Employment Law Final

Defense by an employer in regards to a claim of discrimination in the disciplinary process

1) a clearly defined disciplinary process ideally provided to the employee upon hire 2) counseling for job related infractions only 3) factual written documentation regarding the issue

Steps in the recruitment process

1) advertise the position vacancy 2) establish preliminary contact with potential job candidates 3) perform an initial screening to identify all qualified candidates 4) preliminary interviews are coordinated with human resources 5) in-depth interviews are held with hiring manager (ability to actually hire you)

3 things must prove to qualify for bona fide occupational qualifications

1) applicants being excluded can not perform the essential functions (main duties) of the job Can not use small increases in cost or lost efficiency to justify a BFOQ 2) Factual basis for believing that all, or almost all of the applicants being excluded can not perform the essential functions of the job. Employer would need to conduct evaluations of all applicants' abilities to perform the job or risk not being covered by a BFOQ 3) by discriminating is the only way to achieve the stated objectives.

6 Step Selection Process

1) completion of application 2) interviewing 3) testing 4) reference checking 5) physical examination 6) final analysis and decision to hire or reject candidate

Management issues related to discipline

1) critical for employees to know the expectations of their job 2) never assume an employee knows what is expected of them 3) make the discipline process as positive as possible 4) managers should view themselves coaches rather than disciplinarian 5) Begin with informal counseling sessions to improve behavior early on prior to escalating to formal counseling 6) important to place the responsibility on the employee for improving the behavior

Statutes dealing with the employer-employee relationship fall into 4 categories

1) discrimination (department of justice, office of civil rights) 2) pay issues (most sensitive) 3) safety and health issues (OSHA) 4) Labor relations (Department of labor)

Pitfalls to avoid in performance evaluations

1) don't ask an employee to do their own evaluation 2) don't allow a manger to copy from the self evaluation 3) insure there is narrative to go along with ratings and examples are cited for all ratings 4) a good review should take 2-4 hours per employee

Interview should try to explore what four domains?

1) education/experience 2) intellectual skills 3) interpersonal skills 4) motivation skills

For implied contract exception, courts have used a variety of both written and oral documents as a basis for finding a contractual obligation which supersedes the employee at will doctrine

1) employee handbooks 2) personal manuals 3) statements made by hiring managers/recruiters

Performance review tips (5 things)

1) employee should never hear about positive performance if they need improvement 2) the first step is goal setting 3) make how you will evaluate the employee's performance clear 4) provide feedback, conversation is key 5) be honest and direct

Statues background

1) enforced by government agencies 2) identifies what agency has authority 3) failure to comply risks, fines, and imprisonment

Three significant legal issues confronting mangers

1) equal pay, 2) part time vs. temporary workers (issues surround the ongoing use of these categories of employees on a semi-permanent basis, don't have to pay benefits or overtime) 3) labor-management relations (unions representation for healthcare workers is on the rise, especially in nursing

Discrimination overview

1) federal statues detail precisely what factors are not permitted to used in making employment decisions 2) states can not try to limit the prohibitions against discrimination provided by federal statues 3) statues can extend prohibitions to other groups 4) employee must file a complaint of discrimination within 300 days of the event

Why do we have performance appraisals?

1) guide upon which to make employment decisions 2) promotions 3) transfers 4) compensation increases 5) provides a "score card" for employees 6) documentation supporting termination if necessary

Managerial Issues Related to Pay

1) how should salaries and wages be determined 2) how should we determine wage increases from a budget and perspective (who gets what)

Exceptions to employment at will

1) implied contract exception 2) public policy exception 3) promissory estoppel 4) constructive discharge 5) implied covenant of good faith

Three main aspects to the hiring process which can potentially raise legal issues

1) interviewing 2) testing 3) reference checking

3 categories of reasonable accommodation

1) modification or adjustments to a job application process that enables a qualified applicant with a disability to be considered for a position such applicant desires 2) modification or adjustment to the work environment or in the manner or circumstances under which the position held or desired 3) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by it's other similarly situated employees without disabilities

Disciplinary Policy Provide (5 things)

1) oral warning (documentation) 2) first written warning 3) second written warning (HR) 4) suspension 5) termination. Termination of employment must show it occurred as a result of performance issues, not discrimination

Role of Pay

1) pay can be a motivator and demotivator but usually falls in demotivator category due to other circumstances 2) pay demotivates if employees perceive they are not being paid fairly in comparison to co-workers or others within/outside the organizations for comparable work 3) pay functions as motivator for short-term/defined period of time and motivates to seek next pay raise 4) employees surveys show appreciation by organization being included in decisions and valued input above pay

Interviewing must dos

1) plan ahead 2) create a good climate 3) conduct a goal oriented interview 4) avoid questions that may imply discrimination

Most issues involving wrongful termination or discrimination focus on four primary areas

1) policy not being followed 2) not job related issues 3) poor documentation 4) knee jerk reaction by a manager to a specific situation

What needs to be accomplished in the hiring process?

1) posting the job with the correct information, handling, and organizing the applicants and resumes 2) conducting interviews 3) performing background checks 4)checking references 5) evaluating all of the information about the different candidates

Key points that should be included in the disciplinary process

an explanation to the employee of exactly what behavior has to change and if possible how to change the behavior, an opportunity for the employee to change their behavior, and an explanation to the employee of the consequences should they fail to change the behavior

Case Law

law made by judges. A judge issues a finding it is referred to as an opinion. Compilation of opinions comprise case law. Allows lawyers to somewhat predict the potential outcomes based on case law published and indexed by subject

Statute

laws passed by legislation, set forth general propositions of law that courts apply to specific situations. 1) may forbid a certain act 2) may direct a certain act 3) make a declaration 4) set forth government mechanisms to aid society

Promissory estoppel

legal theory if one party makes a promise on which the other party reasonably relies and the first party then reneges to the other party's detriment then the promise will be enforced. Ex. Employer offers job, candidate accepts and resigns, prospective new employer reneges the job. The court traditionally enforce the job offer. It is important to make sure it is clear who within the organization has the authority to make an offer of employment

Can statues be changed?

legislature can repeal and amend. Courts can interpret thus effectively changing them

Initiating a lawsuit

two parties 1) plaintiff (employee, initiated the lawsuit) 2) defendant (employer who is being sued)

Hiring Basics

unlike terminating, disciplining, or even making the tough decision of which employee to promote, hiring should be purely rewarding. "best way to handle problem employees are to never hire them in the first place"

Stare Decisis

"let the decision stand", the policy of courts to abide by or adhere to principles established by decisions in earlier case. Once a court has answered a question, the same question in other cases must elicit the same response from the same or lower courts in that jurisdiction

Types of Drug Testing

-Pre-employment -the employer tests everyone that might be offered a position -Random -Randomly selecting employees for drug testing -Reasonable cause -The resting is done when the employer has reasonable cause to believe an employee might be using drugs -Post accident -For loss of life, injuries to other/self or moving traffic violation as soon as practicable, within 8 hours for alcohol and 32 hours for drugs -Return to Duty -Employee is required to provide a specimen to insure the employee drug-free before returning to work -Follow-up -Employee is tested at random intervals after returning to work to insure that the employee remains drug-free Courts favor pre-employment and reasonable cause testing

Wrongful termination

employee is claiming that they were unjustly fired (harm) by the employer. All wrongful termination cases are based upon legal doctrine (the employment at will doctrine)

Signs of Impairment - substance abuse

-prefer night shifts -changes jobs frequently -falls asleep during meetings and has trouble focusing on work -anxious to work overtime or extra shifts -Can be moody or isolated -likes less supervision and more access to medication -incomplete charting and practice errors

7 elements in performance evaluation

1) Performance evaluations based on job requirements 2) notice to employees to performance standards which they'll be evaluated 3) notice to employees of the relative weights being attached to the various performance standards in their job description 4) description of performance standards in behavioral terms 5) whenever possible involve multiple evaluators, difficult to reduce the risk of possible discrimination 6) documentation of ratings based on observable, objective evidence, courts want to see documentation explaining ratings, especially very high and very low scores 7) establish an appeal process

Sexual harassment falls into two categories

1) quid pro quo: unwelcome sexual activity in exchange for some job benefit. Must show the sexual conduct was unwelcome, he/she rejects such advances, and the terms or conditions of his/her employment were then adversely affected 2) hostile work environment: sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment

Wage Determination (4 systems employers use to determine wages)

1) ranking 2) paired comparison 3) point factor 4) market pricing

6 substantive recommendations for legally sound performance appraisals

1) should be objective 2) should be job related 3) should be based on behavior rather than traits 4) should be within the control of the employee 5) should relate to specific functions not global assessments 6) should be communicated to the employee

As a manager, to defend against a suit of wrongful termination you must show that:

1) there were performance issues 2) they were documented and discuss with employee, 3) the organization policy was being followed regarding performance improvement and discipline

3 things all employees want

1) to have their work and input valued 2) to be included on things happening in the organization 3) to be appropriately compensated

3 options for reviewing applications

1) unqualified 2) possible 3) probable

EEOC defines sexual harassment as...

1) unwelcome sexual advances 2) requests for sexual favors 3) other verbal or physical conduct or sexual nature constitutes sexual harassment when a. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment b. submission or rejections of such conduct by an individual is used as the basis for employment decisions affecting such an individual c. such conduct has the purpose or effect of unreasonably interfering with an individuals work performance or creating

Protective Steps for Employers

1) written anti-harassment policy and complaint procedure (have a mechanism for reporting and resolving complaints, must be available to the employee without undue risk, should be posted and distributed on a regular basis) 2) prompt and impartial investigation (should investigate all allegations of harassment fairly and objectively, evidence is information obtained from interviews which may include witnesses, maintain strict confidentiality of those harassed and those who came forward as witnesses) 3) taking appropriate disciplinary action (strict disciplinary action must be promptly taken against the harasser, show the victim that the organization cares to stand up for the employees rights, is not tolerated in the organization) 4) management training (train supervisors to insure they understand the seriousness, help managers identify behavior that could lead to claims of sexual harassment, sensitivity training, educate!)

3 phases of recommendations (discipline process)

1st Phase - The emphasis is on counseling. 2nd Phase - The manager writes a performance improvement plan (no preprinted forms). 3rd Phase - time off, then termination if no changes are made

Public law

A statutory basis to the complaint. Deals with the relationship between the government and private parties. Government agency files a complaint and in effect becomes the employees legal counsel. Easy for employee to bring action without cost. Government agencies can dismiss the case if they do not feel there is a violation. Act as "gatekeepers". Employee can continue to pursue on their own

Fair Labor Standards Act of 1938

Also known as the Wage and Hours Bill, established minimum wage, guaranteed time and a half for overtime in certain jobs, an prohibited most employment of minors in oppressive child labor, a term defined in the statue and record keeping requirements affecting full time and part time workers in the private sector and in federal, state, and local governments. It is enforced by the US Department of Labor. Pay raises are not required by the Fair Labor Standards Act. does cover that workers by paid no less than time and one half the employees regular rate for time worked over 40 hours in a workweek.

Exceptions of Discrimination

Bona Fide Occupational Qualifications: limited exception to Title VII discrimination laws allowing organizations to hire employees based on their religion, gender or national origin, color, etc. where those factors are "reasonably" necessary to the normal operation of that business or enterprise

When do you terminate an employee?

Chronic poor attitude Poor interpersonal skills Negative effect on others Poor performance documentation Negative or no reaction to counseling Outside negative input Detrimental effect on the organization Regressive patterns, trends and habits

Torts

Civil wrong, or wrongful act, whether intentional or accidental, for which injury (harm) occurs to another. Include all negligence cases as well as intentional wrongs which result in harm. Most frequent tort: wrongful termination. Also the tort which courts have affected the most over the past 40 years.

Civil Service Reform Act Title VII of 1978

Clarifies the right of government employees to join and be represented by labor unions

Progressive Discipline Steps

Counseling Notes Performance Improvement Agreement Decision-making Leave Termination of Employment

Sexual Assault

Courts look for sever and pervasive

2 primary statues dealing with substance abuse

Drug-Free Workplace Act -Applies to Federal contractors with government contracts of $25,000 or more and federal grantees -Intent is to provide a drug-free workplace by requiring employers to publish drug-free personnel policies and conduct drug awareness programs Americans with Disability Act of 1990 -A disability is defined as; • A physician or mental impairment that substantially limits one or more life activities • A record of having such an impairment • Being regarded as having such an impairment -Drug and alcohol addition are disabilities which are covered by ADA. Current use of illegal drugs is not covered -The Act also provides that employers have an affirmative obligation to make reasonable accommodation for a disabled applicant or employee if it will permit him to perform a job he otherwise could not perform

Reasonable Accommodation and undue hardship

EEOC limits reasonable accommodation to the following: job restructuring, job performance, leaves, modification or part time schedules, modified work place policies, reassignments

Overtime

Exempt vs. nonexempt (FLSA defines a nonexempt as: an hourly paid employee who must be paid overtime for any worked hours in excess of 40 in a work wee. Can not be given compensatory time to be carried into a different week

How to terminate an employee

Explain documentation Recap performance Get to the point Have a witness with you Allow a monologue Get closure Prepare an exit letter Communicate with your staff Fill the position quickly

FTE

FTE-1.0=2,080 hours, what a full time employee uses for budget

Breach of contract

Failing to perform any term of a contract, written or oral, without a legitimate legal excuse. Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific preference" of a contract

Goal of performance evaluations

Goal is to make the performance process as objective as possible and to reduce/neutralize the subjective ability of the evaluator

Reasonable Women Standard

If a reasonable women would feel that the alleged misconduct is severe and pervasive enough to create an offensive hostile and intimidating work environment thereby altering the terms and conditions of her employment, preventing her from focusing on her duties and from feeling safe and secure in the workplace then the alleged misconduct should be viewed as sexual harassment.

The Wagner Act of 1935

Protects employees by recognizing their rights to join unions and engage in union activities (allowed to vote, only need a simple majority)

Taft-Hartley Act of 1947

Protects employers from unfair labor practices by unions and allows workers to decertify unions (if a group of employees think the union isn't doing their job, can have unions removed, helps the organization)

Important concepts Managers need to know (overtime)

Overtime (nonexempt when you work an hourly wage vs. exempt-member of management team), hours worked, equal work

Equal Pay Act of 1963

Passed which amended the FLSA to make it illegal to pay workers lower wages strictly on the basis of their sex. Established single standard of pay for both sexes. Work only when wages are set pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production

Wrongful termination and employment at will doctrine

Since employers can fire whenever they want, employees can leave anytime they want for any reason they want. Employees without contracts have a very difficult time proving wrongful termination

Wrongful termination definition

Terminating someone's employment on unjustifiable grounds, the discharge of the employee must have been without "cause". Most frequent tort employees use to sue employers is wrongful termination. All wrongful termination cases are based upon one legal doctrine, the employment-at-will doctrine

Equal Employment Opportunity Commission

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of a person's race, color, etc. It is illegal to discriminate against a person because the person complained about discrimination

Legal issues in discipline

The courts provide a significant amount of information as to what is required around the discipline process yet very few states have statues prescribing a specific discipline process for employees. *Cases regarding discipline end up in the courts for 2 reasons traditionally 1) discrimination 2) wrongful termination

What is collective bargaining?

The process of negotiating, administering, and interpreting labor contracts

Massachusetts Commission Against Discrimination

The state's chief civil rights agency. The Commission works to eliminate discrimination on a variety of bases and areas, and strives to advance the civil rights of the people of the Commonwealth through law enforcement, outreach, and training

What do labor unions do?

They are organizations to which workers belong that deal with employers on the workers behalf. Unions act as bargaining agents negotiating legal contracts that affect most aspects of human resources management

Paired comparision

each position is compared to every other position and one that brings most value is ranked and paid the most

Labor Contracts identify what?

Wages, work hours, work rules, seniority (teachers union), hiring, grievances

Issues to be aware of as a manager with termination

Written documentation of oral warning must be in place to insure given For 2nd warning, suspension and termination you should have a Human Resource representative present Give a copy of all performance improvement issues to the employee Never state "HR is making me do this or give this to you" Treat all employees the same - fairly Follow the policy - always!

Recruitment

a set of activities designed to attract a qualified pool of applicants to an organization

Fringe benefits

additional non-wage or non-salary forms of compensation which makes up 30% of earning

Areas of concern regarding discrimination

age, race, color, sexual orientation, veteran status, disability, marital status

Rankings

all positions ranked by value to an organization, determined by employer and based on experience, knowledge, skills, work conditions, highest ranking paid the most

Employment at will doctrine

allows employers to terminate the employment at any time for any reason. This is still used today. We changed it by addressing issues like : 1) seeking legal resources through legislature 2)both state and federal legislature passed statues

Negligent Hire Tort

an employer must use due care to avoid the selection or retention of an employee whom he or should know is a person unworthy, by habits, temperament or nature to deal with persons invited to the premises

FLSA defines an exempt employee as

an executive, administrator or professional employee, making more than $250 per week, meeting the following: administrative (employees must have positions which relate to management policies the exercise of discretion and independent judgement. Executive (employee must direct the work of two or more employees) Professional (employees must have positions which require several years of specialized education usually at a college level. A bachelor's degree doesn't guarantee the position will be defined as exempt

Examples of bona fide occupational qualifications

authenticity, bus drivers, airline pilots for safety reasons, catholic church, female/male locker rooms. Cannot be based on coworker/customer preferences

Implied contract exception

based on the premise that there is an implied contract between the employer and the employee, which the employer by firing the employee has broken.

Implied covenant of good faith

based on the theory that in the employment relationship, there is an implied promise that they employer and the employee will deal with each other fairly. usually resolves around bonuses and commission to be paid out

Massachusetts MGL's prohibit discrimination in the following:

borrowing, education, employment, job applicants, public establishments, tenants and homebuyers

Mass Commission Against Discrimination: guidelines

confirmed that casual comments, sporadic, or infrequent conversation will generally not constitute sexual harassment. This is true because such conduct is usually insufficient to create a pervasive, hostile, intimidating, or offensive work environment. Must affect the psychological well being of the complaint

Private law

deal with the relationship between private parties. Employee sues the employer directly, no government agency involved. Must be legal theory behind suit. One of the two basis theories must be employed 1) breach of contract 2) commission of a tort

External vs. internal recruitment

external: look outside the organization, brings a fresh perspective with specialized expertise Internal: look within the organization, usually less expensive, can give preferential treatment

Constructive discharge

fundamental element of every wrongful termination case is that the employee was fired by the employer. Employers often believe that if they can get the employee to resign they have protected them, at a minimum, from being sued for wrongful termination. Employees who resign can still sue under the theory of wrongful discharge by arising that they were constructively discharged. Ex, make working conditions horrible so they quit

Managers need to be trained on how to conduct a performance evaluation to determine:

how to develop, how to deliver, how to reward, how to retain

Bonsuses

incentive based compensation tired to performance and goals

Point factor

positions evaluated against factors, each assigned a number of points and position with most points is highest ranked, most paid

Market pricing

salaries for positions determined by what organizations pay for similar positions, operates independently, most use hybrid model to use various pay strategies

Public policy exception

should not be able to fire employees for reasons which are so outrageous as to be objectionable for public policy reasons. Examples: discharge for exercising a legal right (jury duty), discharge for reporting or refusing to engage in illegal activity, refusal to perjure (whistleblower)

Discrimination

to note or distinguish as different. Observe a difference. Separate a group of people because they are different than us. Unfair discrimination is unfair treatment of an individual's membership in a particular group