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Chapter 2 topics - legal impacts of staffing

Employment Relationship

Employer-employee
Independent contractors
Temporary employees

Employer-Employee

Rights of Employer:
specify the expected results
specify the work methods
Responsibilities of Employer:
withhold payroll taxes
pay taxes
follow various employments laws and regulations
liable for the actions of the employee
Employment-at-Will

Independent Contractor

Rights of Employer:
loses ability to specify how and when work is done
Responsibilities of Employer:
does not have to withhold payroll taxes or pay taxes
reduced exposure to employments laws and regulations
Misclassification
FLSA - employment relationship must be distinguished from a contractual one

Temporary Workers

Employee of staffing agency, assigned to client
Co-employment
"Perma"-temps
Mediating risk

Need for Laws and Regulations

Balance of power
Protection of employees
Protection of employers

Sources of Laws and Regulations

Common law
court made
Constitutional law
derived from the Constitution
Statutory law
Written statutes
Agencies (federal/state)

EEO Laws

Civil Rights Act
Age Discrimination in Employment Act (ADEA)
Americans with Disabilities Act (ADA)
Genetic Information Nondiscrimination Act (GINA)

Summary of EEO laws

Illegal to discriminate against someone due to: race, color, religion, sex (including pregnancy), national origin, age (40+), disability or genetic condition
Forbids discrimination in every aspect of the employment relationship
Illegal to retaliate due to a claim

Disparate Treatment

Involves allegations of intentional discrimination where employer knowingly discriminated on basis of specific characteristics
Evidence
May be direct
May consist of a mixed motive
May be inferred from situational factors

Disparate Treatment - Situational factors

1. Person belongs to a protected class
2. Person applied for, and was qualified for, a job employer was trying to fill
3. Person was rejected despite being qualified
4. Position remained open and employer continued to seek applicants as qualified as person rejected

Disparate / Adverse Impact

Focuses on effect of employment practices, rather than on motive or intent underlying them
As a result of a protected characteristic, people are adversely affected by an employment practice

Civil Rights Act of 1964

Unlawful employment practices
Establishment of disparate impact
Disparate treatment
Mixed motives
Bona fide occupational qualification (BFOQ)
Testing
Test score adjustments
Seniority or merit systems
Employment advertising
Pregnancy
Preferential treatment and quotas

Age Discrimination in Employment Act (1967)

Prohibited age discrimination
BFOQ
Factors other than age
Seniority systems
Employment advertising

Americans with Disabilities Act (1990)

Prohibited discrimination
Definition of disability
Physical and mental impairments substantially limiting a major life activity
Qualified individual with a disability
Essential job functions
Reasonable accommodation and undue hardship
Selection of employees
Medical exams for job applicants and employees
Affirmative action

Genetic Information Nondiscrimination Act (2008)

prohibits the use of genetic information in employment process confidentiality in genetic info required.
ex of information:
individual genetic tests or tests of family members
health conditions of family members

Rehabilitation Act (1973)

Federal contractors
Prohibited discrimination
Affirmative action

Executive Order 11246 (1965)

Federal contractors
Prohibited discrimination
Affirmative action

Immigration Reform and Control Act (1986)

Purpose
To prohibit employment of unauthorized aliens
To provide civil and criminal penalties for violations
Prohibited discrimination
Employment verification system -- I-9 form
Temporary foreign workers
Enforcement

Fair Credit Reporting Act (1970)

Purpose
Regulates organization's acquisition and use of consumer reports on job applicants
Required compliance
Before obtaining a report, organization must
Give applicant notice in writing a report may be obtained
Obtain written authorization from applicant
If an "adverse action" is taken, organization must
Notify (written, oral, electronic) applicant of adverse action
Provide information of consumer reporting agency to applicant
Provide notice of applicant's rights to applicant
Enforcement
Enforced by Federal Trade Commission
Noncompliance may result in fines up to $1,000

State/Local EEO/AA laws

Often patterned after federal laws
Basic provisions vary from state to state
Often provide protections beyond those contained in federal laws and regulations

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