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44 terms

Chapter 7: Employment Law

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Statutes (Federal laws)
Start out as bills passed by Congress, signed by President; Collected in books called U.S. Code; Executive Orders - issued by President
Regulations
Rules issued by fed agencies; when Congress passes law they designate agency to interpret and enforce law; also fill in gaps not addressed in statute; regulations collected in Code of Federal Regulations (C.F.R.)
Court Decision
Opinions written by judges deciding outcome of lawsuit; judges interpret what the law means, which sets precedent; U.S. Supreme Court - dictates fed law; Court of Appeals/U.S. District Courts - binding only in states or regions that courts cover
When do Federal Laws Apply? 5 basic questions
Does your company have enough employees?
Is your company covered by law?
Is the employee covered by the law?
Do all of the law's provisions apply?
Is the situation covered by law?

State, local, and collective bargaining agreement - must be considered
Title VII - Civil Rights Act 1964
Prohibits employment discrimination based on race, color, religion, sex, and national origin;
Applies to prospective, current, and foreign nationals working for covered employer; even if national not authorized to work in U.S.
Title VII - Race
Protected Class - Race
An employment policy or practice that applies to everyone, regardless of race or color, can be illegal if it has a negative impact on the employment of people of a particular race or color and is not job-related and necessary to the operation of the business.

For example, a "no-beard" employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).
Title VII - Color
Protected Class - Color
Color discrimination involves treating someone unfavorably because of skin color or complexion.
Illegal to favor light-skinned employee over darker skin color, even if both employees AA/Black

Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person's connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.
Title VII - Religion
Protected Class - Religion
Law prohibits employers discriminating based on religion, requires employers to make allowances for a person's religious practices and beliefs
Can't refuse to hire someone because Jewish or promote / because Muslim
Within reason - work w/ employee to make it possible for employees to practice religious beliefs
Employers must accommodate unless cause business to suffer undue hardship
Title VII - National Origin
Protected Class - National Origin
Employers cannot make employment decisions based on:
Birthplace, ancestry, culture, native language, English language proficiency (unless affects ability to perform job), accent (unless affects ability to perform job), marriage or association w/ people of a national ethnic group., membership in or associated w/ ethnic cultural org., attendance or participation in schools, churches, temples, mosques or association w/ certain ethnic groups, name associated w/ certain ethnic groups
Title VII - Sex
Protected Class - Sex
Title VII prohibition protects women and men from discrimination and harassment based on gender
Includes decisions based on someone's failure to conform to gender stereotypes
Title VII - Discrimination
Discrimination includes:
Giving preferential treatment over others; treating some people worse than others based on membership
Harassing, physically isolating, segregating
Coding resumes or applications to indicate race, color, gender, national origin, or religion
Asking questions in interviews to elicit info
Making decisions based on stereotypes about people in a protected class
Treating people differently due to marriage or association
Title VII - Discrimination
Covers:
Private employers w/ 15 or more employees
Fed, state, local govt.
Private/public employment agencies
Labor org., joint labor/mgmt. committees
Title VII - Discrimination
Title VII outlaws both intentional discrimination and practices that have a discriminatory effect
Discriminatory effect of neutral employment practices called disparate impact - practice that seems neutral affects protected class in disproportionate, unfair way
Example - employer has minimum strength requirements employer could be discriminating against women
Employer has to show hiring practice clearly related to physical demands of particular job
Title VII - Harassment
Harassment - employees forced to endure work environment hostile, intimidating, or offensive because of their membership in protected class. Harassing includes:
Slurs, offensive jokes/remarks, drawings or pictures depicting protected class unfavorably, threats, intimidations, hostile demeanor, physical violence
Title VII - Harassment
The conduct must be unwelcome to the target of the harassment. "Unwelcome" means that the employee did not solicit or incite the conduct and regarded it as undesirable.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The harasser as well as the target can be a man or women.
Claimant does not have to be the person at whom the offense conduct is directed but can be anyone affected by conduct.
Title VII - Sexual Harassment
Type of gender discrimination; unwelcome sexual advance or conduct on job that is severe/pervasive; and creates intimidating, hostile, or offensive work environment; affects terms/conditions of victim's employment
Unwelcome sexual advances, fondling, requests for sexual favors, making sexual remarks/joke, sending emails, commenting on sex life, posting/sending porno
Harasser can be supervisor, manager, co-worker; can be a vendor or customer on premise with employee
Title VII - Sexual Harassment
Men and women can be harassers and victims - men/women, women/women, men/men
Quid pro quo - Latin term meaning "this for that;" refers to type of sexual harassment in which supv. demands sexual favors from subordinate in exchange for promotion, positive performance evaluation, or other job benefit,
Repetitive, unwelcome sexual conduct in the classroom/workplace that interferes with the individual's performance or creates an intimidating, hostile or offensive environment.
Title VII - Retaliation
Title VII prohibits employers from retaliating against those who complain or assert their rights under the law
Any action an employer takes against employee who has made complaint could be illegal even if not intentional;
Female employee complains supv. sexually harassing her; in response employer moves employee from day shift to night shift, so she does not have to work with supv.; even though org. trying to help, could be retaliatory if employee wanted day shift
Title VII - BFOQ (Bona fide occupational qualification)
Employers can discriminate against people based on gender, religion, national origin (not race or color) if nature of job requires them to
Bona fide occupational qualification exception - some jobs must be filled by people who have certain characteristics - even though law would normally prohibit employer from discriminating on that basis
Employer must prove policy is reasonably necessary to operation of business; essence of operation would be undermined; no reasonable alternative to policy
Affirmative Action
Refers to laws, policies, guidelines giving positive steps to hire, promote persons from groups previously, presently discriminated against
Just requiring non-discrimination does not qualify a affirmative action
Affirmative Action - designed to end existing discriminatory practices; backward-looking focuses on past discrimination
Preferential treatment - preferential policies that target groups historically/currently being discriminated
Affirmative Action
EEOC - responsible org that investigates, tries to rectify and as necessary files court proceedings against org. deemed to be practicing institutional racism
Courts still utilize preferential treatment as a vehicle to resolve present discrimination in the workplace
Contemporary thought - commitment goes beyond just providing equal opportunity but certain org. PROACTIVELY recruit, hire, develop promote qualified women, minorities, people with disabilities, veterans - understand business value - language of D&I
Age Discrimination in Employment Act (ADEA) - 1967
Prohibits age discrimination against employees and applicants age 40 or older
No rights for workers younger than 40
Employer not prohibited from favoring older workers
Applies to all aspects - hiring, firing, compensation, benefits, job assignment, transfers, employee classifications, promotions, layoffs/recall, training/apprenticeship programs, retirement plans, time-off
Age Discrimination in Employment Act (ADEA)
Applies to private employers w/ 20 or more employees; state/local governments, employment agencies, labor organizations
Covers multinational employer w/ operations in US/territories, unless treaty or binding contract; covers employers w/ operations in other countries if incorporated in US, based in US, or controlled by US company
Age Discrimination in Employment Act (ADEA)
Discriminatory practices:
Requiring workers to retire at certain age
Treating older works worse than younger workers
Providing younger workers better benefits -higher pay, assignment, more responsibilities
Making decisions based on stereotypes
Harassment practices:
Age-related slurs or offensive remarks, jokes about age
Cartoons, pics presenting unfavorable images
Threats, intimidations, hostility, physical violence
Age Discrimination in Employment Act (ADEA)
ADEA prohibits printing/publishing announcements expressing limitation on age - college student, youth, recent college grad run afoul of this rule; job applicants seeking applicants of particular age
Exceptions include firefighters, law enforcement officers/agents - federal, state, local set for 55 and older
Retaliation prohibited
Bona fide seniority system - allowable for employment decisions, even if older workers lose their jobs - reverse seniority does not qualify
Bona fide occupational qualification
Older Workers Benefit Protection Act - 1990
Passed in 1990; gives guidance to courts determining if benefits employers offer to older workers equal to benefits offered to younger workers
Prohibit age discrimination in provision of fringe benefits (life insurance, health insurance, disability benefits, pensions, retirement benefits)
Employers must provide equal benefits to older/younger workers; sometimes spending same amount equates to lesser benefits for older workers, if older workers receive addt'l benefits from employer or government
Americans with Disabilities Act (ADA)
Prohibit covered employers from discriminating against qualified individuals w/ disabilities
Requires employers to provide reasonable accommodation to qualified employees w/ disabilities
Effective Jan 2009 - ADA Amendments Act (ADAAA)-overturned decisions that interpreted ADA in very narrow terms; validated term disability to be interpreted broadly
Private employers w/15 or more employees
Employment agencies, labor org., joint labor/mgmt committees, local governments
Americans with Disabilities Act
ADA does not cover fed employees, but Rehabilitation Act of 1973 does
Covers multinational employers w/ operations in U.S./territories; covers employer w/ operations in other countries if incorporate in U.S., based in U.S., controlled by U.S.company; foreign nationals
Covers qualified individuals w/ disability - current, prospective employees, part-time, probationary; qualified for position; have a disability described under ADA
Americans with Disabilities Act - 1990
Prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities.
Restricts questions that can be asked about an applicant's disability before a job offer is made,
Requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship.
Prohibits discrimination against "qualified individuals with a disability"-person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job"
Americans with Disabilities Act
Disability:
"A physical or mental impairment which substantially limits one or more of life's major activities"
"communication, ambulation, self-care, socialization, education, vocational training, employment, transportation...with primary attention given to those life activities that affect employability"
"A record of such impairment"
"Being regarded as having such an impairment"
Americans with Disabilities Act
Reasonable Accommodation:
Employers must change job conditions, tasks, or requirements in order to allow otherwise qualified employees to do the job
This also includes the application process
But accommodation should not represent an "undue hardship"
Americans with Disabilities Act
Undue Hardship:

"Any accommodation that would be unduly costly, extensive, substantial, or disruptive or that would fundamentally alter the nature of the operation of the firm"
based on resources of individual site
decided on case-by-case basis
Americans with Disabilities Act
Essential Functions:
"Primary job duties that are intrinsic to the employment position"
time spent doing
criticality
ability of others to cover
Should be determined before hiring decision
Be sure to include "obvious" KSAs
Americans With Disabilities Act
Hiring Implications of ADA:
Determine essential functions
Remove recruitment barriers
Applicants may need to be accommodated
Treat applicants equally
Pre-employment medical exams only after job offer
Allow applicant to identify self as disabled
Accommodation of job requirements
Pregnancy Discrimination Act
Prohibits discrimination on basis of pregnancy, childbirth, and related medical conditions in employment, health insurance plans, disability insurance plans, sick leave plans
Covers private employers w/ 15 or more employees, federal govt., state, local govt., private/public employment agencies, labor organizations, joint labor/mgmt committees
PDA is part of Title VII; requirements and prohibitions the same as Title VII
Pregnancy Discrimination Act
If employee temporarily disabled by pregnancy, childbirth, or related condition must treat employer same as other temp disabled employees
Including temp modifying job, providing disability leave, or providing unpaid leave
Rules relating to benefit accrual, seniority, vacation calculation, pay increases, etc. applied same way - employees on pregnancy leave same as others on any other disability leave
Equal Pay Act (EPA) - 1963
Requires employers to give men/women equal pay for equal work
Even though gender-specific origins, protects both men and women
Federal (only civilians, not military), state, local must comply
Unions
Business w/ $500K in annual gross sales or interstate commerce
Equal Pay Act
Entitled to equal pay even if jobs not absolutely identical
Requires jobs to be substantially equal in skill, effort, responsibility, performed under similar working conditions, w/in same establishment ; however may be different
2 employees working in retail; one have supervisor responsibilities, the other has non-supervisory resp but financial resp; dept. mgr not equal to supv over team
Actual tasks considered; keep records on payment of wages, wage rates, job evaluations, job descriptions, merit and seniority systems, CBAs, pay practices
Equal Pay Act
Exceptions: employer may pay workers of one sex at higher rate than workers of opposite sex for doing equal work if based on following factors:
Seniority - differences based on tenure with company
Merit - pay higher rate due to better performance
Quantity/quality production - if both sexes have opportunity to earn higher rate, can pay higher rate for better quality or more productivity
Family and Medical Leave Act
Passed in 1993; requires covered employers to allow eligible employees to take up to 12 weeks of unpaid leave per 12-month period for arrival of new child through birth, adoption, foster care; to care for family member suffering from serious health condition, or deal with own serious health condition
Amended in 2008 to cover leave rights for relating to military service
Cannot prevent employees from exercising FMLA rights; cannot discriminate/retaliate or fire
Employment -at-Will (EAW)
Employment at-will means employer can terminate for any reason at any time, except illegal, w/o legal liability
Employer - can change terms of relationship - alter wages, terminate benefits, reduce paid time off
U.S. only one of a few practicing at-will
All states uphold at some level, except Montana
Courts have carved out "common-law" exceptions - mitigate harsh circumstances
States recognize public policy, implied contract, implied covenant of good faith
Employment-at-Will (EAW)
Public policy - standards, principles courts & legislatures recognize in best interest of individual/general public (refusal to break a law, reporting illegal act to authorities, filed worker's comp claim); only those expressed in state constitutions, statutes, admin rules/regs, professional code of ethics
Implied Contract - when oral assurances, policies, practices, handbooks can be construed as indications of employment and/or due process;
Examples - we need good workers as long as this company is around; give employees a chance
Employment-at-Will (EAW)
Implied Covenant of Good Faith & Fair Dealing - few states recognize relating to employment relationships; courts require just cause for termination or prohibiting terminations made in bad faith or motivated by malice
Examples - employer firing to avoid paying retirement; terminating to avoid large payoffs
Statutory Exceptions - illegal discrimination (fed/state prohibit based on race, color, religion, sex, national origin, age, disability, veteran status); retaliation - prohibit firing due to claiming min wage, overtime, union activities, worker's comp claims, whistle-blowing
Trends in HR
Micro-inequities
Electronically produced and stored evidence
Employer retaliation for asserting employment rights
Expeditious employment settlement
Employment practices liability insurance
Implementation of language rules in workplace - speak English only rules