HRMN 5460 Exam 2

Explain EEOC requirements for using criminal history screens in employment - use of arrests versus convictions, targeted screening, and individualized assessment

EEOC requires that rejection of applicants based on criminal history be job related and business necessity: Three methods: - Validation studies showing criminal behavior related to job performance or work behaviors - screening is targeted based on: nature of job, nature of crime, time elapsed since conviction - federal laws requiring rejection (security, clearances)

Explain the requirements under the American with Disabilities Act regarding pre-employment medical inquiries

- Employers must refrain from seeking medical information from all applicants, disabled or not. o However, an employer who is concerned about a job candidate's ability to do a job is permitted to ask that candidate to demonstrate how he would do the - employers that desire medical information from job candidates should seek that information only after job candidates have been conditionally offered employment based on their other qualifications.

Explain concerns of discrimination for protected classes in conducting criminal background checks. What is the "ban-the-box" movement?

ban the box - a movement to ban questions regarding criminal convictions on the application blank It is designed to reduce discrimination against those with criminal histories - don't reject first look IT doesn't prohibit criminal background checks, just places them later in the process - usually after conditional offer of employment It can actual increase racial biases against African Americans - referred to as statistical discrimination

public policy

courts look to this as an indication that a particular type of employment is sensitive and calls for greater care in hiring

Explain how courts make comparisons between the demographic composition of the employer's workforce and the relevant labor market

data to identity the demographic composition of relevant data markets can be obtained from special databases created by the Census Bureau in collaboration with the EEOC if the applicant pool contains a much smaller percentage of women than the percentage of women in the area workforce who are qualified and work as electrical engineers, that would be evidence of discrimination in recruitment/UNDERUTILIZATION

reckless disregard for the truth

displaying an intent to falsify

qualified privilege

an immunity from liability that is conditional rather than absolute

malice

an intent to harm a persons reputation

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

Applicant

any person who indicates an interest in being considered for an employment opportunity

consent

any request for a reference accompanied by a written "release information" form that is signed by the former employee and that grants permission to communicate information about the employee

consumer credit report

any written, oral, or other communication of any information by a consumer reporting agency on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for employment purposes

Explain best practices which employers should follow to avoid discrimination claims in the application process

- Establish an application policy and adhere to it consistently. The application process should be the same for everyone seeking the same job. - if applications are being accepted, no individuals wanting to apply should be discouraged from doing so - Application forms and any other records produced in the hiring process must be kept for at least a year from when a hiring decision is made. - employers are also required to maintain records regarding the protected class characteristics of applicants for such purposes as tracking progress in affirmative action and determining whether selection devices (e.g., employment tests) have disparate impact

Explain when affirmative action is required of employers.

- Government contractors under o Executive Order 11246 This executive order requires companies with contracts worth at least $10,000 to have a nondiscrimination clause in their contracts. Contractors are required to abide by the terms of this nondiscrimination clause, which means complying with Title VII nondiscrimination requirements. All facilities of contract firm must comply, not just the facility doing the contract work Must also include that clause in their contracts with subcontractors, who must also abide by it. o Rehabilitation Act of 1973 - covers individuals with disabilities o Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) - affirmative action for veterans was originally enacted to address the problems of soldiers returning from the Vietnam War, but now reaches a much broader group of veterans including those with service-connected disabilities, "campaign veterans" who served on active duty during wars or other military campaigns, armed forces service medal veterans, and veterans discharged from the military within the previous three years o Compliance with E.O. 11246 and these other laws requiring affirmative action by contractors is monitored by the Office of Federal Contract Compliance Programs (OFCCP). OFCCP collects workforce data from employers, conducts compliance reviews, and can initiate lawsuits Contractors with ≥ 50 employees and $50,000 must develop written affirmative action plans Has the power to suspend, cancel, or terminate contracts or bar companies from bidding on future contracts - rarely used. - when employers are required to engage in affirmative action is when a discrimination suit results in a settlement or court order that includes affirmative action as a remedy. o In 2 ways affirmative action that arises out of legal proceedings can be imposed either as a remedy following a determination by a court that an employer has engaged in a serious pattern or practice of intentional discrimination consent decree which is a judicially approved settlement between the parties - A company may also develop an affirmative action plan voluntarily - must comply with certain legal requirements

Describe best practices for conducting background checks to avoid negligent hiring claims

- No particular measures are required, but employers should always follow the procedures that they have designed - be especially wary of rush, last-minute hiring decisions - Inconsistencies and gaps in information provided by applicants must be reviewed and investigated with applicant - 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

Explain the requirements for using credit history under the Fair Credit Reporting Act. These would also apply to criminal history checks

- The employer must inform the applicant that a credit report will be obtained and get the applicant's approval in writing (authorization must be separate from employment application) - If the employer receives negative information which "may" result in adverse action, it must notify the applicant with "pre-adverse action disclosure" (include a copy of the consumer report, a copy of a summary of your rights under the fair credit reporting act, provide opportunity for person to explain or dispute information - If the employer does take adverse action, must give applicant "adverse action notice" (explain reflect because of report, contact information for consumer reporting agency, agency didn't make hiring decision, right to formally dispute information with agency)

Explain how various recruitment methods can unintentionally result in discrimination

- Wants ads and job announcements o Are posted in one area who targets one class of people o If it suggest waitress which can discourage men from applying o f that is all the employer does to get the word out about an employment oppor-tunity, it is likely to produce discriminatory effects - Employment agencies o Employers must not request that employment agencies refer only employees with particular protected class characteristics, nor should they attempt to obtain through employment agencies information about protected class characteristics of referrals that it would be improper for them to obtain directly - Nepotism o relatives are most often of the same race or national origin, nepotism results in hiring people who are similar in certain protected class characteristics to the people who already work in the company o Employee Referrals, Word of mouth hiring, Nepotism Unless workforce is already diverse, tends to recruit similar employees o Word of mouth the threat to equal employment opportunity posed by word-of-mouth recruiting stems from the fact that people tend to associate with others who are like them, especially in terms of race

Describe concerns in the use of social media for recruiting and screening applicants.

- can bias employment decisions every bit as much as if employers had specifically requested the information (not hire someone based on what is posted on socisl media) - giving login credentials to employers

Describe reasonable HR actions for affirmative actions

- communicate availability of jobs widely - develop relationships with religious organizations, community development groups, schools, and cultural organizations that can refer targeted groups - adjust the geographical scope of recruiting - use internships and summer jobs to identify qualified individuals in targeted groups - work with training institutions to diversity pool with needed skills - establish or maintain facilities in communities with substantial minority populations

Explain requirements of employers under the Immigration Reform and Control Act (IRCA) to include requirements in verifying employment eligibility (I-9 forms) and records retention requirements. See Ketchican Drywall Services v. Immigration & Customs Enforcement.

- employers are prohibited from knowingly hiring or retaining unauthorized aliens - Employers with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship for all newly hired workers, within 3 days, the employer must verify employment eligibility by completing federal I-9, which requires certain documents including: driver's license, birth certificate, US passport, Resident alien registration card, unexpired employment authorization document and others employers are encouraged to use E-verify, an electronic program permitting employers to verify the eligibility of potential employees

Describe the steps employers can take which would be considered legal and acceptable for voluntary affirmative action plans.

- must have developed a written affirmative action plan - must address a "manifest imbalance" in the protected class composition of the employer's workforce (underutilization) - must be moderate, flexible, and gradual in its approach - must be temporary - must not continue after underutilization has been eliminated - must not unnecessarily trammel employee's right or create an absolute bar to their advancement - consideration of protected class characteristics as one variable in evaluating qualified applicants

Explain EEOC requirements for recordkeeping in the recruitment and application process

1 year from position announcement - current employer 1 year after they left - whichever is longer

Explain the elements of a claim for fraud or negligent misrepresentation in employer statements. (Spears v. Amazon 2013)

1. A false representation of a material fact was made to another person. 2. The party making the statement knew that it was false at the time that it was made (or had reckless disregard for the truth). 3. The party making the statement intended the other person to rely on the false representation and to act or refrain from acting in a certain way. 4. The other person was, in fact, induced to act or refrain from acting. 5. The other person was harmed by reliance on the false representation.

Internet Applicant

An individual who expresses an interest in employment via the Internet or other electronic data technology

Negligent Misrepresentation

An intent to falsity or reckless disregard for the truth

Nepotism

Favoritism to family members and other relatives results in hiring people who are similar in certain protected class characteristics to the people who already work in the company.

Investigate report

Any written, oral, or other communication similar to a consumer credit report but based on personal interviews with friends, neighbors, or other associates

What information is typically collected in background checks

Checking references verifying past employment and military service confirming necessary degrees, licenses, or other credentials checking credit reports checking criminal records reviewing candidates' social media or other online persona

What are the defenses to defamation claims?

Consent: employers might require that former employees sign a written release of information form, granting permission to communicate information about him An alternative is to negotiate with the employee a letter of reference Qualified Privilege (conditional immunity): protection 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 - smart practice to speak only to those with a need to know

Explain the three main components required in affirmative action plans - self-analysis

Determine whether employment practices result in adverse impact or disparate treatment or previously excluded or restricted groups or leave uncorrected effects of prior discrimination Includes: organizational profile, job group analysis, documentation of the protected class characteristics of employees, identification of problem areas self-analysis- Determine whether employment practices result in adverse impact or disparate treatment or previously excluded or restricted groups or leave uncorrected effects of prior discrimination o A method of self-analysis is not specified but includes An organizational profile Job group analysis Documentation of the protected class characteristics of employees Identification of problem areas o The analysis is done at the individual establishment - each location of the company. o There should be a quantitative analysis of the workforce o An organizational profile portrays staffing patterns in the organization Can provide this information in either an organizational display or workforce analysis

Describe questions which should be avoided in pre-employment inquiries to avoid discrimination

Employers should not directly inquire about protected class characteristics - asking age, whether US citizen Employers should not directly inquire about protected class characteristics - date of graduation, memberships, workers compensation claims filed, employers who want to track protected class characteristics for affirmative action purposes may do so by a voluntary report process - employers should not directly inquire about protected class characteristics o Employers that need to track the protected class characteristics of their applicants for affirmative action purposes can do so by providing a voluntary reporting mechanism that is separate from the application form or other materials used in hiring o For example, rather than ask for a candidate's age, the employer can ask whether she is at least 18 (or 21) years of age (which is necessary to perform certain jobs and does not discriminate against older workers). Similarly, rather than ask whether a job candidate is a U.S. citizen, it is preferable to ask whether, if hired, he will be able to verify his eligibility to work in the United States - employers should not indirectly inquire about the protected class characteristics of job candidates. o Examples of indirect inquiries include asking for an applicant's date of graduation from high school (age), asking for a listing of all organizational memberships (e.g., race, religion, and national origin), and asking whether the candidate has ever filed a workers' compensation claim for a workplace injury (disability) - employers should avoid questions about requirements or criteria that are not uniformly applied to job candidates o Applying different selection criteria to different protected class groups is disparate treatment - employers should avoid questions about requirements that have a high probability of producing disparate impact o Examples include questions about prior arrests, type of military discharge, and height and weight.

Describe the requirements of the various visa programs which employers use to obtain permission for foreign nationals to work in the U.S. (H-1B, H-2, L-1)

H-1B visas - are granted to persons in "specialty occupations" requiring a bachelor's or higher degree in that field. Typical occupations for recipients of these visas include systems analysts, engineers, architects, and accountant H-2B - - H-2 visas are for foreign nationals who come to the United States to perform work on a temporary or seasonal basis o must be supported by evidence showing that there are too few U.S. workers available, willing, and able to perform the work in question o that use of foreign nationals will not adversely affect the wages and working conditions of U.S. workers o H-2A visas are reserved for temporary workers in agriculture or logging L-1 visas (intracompany transfers) - L-1 visas, which are designed to allow multinational companies to temporarily transfer staff from foreign facilities or subsidiaries to operations in the United States o is no requirement that L-1 visa holders be paid at least the prevailing rate. o Companies using L-1 visa holders must station those employees at the companies' own facilities and retain ultimate supervisory authority over them, rather than contract them out to other employers. TN visas (highly skilled workers from Canada and Mexico)

Explain the three main components required in affirmative action plans - reasonable action

Identify goals for improvement, timetables for achieving the goals, goals should be reasonably attainable through good faith effort o Identify goals for improvement Benchmarks, not mindless adherence to numerical goals - NO QUOTAS o Timetables for achieving the goals o Goals should be reasonably attainable through good faith effort

Legal alien

Non-citizens who are eligible to work in the United States

Illegal alien

Non-citizens who are not eligible to work in the United States

Define affirmative action

Protective steps organizations take to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity

Pre-Employment Inquiry

Questions on application forms, during interviews, or in the course of informal chatting with job candidates divulging information about employees

Define reverse discrimination and types of affirmative action which is not acceptable to the courts (Gratz v. Bollinger, 2003).

Some employees go further and apply a preference for targeted groups to achieve affirmative action goals - this is legally problematic because it could result in reverse discrimination Reverse discrimination- cases is that an employer with an affirmative action plan hires a woman or person of color. A white male who believes that he should have received the employment opportunity instead then sues Courts do not allow affirmative action in the form of establishing quotas or reversing opportunities solely for persons with targeted characteristics, regardless of qualifications

overly broad publication

The conveying of information about former employees to people other than those who have a legitimate need for that information

Define negligent referral and explain best practices for employers when responding to reference requests. Is the employer under a duty to disclose negative information?

The employer gives incomplete information or misrepresent the work of a former employee - if the employee then harms others, the employer may then be liable for negligent referral If the employer chooses to give a reference, it must not be misleading the employer is not required to disclose negative information

knowledge of unfitness

The fact that the employer was aware, or should have been if proper screening procedures had been followed, that the person hired was unfit

Explain the three main components required in affirmative action plans -reasonable basis for taking action

The key to establishing a reasonable basis is underutilization (the percentage of minorities of women in a particular job group is less than would be expected considering) How large does the discrepancy have to be? - no single answer - 4/5th rules o Key to establishing a reasonable basis is underutilization The percentage of minorities or women in a particular job group is less than would be expected considering • The percentage of minorities and women with the required skills in the reasonable recruitment area - relevant labor market • The percentage or minorities and women among those promotable, transferable, and trainable in the contractor's organization - within the plan year o How large does the discrepancy have to be? No single answer, Supreme Court refers to need for evidence of a "manifest imbalance" Doesn't have to be to the point of meeting 4/5ths rule or two standard deviation rule for establishing discrimination

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 To determine whether discrimination has occurred, the firm's applicant pool will be compared to this

Identification of problem areas

The requirement that makes the self-analysis more dynamic by examining flows into and out of positions and the organization. It attempts to get at the question of why an employer's workforce looks the way it does benchmarks, not mindless adherence to goals

Describe precautions that employers should take in recruiting to ensure that their recruitment methods do not result in discrimination.

To pass court review, proactive steps may only be taken as part of a formal affirmative action plan - must have a plan 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 Employment agencies - may not discriminate on behalf of employer clients Want ads and job announcements o Requires a neutral message re job availability, which does not express or imply a preference for some protected class group over another o Post ads everywhere not to just one specific class of people o Title VII of the Civil Rights Act of 1964 is explicit about employers' obligation in producing such materials: It shall be an unlawful practice for an employer . . . to print or publish or cause to be printed or published any notice or advertisement related to employment . . . indicating any prefer-ence, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin . . . . 1 o employers using narrowly targeted outlets should use these in conjunction with other media that reach a broader spectrum of employees. - Employment agencies o May not discriminate on behalf of employer clients - Employee Referrals, Word of mouth hiring, Nepotism Unless workforce is already diverse, tends to recruit similar employees o Nepotism..... put a policy in place Follow title 7 law,,,,,,,, Nepotism is not per se violative of Title VII. Given an already integrated work force, nepotism might have no impact on the racial composition of that work force. * * * However, when the work force is predominantly white, nepotism and similar practices which operate to exclude outsiders may discriminate against minorities as effectively as any intentionally discriminatory policy.7

Gratz v. Bollinger, 2003

Undergraduate programs - 100 pt scale for admission score + 20 points to admission based on targeted groups courts struck this down because not looking at equally or better qualifications of people (not acceptable as a means of achieving affirmative action) Law school admissions - developed pool of qualified candidates + factor for individuals in targeted groups

Word-of-mouth recruiting

an essentially costless method of recruitment where employers depend on current employees to spread the word about jobs to their friends, family members, and other associates

Breach of Contract

a failure to live up to binding promises, regardless of intent

Fraud

a false representation of a material fact made to another person

Underutilization

a lower percentage of women or persons of color in a particular job group than would b expected based on their availability

Investigative Report

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

Good faith effort

a sincere effort

Define negligent hiring and explain the elements of a claim to show negligent hiring by an employer. (Navarete v Naperville Psychiatric Ventures 2012)

a. The employer gives incomplete information or misrepresent the work of a former employee. b. If they choose to not give a reference, no. But if they do, it must be truthful and not malicious or misleadingly positive

consumer reporting agency

an entity that regularly gathers or evaluates information on consumers to furnish reports to third parties

After-acquired evidence

evidence showing that there is another consequence to employee falsifications and omissions during the hiring process

defamation

false statements that reflect badly on a person, communicated to others, which results in damage to a person's reputation references, statements or information provided by a former employer which are false and result in damage to the person's reputation

Timetables

for achieving the goals

What can failure to check at least recent references can be evidence of ______

negligence in hiring

Goals

objective or target reasonably attainable through a good faith effort - NO quotas

Organizational profile to include organizational display and workforce analysis

portrays staffing patterns in the organization can provide this information in either an organizational display or workforce analysis

Medical Inquiry

questions about disabilities, medical and psychological conditions, medical histories, medications taken, and worker's compensation claims field

Describe legal consequences for employees if they provide false information or omit information on applications and resumes

termination, immediate dismissal and no due process - if you file a discrimination claim the EEOC and the courts will hold that as a legitimate motive for your dismissal

Foreseeability of harm

the ability to anticipate harm before the fact

proximity

the connection between events as they actually unfold

Job group analysis

the many individual job titles in a contractor's workforce are combined into a more parsimonious set of job groups

Recruitment

the process of creating a reasonable pool of qualified candidates for a job opening one of more ways in which an employer communicates information about the validity of an employment opportunity and persons interested in pursuing the opportunity make their interest known to the employer

adverse action

the requirement that employers obtain the consent of employees or applicants before seeking to obtain credit reports and provisions for prior and concurrent notice when denying an employment opportunity

What are the elements of a claim for defamation against an employer based on information provided in references?

to prevail in a defamation claim, the plaintiff must show that; 1. A statement was made that purported to be factual in nature 2. the statement was false or substantially false 3. the statement challenged the integrity, character, or ability of the plaintiff 4. the statement was "published" (communicated) either orally (slander) or in writing (libel) 5. there was harm to the reputation of the plaintiff

reverse discrimination

where employee believes he/she was passed over for an employment opportunity because of affirmative action