Presentation is loading. Please wait.

Presentation is loading. Please wait.

EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in.

Similar presentations


Presentation on theme: "EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in."— Presentation transcript:

1 EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

2 Overview of Employment Law Chapter 1 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

3 Chapter Outline (1 of 2) Heard at the Staff Meeting Heard at the Staff Meeting U.S. Employment Law is a Fragmented Work in Progress U.S. Employment Law is a Fragmented Work in Progress Sources of Employment Law Sources of Employment Law Substantive Rights Under Employment Law Substantive Rights Under Employment Law Determining Which Employment Laws Apply Determining Which Employment Laws Apply Historical Development of U.S. Employment Law Historical Development of U.S. Employment Law © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

4 Chapter Outline (2 of 2) Procedures for Enforcing Employment Laws Procedures for Enforcing Employment Laws Enforceability of Arbitration Agreements Enforceability of Arbitration Agreements Remedies for Violations of Employment Laws Remedies for Violations of Employment Laws The Role of Managers in Legal Compliance The Role of Managers in Legal Compliance © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

5 Heard at the Staff Meeting (1 of 2) Any legal issues here? ◦ We've lined up some interns from a local college to take the place of vacationing staff members. We won’t pay them, but hopefully, they will make a real contribution. ◦ When hiring, our background checks will reveal which job candidates have an arrest or conviction; they will be dropped from consideration. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

6 Heard at the Staff Meeting (2 of 2) Any legal issues here? (cont.) ◦ An employee has been deployed to Afghanistan twice and has missed more than two years of work. She is returning and wants her job back, but her skills are out of date, and she might be deployed again. We won’t take her back. ◦ Because health insurance is so expensive, we’re requiring all of our applicants to complete lengthy medical histories, including whether certain diseases run in their families. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

7 U.S. Employment Law Employment law is a patchwork of federal, state, and local laws. Whether and how laws apply depends on: ◦ Whether employees work for the government or a private employer ◦ Whether they have union representation ◦ The size of their employer Employment law is dynamic, and changes daily. 7 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

8 Sources of Employment Law ◦ Constitutions Constitutions  Ex: 4 th Amendment prohibiting unreasonable search & seizure, U.S. Constitution ◦ Statutes  Ex: Title VII barring employment discriminationTitle VII ◦ Executive Orders  Ex : EO # non-discrimination by contractorsEO # ◦ Regulations, Guidelines & Administrative decisions  Ex : OSHA safety standardsOSHA safety standards ◦ Common law (case decisions)  Ex : Casias v. Wal-Mart StoresCasias v. Wal-Mart Stores 8 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

9 Substantive Rights under Employment Law (1 of 3) The starting point for any analysis or discussion of U.S. employment law is the “Employment at Will” doctrine.Employment at Will Many people mistakenly believe that they cannot be fired as long as they are doing a good job, but this is not true. Unless there is an exception, the Employment at will doctrine controls 9 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

10 Substantive Rights under Employment Law (2 of 3) Under Employment at will: ◦ An employee can quit at any time for any reason or no reason at all. ◦ An employer can fire an employee at any time for any reason or no reason at all, except for reasons prohibited by law. If the parties’ relationship is governed by a contract, the contract controls.  Ex : employment contracts of executives & others; union collective bargaining agreements (CBAs) 10 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

11 Substantive Rights under Employment Law (3 of 3) Nondiscrimination and Equal Employment Opportunity Freedom to Engage in Concerted Activity and Collective BargainingConcerted ActivityCollective Bargaining Terms and Conditions of Employment that Meet Minimum Standards Protection of Fundamental Rights ◦ Ex: privacy torts Compensation for Certain Types of Harm 11 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

12 Determining Which Employment Laws Apply Public Sector or Private Sector Employment Unionized or Nonunion Workplace Employer Size ◦ Calculated by the payroll method Geographic Location Government Contracts Industry and Occupation 12 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

13 Table 1.1- Employment Size of Firms (2010) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

14 Historical Development of U.S. Employment Law At turn of twentieth century, employment law was nonexistent. First employment legislation: ◦ State workers’ compensation laws to deal with severe problem of injured workers ◦ 1930s, National Labor Relations Act Most employment laws reflect the work of social movements. Figure 1.1 lists U.S. employment laws. 14 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

15 Figure 1.1- Timeline of Major U.S. Employment Laws © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

16 Procedures for Enforcing Employment Laws (1 of 3) Enforcement procedures exist for bringing and resolving claims. What Does an Employee Decide to Do When She Believes That Her Rights Were Violated? How Long Does the Employee Have to Bring a Case? ◦ What is the limitations period? ◦ Does equitable tolling apply? ◦ The Lilly Ledbetter Fair Pay Act provides that each discriminatorily low paycheck is a separate violation which starts the limitations period anew. 16 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

17 Procedures for Enforcing Employment Laws (2 of 3) Can a Lawsuit be Brought? By Whom? ◦ Suits may be brought in state or federal court. ◦ If federal, the trial is held in the district court. ◦ Many cases are dismissed by summary judgment. ◦ The employee who is suing is the plaintiff. ◦ At trial, plaintiff bears the burden of proof. ◦ Either party may appeal to the appeals court. ◦ Rarely does a case appealed from the appeals court get to the U.S. Supreme Court; if accepted, the Supreme Court issues a writ of certiorari. ◦ Consistency & stability are provided by stare decisis. 17 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

18 Procedures for Enforcing Employment Laws (3 of 3) Class Action Lawsuits Is There an Administrative Prerequisite to a Lawsuit? ◦ Some employment laws require that a charge be filed with the EEOC or Department of Labor ◦ The agency tries to reach conciliation with the parties. ◦ Failing that, the agency issues a right-to-sue letter. Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding? ◦ Or are there other alternative dispute resolution procedures? 18 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

19 Enforceability of Arbitration Agreements (1 of 2) Mandatory arbitration agreements, requiring employees to submit their employment disputes to arbitration (not mediation), rather than bring suit in court, are generally enforceable. The employee must agree, in writing. The Federal Arbitration Act (FAA) requires courts to enforce most written arbitration agreements. But like other contracts, arbitration agreements are subject to contract defenses. 19 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

20 Enforceability of Arbitration Agreements (2 of 2) In some states, arbitration agreements will not be enforced if they are “unconscionable,” both procedurally and substantively.unconscionable ◦ A contract is “procedurally unconscionable” if drafted by the party with greater bargaining power and presented on a “take it or leave it” basis without opportunity for negotiation or modification.  Ex: cell phone contract ◦ A contract is “substantively unconscionable” if its terms are markedly unfair to the less powerful party, particularly by imposing limits and burdens on the less powerful party which are not shared by the other. 20 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

21 Smart Practice – Arbitration Agreements (1 of 2) A poorly drafted arbitration agreement is likely to be unenforceable. If your firm decides to use arbitration agreements, avoid provisions like these: ◦ No selection of a neutral arbitrator ◦ Employee pays excessive fees ◦ Remedies inferior to those granted by court ◦ No minimum discovery process ◦ Many restrictions placed on the employee, but few on the employer ◦ Employer reserves the right to change the agreement at any time 21 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

22 Smart Practice – Arbitration Agreements (2 of 2) Some firms have tried to establish mandatory arbitration without gaining knowing consent, raising contract defenses. If your firm decides to use mandatory arbitration agreements, make certain that: ◦ They are in writing. ◦ They clearly notify employees that they are waiving their right to sue. ◦ The employee understands the terms. ◦ The employee signs in writing to indicate acceptance of the agreement. 22 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

23 Smart Practice – Documentation Because employment decisions can have consequences months or years after the events, HR managers should be careful to document decisions and the reasons for them at the time they occur. Such records are useful evidence in the event of a claim or lawsuit, and can help your firm avoid liability. 23 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

24 Remedies for Violations of Employment Laws (1 of 2) EEOC remedies for violations may include: ◦ Attorneys’ fees ◦ Court orders ◦ Back pay ◦ Front pay ◦ Reinstatement ◦ Hiring ◦ Liquidated damages ◦ Compensatory damages ◦ Punitive damages But not all remedies are available for every case. 24 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

25 Remedies for Violations of Employment Laws (2 of 2) Arbitration clauses in collective bargaining agreements (CBAs) do not bar those employees from going to court. Arbitration agreements do not prevent employees from bringing complaints to government agencies like the EEOC, which may bring suit. EEOC has increasingly sought agreements from defendant employers to have their employment practices overseen by external monitors, and to institute wide-ranging diversity programs. 25 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

26 The Role of Managers in Legal Compliance To recognize, analyze and deal effectively with employment law issues. To put in place sound policies and practices that PREVENT legal problems from arising in first place. To enforce compliance with established law and develop strategies for dealing with legal issues that are not clear. To know when to seek legal advice. An employer should define its legal compliance strategy. 26 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

27 What Would You Do? A good employee with a near perfect attendance record has suddenly been missing 2-3 days of work per week. His supervisor has repeatedly told him he must be at work daily, or he will be fired. Now, the supervisor wants to fire him, but has come to ask you to do it. As Human Resources Manager (you are the person in charge), what should you do? 27 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

28 Next: Chapter 2 – The Employment Relationship ◦ Who is an employee? ◦ Who is the employer? ◦ Does an employment relationship even exist? The answers may surprise you. Stay tuned. 28 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.


Download ppt "EMPLOYMENT LAW FOR HUMAN RESOURCE PRACTICE, 5E David Walsh © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in."

Similar presentations


Ads by Google