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Chapter 4 Legal Construction of the Employment Environment McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

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Presentation on theme: "Chapter 4 Legal Construction of the Employment Environment McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved."— Presentation transcript:

1 Chapter 4 Legal Construction of the Employment Environment McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

2 4-2 Learning Objectives  Explain why employers might be concerned about ensuring protections for equal opportunity during recruitment, in particular  Describe how the recruitment environment is regulated, by both statutes and common law  Describe the employer’s opportunities during the information-gathering process to learn as much as possible about hiring the most effective worker

3 4-3 Learning Objectives  Explain how the employer might be liable under the theory of negligent hiring  Identify the circumstances under which an employer may be responsible for an employee’s compelled self-publication, thus liable for defamation

4 4-4 Learning Objectives  Explain the difference between testing for eligibility and testing for ineligibility, and provide examples of each  Identify the key benefits of performance appraisal structures, as well as their areas of potential pitfalls

5 4-5 Evolution of the Employment Relationship  Recruitment of appropriate candidates  Hiring  Testing  Performance appraisals

6 4-6 Recruitment  First step in the evolution of the employment relationship  Federal statutory regulation of recruitment  Title VII of the Civil Rights Act of 1964  Age Discrimination in Employment Act of 1967  Immigration Reform and Control Act of 1986  Vocational Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990

7 4-7 Recruitment  State employment law regulation  Common law recruitment violations  Fraud  Misrepresentation  Material facts

8 4-8 Application of Regulation to Recruitment Practices  Advertisements  Word-of-mouth recruiting  Promoting from within  Venue recruiting  Walk-in applicants  Neutral solicitation

9 4-9 Information Gathering and Selection  The application phase  The interview  Background or reference check  Negligent hiring

10 4-10 Exhibit 4.60 – Grounds for Negligent Hiring Claim

11 4-11 Exhibit Where Do Employers Get Their Info?

12 4-12 Exhibit 4.9 – Content on Candidates’ Web Sites Leading Employers Not to Hire

13 4-13 Employer Liability and Protection  Reference checks – potential liability for providing references  Compelled self-publication: Occurs when an ex- employee is forced to repeat the reason for her or his termination  “After-acquired evidence” in defense in wrongful termination suits  Documentation of failure to hire

14 4-14 Exhibit 4.13 – Balancing the Interests in the Testing Debate

15 4-15 Testing in the Employment Environment  Preemployment testing  Tests to find the best individual for a position  Tests to ensure that the individual is free from problems that would prevent her or him from performing the position’s functions  Individual privacy  Testing is illegal when the invasion of privacy is “substantially and highly offensive to the reasonable person”

16 4-16 Legality of Eligibility Testing  Eligibility testing: Tests conducted to ensure capability and qualification of potential employee  To be legally validated, an employer must show that the eligibility test is:  Job-related  Consistent with business necessity  Job analysis data: Information about nature of work and skills required to perform the work

17 4-17 Legality of Eligibility Testing  Validation: Evidence that shows that a test evaluates precisely what it claims to evaluate  Test validity  Criterion-related validation  Content validation  Construct validation

18 4-18 Legality of Eligibility Testing  Integrity and Personality Tests  Used by 40 percent of Fortune 100 companies  Conscientiousness  job performance  basic intelligence testing is one of the best predictors of job performance across all jobs  Physical Ability Tests  Medical Tests

19 4-19 Legality of Ineligibility Testing  Why testing is required?  Reduce workplace injury or to provide a safer working environment  Predict employee performance or deter poor performance  Reduce the employer’s financial responsibility to the worker’s compensation system

20 4-20 Polygraphs  Polygraph: A lie-detecting device that measures biological reactions in individuals when questioned  A polygraph measures  Rate and depth of respiration  Cardiovascular activity  Perspiration  Accuracy rates range from 50 to 90 percent

21 4-21 Polygraphs  Federal Employee Polygraph Protection Act (EPPA)  33 states have statutes prohibiting or restricting the use of polygraphs in making employment decisions

22 4-22 Drug and Alcohol Tests  Drug-Free Workplace Act of 1988  Only applies to federal employees  Some private sector firms use the act’s guidelines  Immunoassay test  Radioimmunoassay of hair  Drug-Free Workplace Act of 1998

23 4-23 Genetic Tests  Genetic Information Non-Discrimination Act  Issues  Employers may discriminate based on the potential for a debilitating disease  Employees may not want to know results  Genetic testing is not perfect  Genetic irregularities may be considered protected disabilities under the Americans with Disabilities and Vocational Rehabilitation Act

24 4-24 Unique Considerations of HIV/AIDS Testing  Why is it inappropriate?  For the test to be justified, it must serve a legitimate business purpose  The test reports only the subject’s status as of several weeks or months in the past  HIV-positive employee may be protected under  Federal Vocational Rehabilitation Act  Americans with Disabilities Act

25 4-25 Management Considerations: Testing  A workplace substance abuse program should incorporate  A written abuse policy  A supervisory training program  An employee education and awareness program  Access to an employee assistance program  A drug testing program, where appropriate

26 4-26 Management Considerations: Testing  Corporate approaches  Mandatory testing  “Probable cause” testing  Random testing

27 4-27 Performance Appraisals, Evaluation, and Discipline Schemes  Performance appraisal: A periodic assessment of an employee’s performance  The purpose of performance appraisals  To identify those characteristics the employer hopes the employee will accentuate  To dissuade the employee from exhibiting characteristics not in keeping with the organization’s objectives  The potential for discriminatory effect

28 4-28 Performance Appraisals, Evaluation, and Discipline Schemes  Realities about performance evaluations  Employer might be liable for negative references  No need to lower its standards or qualifications to accommodate employee’s or applicant’s needs  Objective measures for appraisal can be used  Performance incentive systems can be effective  Legal challenges found mostly in the areas of implementation, monitoring and accountability

29 4-29 Legal Implications of Performance Appraisal Systems  Disparate impact  Four-fifths rule  Validation  Disparate treatment  Employees rated subject to different criteria

30 4-30 Legal Implications of Performance Appraisal Systems  Defamation  False information/evaluation  Negligent performance evaluations  Negligence in conducting a performance evaluation

31 4-31 Discipline  “Just cause” disciplinary approach  How is “just cause” determined?  Due process  Adequate evidence  Appropriateness of penalty  Documentation  Progressive discipline

32 4-32 Management Tips  Maintain proper documentation of performance appraisals  Train supervisors on non-biased reporting and evaluations  Take precautions against inappropriate disclosures  Conduct appraisals as and when stated in the employee manual or other materials


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