new way to get background info but can be scary if they are basing it on things they find based on marital problems, age, medical problems, plans to start a family, etc.

Underutilization

having fewer minorities or women in a particular group than would reasonably be expected by other availability

Background Check

how employer finds what is contained in application and what is said during interview are true and whether there is additional information that might be relevant to person's employment

Purpose of Performance Appraisal

identify characteristics the employer hopes the employee will accentuate and to dissuade the employee from exhibiting characteristics not in keeping with the organize

When are nepotism policies illegal?

if court determines it has adverse impact on a protected class --> if so it will be illegal unless business necessity

Standard for Non-Compete AGreement

if it is greater than necessary to protect the employer's legit business interests or if the promisee's need is outweighed by the hardship to the promisor and likely injury to the public

How is evidence of validity obtained?

if there exists a systematic relationship between criterion and test scores

Why are background checks important?

important to ensure there is no information that if discovered would disqualify the applicant from employment or could subject employer to dangerous situation

Availability

minorities and women in a geographic area who are qualified for a particular position - important to establish a benchmark against which the demographic composition of the contractor's employees can be compared in order to determine whether barriers to equal employment opportunity may exist within a particular job group

Job Analysis

information regarding nature of work associated with a job and the knowledge, skills, and abilities required to perform that work ex) a test of general math would be allowed to be a cashier even though it might have a disparate impact on a certain protected class

Examples of Eligibility Tests

intelligence tests, physical stamina, eye examines

Affirmative Action

intentional inclusion of women and minorities in the workplace based on a finding of their previous exclusion

Defamation

intentional tort involving publication of false statements about another

Genetic Testing

investigation and evaluation of individual's biological predispositions based on presence of specific disease-associated genes

What could happen if an employer chooses not to provide reference information on prior employees?

it could face liability for injuries to the prospective employer who sought the reference or even third parties

What did the Glass Ceiling Commission find?

it was easier for women and minorities to enter a business at entry level than to progress up once there

Valuing Diversity

learning to accept and appreciate those who are different from the majority and value their contributions to the workplace

State Employment Law Regulation: Recruitment

many states have enacted legislation specifically aimed at expanding federal statutes ex) many states have human rights acts that include in their protections that prohibits against discrimination based on marital status or affinity orientation

Standard for Negligent Hiring

measured when employer knew or should have known worker was not fit for job

Why do contractors take affirmative action?

to ensure applicants are employed and treated during their employment without regard to these

Physical Ability Tests

used to increase likelihood that candidates will be able to perform the essential physical functions of the job in question

How did politicians take advantage of Affirmative Action?

using depiction of whites being fired from jobs in order to hire African Americans --> illegal under law but fed into constituent's fears

Standard of Care in Negligent Hiring

what would be exercised by a reasonable employer in similar circumstances - if an employer had no means by which to learn of a dangerous propensity or if discovery of this information would place a great burden on the employer a court is more likely to deny a claim for negligent hiring

Negligent Supervision

when an employer fails to adequately oversee activities of an employee who threatens violent conduct

Walk-In Applicants

when company is constantly receiving unsolicited applications - strategy is effective in locating employees and reducing costs of formal recruiting, reputation might attract one type of employee

Negligent Hiring

where an employee causes harm that could have been prevented if employer had conducted a reasonable and responsible background check on an employee

Second Reason Performance Evaluation can be considered false

where rater does not include information that would explain or justify a poor appraisal like the fact that the poor task completion rate was due to a slight disorder which has been corrected