Chapter 3

Why labor law exist?

-Disproportional power between employees and their employers. -Focus on fair treatment of employees and at some instances preserve the rights of employers as well -In general, encourage employers to focus on individual qualifications rather than unrelated characteristics for the job.

Who Pass legislations?

-The Congress - Passes Bills to become Acts (Federal Laws). -The President -Executive orders. -State Legislators - Pass Bills to become Acts (State Laws). -Local Governing Bodies (counties, municipalities, townships...etc.) - (Local Laws).

An employer has fired John after two months of his absence. His absence was due to his recall to serve in the National Guard for at least six months. The employer might have violated which of the following acts? A.Uniformed Services Employment and Reemployment Act B.Fair Labor Standards Act C.Family and Medical Leave Act D.Vietnam Era Veterans Readjustment Assistance Act

A

White firefighters in Boston claim that minorities with lower than minimum required test scores were hired. They are charging that they have been the victims of discrimination. This type of discrimination is known as A.Reverse Discrimination B.Disparate Selection Discrimination C.Reverse Preference Discrimination D.No type of discrimination addresses this issue

A

•Prohibits discrimination against individuals age 40 or older- including recruitment, promotions, layoffs and pay raises. •Employers might prefer younger workers or/and try to avoid paying retirement benefits. •Age might be deduced from the years of service and cannot be used in employment decisions.•Applies to employers with 20 or more employees •You can offer early retirement, but cannot force it. •Amended by Older Workers Benefit Protection Act (OWBPA) - allows limited use of age as basis for reducing benefits as long as cost of benefits are still equal to cost of providing benefits for younger workers •The importance of this act escalated due to the aging population trend and older workers have high skill levels, strong work ethics, commitment and loyalty, and motivation for challenging work.

Age Discrimination in Employment Act of 1967 (ADEA)

Process for resolving disputes among employees and employers using mediator or arbitrator.

Alternative Dispute Resolution (ADR)

•Prohibits employers from using disability as basis for discriminating against qualified individuals •Requires reasonable accommodation unless doing so causes undue hardship •Disability - physical or mental impairment that substantially limits one or more major life activities •Reasonable accommodation- making modifications to work environment so person otherwise qualified can perform essential functions-Restructuring jobs, modifying work schedules, acquiring or modifying equipment, increasing the accessibility and usability of facilities...etc. •Essential function- job task, duty, or responsibility that must be done by person in a job •Isolate all medical information and ensure confidentiality.

Americans with Disabilities Act of 1990 (ADA)

Jorge has worked for a company for five years as a full time employee. He and his wife are adopting a child. Your company has 80 employees in the location where Jorge works. Under the Family and Medical Leave Act, Jorge is eligible for A.Leave only if you have a specific company policy that provides leave for adoptions. B.Up to 12 weeks of unpaid leave if he requests prior approval.This answer is correct. C.Up to 12 weeks of paid leave if he requests prior approval. D.Leave only if he has unused vacation and sick days.

B

A __________ exists when a protected classification can legally be used to make employment decision.

Bona Fide Occupational Qualification (BFOQ)

Over the past six months, Omar was being subjected to frequent comments about his religion by his co-workers. He had asked them to stop and even reported them to his supervisor (who did nothing). Omar is experiencing a _______________________________ work situation. A.Disparate Impact B.Retaliation C.Hostile Environment D.Mixed Motive

C

What does EEO stand for? A.Equivalent Employment Opportunity B.Equal Employment Operation C.Equal Employment Opportunity D.Equivalent Employment Operation

C

•Clarifies burden of proof in disparate impact cases •Addresses rights of U.S. employees working abroad •Prohibits race norming - employers cannot adjust employment-related tests based on race, religion, gender or national origin to give minority groups an advantage. •Eliminates use of mixed-motive defense in disparate treatment cases - thus mixed motives will hold the employer guilty. •Allows jury trials and damage awards - including emotional damage and other anguish - not to exceed $300K.

Civil Rights Act of 1991 (CRA 91)

An example of disparate (adverse) impact would be A.Hiring only women without children when men with and without children are hired. B.Refusing to promote a male employee because the hiring manager thinks that his mannerisms are too feminine and would turn off his male clients and cohorts. C.Using a selection test that always results in only men being selected for the job. D.Using a selection test that results in considerably more men being selected than women.

D

Employment decisions/ actions that are not job-related, objective or merit-based are considered to be __________ discrimination. A.Rational. B.Power. C.Authoritative. D.Unfair.

D

Janice, Ian, Peter, and Andrew all applied for a job as the Maintenance Supervisor at a manufacturing plant. Janice had the most experience and met all of the qualifications for the job. However, she was turned down for the job. Peter, who had three years' lesser experience than Janice was hired. Janice can make a prima facie case of A.Disparate Impact. B.Hostile Environment. C.Sexual Harassment. D.Disparate Treatment.

D

Resolving EEO complaints by using an arbitrator or mediator is known as A.Alternative Labor Resolution B.Equal Opportunity Conciliation Compliance C.Federal Complaint Compliance D.Alternative Dispute Resolution

D

Which act guarantee equal opportunity for individuals with disabilities or perceived as having disabilities? A.National Labor Relations Act of 1935 B.Fair Labor Standards Act of 1938 C.Equal Pay Act of 1963 D.The Americans with Disabilities Act (ADA) of 1990

D

•Prohibits use of genetic information for making employment decisions •Includes genetic tests (for the employees and their families) and information about family medical history •Do not ask for or acquire genetic information about applicants or employees. Sometimes you might have access to such information, ensure isolation and confidentiality.

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

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

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

T or F: Companies use the INS Form I-9 to document that their employees have a legal right to work in the United States.

True

T or F: Disparate treatment occurs if an organization makes an employment decision based on the applicant's race, religion, national origin, color, sex, disability, or age were different.

True

T or F: Employment laws and regulations exist because organizations typically have more power than employees do. Group of answer choices

True

T or F: Reasonable accommodation means that an employer is required to take reasonable steps to accommodate a disability unless it would cause undue hardship to the employer.

True

T or F: The Equal Pay Act allows for difference in pay because of different levels of performance.

True

T or F: Under employment-at-will, an employee has a right to quit his/her job at any point in time and employers has the right to terminate an employee for no reason or any reason.

True

•The employer might be required to change the policy or procedure to accommodate religious groups, or prove that alteration will cause _______________. •___________________: situation that exists when accommodating an employee would put the employer at a disadvantage financially, or would otherwise make it difficult for the employer to remain in the business and competitive. •Religion can be used a BFOQ.

Undue hardship

•Purpose: to ensure civilians (non-career military such as reserves or national guard) called for active duty can keep jobs when return from military assignment. •Protects them from discrimination as applicants or employees, when it comes to initial employment, reemployment, retention, promotion and other benefits. •Can be absent for up to five years.

Uniformed Services Employment and Reemployment Act (USERRA)

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

Vietnam Era Veteran's Readjustment Assistance Act

•Public policy exception -Examples: retaliation, violation of professional ethical standards, pressuring employees to commit illegal acts. •Implied employment contract -Anything implied through the written and verbal contracts or policies - implying conditions for termination or promises for continuous employment. •Implied covenant of good faith and fair dealing -What if a company promised an employee a bonus and fired the employee just before the bonus allocation? Has the company done that to avoid paying the bonus?

Wrongful Discharge

________________ is the process of actively seeking to identify, hire, and promote qualified members of underrepresented groups. •Exists due to -Compliance with EO 11246 -Goodwill -Consent decree (Court order) •Involves -Conducting utilization and availability analysis -Identifying goals and timetables -Developing and implementing an action plan •AAP result in more diversity at the workplace. -Some argue that diversity helps in creativity, access to markets, innovation, variety of perspective...etc. -Others argue that AAP might cause reverse discrimination -Reverse discrimination:members of protected group receive preference in employment decisions, resulting in discrimination against non-protected group

affirmative action

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

business necessity

_____________ is treating people differently in employment situations because of characteristics such as race , color, and gender, that have nothing to do with their ability to perform a particular job. -Permissible discrimination -Illegal discrimination

discrimination

Employment practice results in members of protected class being treated less favorably even though discrimination was not intentional. •Focuses on the consequences of employers' practices rather than motivated treatments. •Plaintiff should demonstrate that the employment practice outcome was less favorable for his or her protected class than the majority. •The employer should demonstrate that there is a valid - job related - reason for its employment practice. •Unintentionality is not an acceptable defense in a desperate impact case.

disparate impact/adverse impact

________________ is ensuring that applicants and employees are not illegally discriminated against.

equal employment opportunity

_____________ is when there is legitimate reason for employment decision exists but decision was motivated by illegitimate reason. • Courts have ruled that discrimination has occurred.

mixed motive

_______________ are demographic characteristics that cannot be used for employment decisions -Sex -Race -Religion -Color -National origin -Age -Disability (physical or mental) -Veteran status -Pregnancy -Genetic information •Some laws specify which group is protected within a classification such as age. •Others do not specify such as gender.

protected classification

_________ is treating individuals differently in employment situations Because of membership in protected classification (Protected Class). •Employees who believe that they were a victim of intentional discrimination must make a prima facie case (preliminary case), using the McDonnell Douglas Test. •For example: -Individual is member of protected class -Was qualified for and applied for job (or other employment opportunity) -Was rejected -Someone else got job or employer continued to seek applicants •After establishing a prima facie case, the burden of proof shifts to the employer to provide a legitimate job-related reason for the decision.

Disparate treatment

Must follow U.S. EEO laws unless doing so violates law of country in which employees are located (foreign law defense) •Non-U.S. companies doing business in U.S. must abide by U.S. EEO laws •They might be able to discriminate when it comes to preferring to recruit its own nationals for certain positions due to a bilateral treaty between the U.S. and that foreign country or other binding international agreement.

EEO and Multinational Employers

•Might take the form of harassment, disparate treatment or disparate impact, resulting from: -Treating applicants or employees differently in employment situations because of their ancestry, ethnicity or accent. -Treating applicants or employees differently in employment situations because they are married to someone from a particular nationality. -Assuming someone is from a particular national origin because of physical, linguistic or cultural traits associated with an ethnic group.

National Origin Discrimination

__________________________ regulatory agency responsible for developing guidelines and overseeing compliance with executive orders.

Office of Federal Contract Compliance Programs (OFCCP)

•Prohibits discrimination because of pregnancy, childbirth, or related medical condition •Employer must treat pregnancy same as any other medical-related condition or temporary disability - that includes providing reasonable accommodation and healthcare benefits •Company health plans cannot exclude pregnancy

Pregnancy Discrimination Act of 1978 (PDA)

•Although much progress has been made, the number of race-based harassment charges has been increasing lately. •Among others, employers should not: -Use race or race-related characteristics and conditions to make employment decisions. -Tolerate the harassment of employees because of their race or color. -Segregate employees based on race or color -Collect pre-employment information about race to make it available for the ones involved in the hiring decisions. -Dismissing employees due to their association with someone of a different race.

Race and Color Discrimination

___________________ is taking adverse action against employee who has filed discrimination complaint •Often comes in form of punishment or threat of punishment •Examples: -Denying promotions of qualified employees -Demoting employees -Suspending employees -Negative performance evaluations -Threatening employees

Relatiation

•Also, religious discrimination is either occurring more often or reported more often. •One explanation is the increased religious diversity in the USA. Also, the recent wars. •Direct religious discrimination might result in a disparate treatment charges. •Indirect discrimination - resulting from work policies & processes - might result in disparate impact.

Religious Discrimination

•Provides employers right to terminate (or hire or transfer) employees at any time as long as doing so is not illegal •Allows employees to quit their jobs at any time or for any reason

Employment-at-Will

___________________________ a regulatory agency responsible for developing guidelines and overseeing compliance with most of the anti-discrimination laws.

Equal Employment Opportunity Commission (EEOC)

Amendment to Fair Labor Standards Act (FLSA)-1938, which established minimum wage, overtime pay, recordkeeping, and youth employment standards •Gender cannot be factor in paying employees •Must pay males and females equally if performing jobs substantially equal in terms of skill, effort, responsibility, working conditions •Pay differences allowed for merit, seniority, quality or quantity of production or other non-gender related factors •Employer must prove that the stated reason for pay differences is allowable affirmative defense •Gender pay gap still exists! -Women later entry to the workforce -Women taking time out to get and raise children -Gender differences in negotiating compensation -Percentage of women in traditionally female jobs -Ongoing gender discrimination

Equal Pay Act of 1963

Prohibits discrimination based on race, color, religion, sex, national origin, sexual orientation, or gender identity •Requires affirmative action programs from federal contractors and subcontractors. •Requires federal contractors with 50,000 or 50 or more employees to have an affirmative action plan. The federal government can withhold payments based on the contractors' noncompliance.

Executive Order 11246 (EO 11246)

T or F: Affirmative action requires that employers establish hiring goals to reach predefined quotas of various demographic groups, and then provide evidence that they met those goals.

False

T or F: National origin and disability can never be used as BFOQs.

False

T or F: The EEOC is responsible for developing guidelines and overseeing compliance with executive orders.

False

T or F: U.S. residents working abroad for a U.S. company are not covered by Title VII of the Civil Rights Act.

False

Employers with 50 or more employees in 75-mile radius must grant up to 12-weeks unpaid leave for -Employee's own illness-Birth, adoption, or foster care of child-Care of sick member of immediate family •Employees must have worked for the employer for at least 12 months and for 1,250 hours proceeding the beginning of the leave. •If caring for a wounded soldier, the leave is extended to 26 weeks. •Except for key employees, employers have to provide the same or equivalent job (pay and duties).

Family and Medical Leave Act (FMLA)

1.Contact local EEOC office 2.EEOC reviews evidence and decides if enough evidence to investigate or attempts to settle with employer 3.If settlement, conciliation or mediation unsuccessful, EEOC may take case to court 4.Individual has 90 days to file lawsuit if EEOC decides not to pursue

Filing Discrimination Charge

•Is a guideline generally accepted by the courts and the EEOC for making a Prima facie case of desperate impact .•Is percentage of minorities selected equal to at least 80 percent of percentage of non-minorities selected? -Yes, no evidence of disparate impact -No, evidence of disparate impact

Four-Fifths Rule

Direct discrimination might be the result of stereotypes. Gender-plus Discrimination occurs when an employee would have been treated differently if it had not been for that employee's gender and its associated responsibilities. Mixed motives might occur as well. Sexual harassment: unwelcome sexual favors, and other verbal and physical conduct of a sexual nature. Quid pro quo (something for something) harassment Hostile environment sexual harassment Same sex harassment

Gender Discrimination

____________________ is subjecting employees to unwanted and unwelcomed treatment because of membership in protected class.•Examples include: offensive jokes, unwelcome comment, improper graffiti, physical threats...etc. •Creates hostile environment; severe and abusive harassment.

Harassment

•Attempt to control unauthorized immigration •Must verify all employees hired have legal right to work in U.S. •Employees complete INS Form I-9 •Should be completed after a job offer •Employers who violate are fined

Immigration Reform and Control Act of 1986 (IRCA)