Staffing Organizations (6th ed.)
Chapter 2 Notes
Laws governing the employment agreement create a reasonable balance of power between employer and employee. Laws and regulations provide special protections to employees such as employment standards, individual rights and consistency of treatment.
· The primary source of common law is past court decisions.
· The Civil Rights Act was based on statutory law.
· “Due process” rights are based on Constitutional law.
An employment contract is the formal agreement that specifies the employment terms and conditions for the employee and employer.
· The employer-employee relationship is the most prevalent type of employment relationship.
· Employment contracts may be in written or oral form.
· The use of temporary workers can raise issues of “co-employment.”
· If an employer hires an independent contractor, it may reduce the employer’s exposure to laws and regulations governing the employment agreement.
o Also, using independent contractors frees the employer from the tax withholding and tax payment obligations that it has for its employees.
Employers incur legal responsibilities and liabilities regarding their employees.
· Negligent hiring of unsafe or dangerous employees that leads to harm or damages suffered by them is an example of a staffing tort.
The common law principle of employment-at-will says that, in the absence of any contract language to the contrary, either the employer or the employee may terminate the employment relationship at any time, for any reason.
· Exceptions to employment-at-will include prohibitions of discharge based on legally protected characteristics or actions.
Equal Employment Opportunity (EEO) Act and affirmative action (AA) are not the same.
· EEO is “facially neutral”
· AA seeks to rectify the effects of discriminatory staffing practices in the past, thereby providing a legitimate reason for making employment decisions based on otherwise protected characteristics.
o AA procedures may be voluntary or court-ordered and they may establish specific hiring goals.
o The Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Orders. OFCCP enforcement mechanisms include frequent employer site visits, AA plans reviews, and conciliation agreements.
· Compared to EEO and AA, quotas use the most rigid hiring and promotion requirements. (Neither EEO nor AA requires or encourages use of quotas and any use of quotas to make staffing decisions must be temporary.)
· Employment tests are permitted by law; however, they must be job-related to stand up in court. Seniority and merit systems are also legal standards when they are fairly administered.
The Uniform Guidelines on Employee Selection Procedures define discrimination and provide guidance for the interpretation and implementation of the major EEO/AA laws.
Disparate treatment occurs when an employer intentionally (“knowingly and deliberately”) discriminates against people on the basis of protected characteristics.
· In disparate treatment cases, the ultimate, both initial and final, burden of proof rests with the plaintiff (employee).
Disparate impact focuses on the effects and outcomes of discriminatory employment practices, not on the causes.
· In disparate impact cases, the initial burden of proof rests with the plaintiff, then after showing “prima facia” evidence, the burden of proof shifts to the defendant (employer).
· In disparate impact cases, the plaintiff must show disparate impact for each specific staffing practice.
· Employers may show that their decisions were appropriate by providing evidence of business necessity or bona fide occupational qualification (BFOQ), which justify discrimination based on reasonable necessity of the job.
· Concentration statistics examine the percentages of minorities and women in various job categories within the organization to establish a case of disparate impact.
· When using stock statistics in job selection, the comparison being made is the percentages of groups in job categories relative to their availability in the general population.
The Civil Rights Act (CRA 1866, 1964, 1991) is the cornerstone of staffing legislation.
· CRA (64, 91) prohibits discrimination in employment on the basis of:
o race, color, religion, sex, or national origin.
· CRA 19 91 overturned several past Supreme Court decisions and changed damage claims provisions.
Executive Orders 11246 and 11375 (1965, 1967) require federal contractors and subcontractors (with contracts in excess of $10,000) to eliminate employment discrimination. Employers with at least 50 employees and $50,000 in federal contracts must have an affirmative action plan. Affirmative action plans (AAP) are an extension and application of general HR staffing activities.
Age Discrimination in Employment Act (ADEA) (1967) prohibits discrimination against individuals who are 40 years or older.
Immigration Reform and Control Act (IRCA) (1986, 1990, 1996) establishes civil and criminal penalties for employers who knowingly hire unauthorized aliens; prohibits employment discrimination on the basis of national origin or citizenship.
o I-9 is required for all workers; must be completed within 72 hours of employment. Work eligibility verification should be stated as a contingency to any employment offer.
o Law caps the number of H-1B visas provided for foreign workers.
o Noncompliance with IRCA could result in fines, up to $10,000 per violation; penalties, including imprisonment for up to 6 months for a pattern/practice of violations and/or being barred from Federal contracts for one year; and summary closing of the business.
Americans with Disabilities Act (ADA) (1990) requires employers to accommodate individuals with qualified disabilities.
o ADA requires that medical exams be given only as a condition of employment after the employment offer has been made.
o ADA also requires that medical records be separated from other personnel file.
Congressional Accountability Act (1995) extends EEO and CRA provisions to U.S. Congressional staffs.