1. Chapter 4 Legal Construction of the Employment Environment
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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 workers
Explain how the employer might be liable under the theory of negligent hiring
Identify the circumstances of employee’s compelled self-publication, and defamation risk
Explain the difference between testing for eligibility and testing for ineligibility, and provide examples of each
Identify key benefits of performance appraisals, and potential pitfalls to avoid

3. Evolution of the Employment Relationship
Recruitment of appropriate candidates
Hiring
Testing
Performance appraisals
Termination

4. 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
State employment law regulations vary by statute and common law (KNOW YOUR STATE!)
Common law recruitment violations
Fraud
Misrepresentation
Material facts

5. Application of Regulation to Recruitment Practices
Advertisements
Scenario 1
Word-of-mouth recruiting
Promoting from within
Venue recruiting
Walk-in applicants
Neutral solicitation
Case: EEOC v. Consolidated Service System

6. Information Gathering and Selection
The application phase: manage info for need
Questions that are business related and used for non-discriminatory purposes are appropriate
Generally, applications will ask for name, address, educational background, work experience, & any other qualifications for position
However, any question can be asked on an application, such as DOB, nationality, religion, marital status, etc. - (but ER may unnecessarily open itself up to potential discrimination claims)…Only ?’s concerning disability, specific health inquires and worker’s comp history are prohibited by law (ADA0
The interview
Team make-up , pre-training, selection criteria sought
Any improper (or risky) question on the application is just as improper in an interview
Background or reference checks
Resume fraud rampant
Background checks: manage information of-interest
References: manage rules for giving and getting
Negligent hiring risk (next slide)
Employment of a person who causes harm that could have been prevented if the ER had conducted a reasonable and responsible background check on the EE. The standard against which the decision is measured is when the ER knew or should have known that the worker was not fit for the job.

7. Exhibit 4.60 – Grounds for Negligent Hiring Claim

8. Exhibit 4.8 - Where Do Employers Get Their Info?

9. Exhibit 4.9 – Content on Candidates’ Web Sites Leading Employers Not to Hire

10. Employer Liability and Protection
Reference checks – potential liability for providing references
Title, dates of employment? “No comment?”
Compelled self-publication: Occurs when an ex-employee is forced to repeat the reason for her or his termination
VERY RARE (SC does not recognize this); ER prevails on truth but keep good personnel files
“After-acquired evidence” in defense in wrongful termination suits
Notre Dame fired George O’Leary (former football coach) for discovering a lie on his resume and application
Perfectly legal for ER to fire after hire if it acquires after hire evidence
Documentation of failure to hire
Exhibit 4.10 – LEGAL reasons for not hiring (good slide)
Page

11. Exhibit 4.13 – Balancing the Interests in the Testing Debate

12. Testing in the Employment Environment
Pre-employment testing
Tests to find the best individual for a position (eligibility)
Tests to ensure that the individual is free from problems that would prevent her or him from performing the position’s functions (ineligibility)
Individual privacy
Testing is illegal when the invasion of privacy is “substantially and highly offensive to the reasonable person”

13. 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
Validation: Evidence that shows that a test evaluates precisely what it claims to evaluate
Test validity
Criterion-related validation
Content validation
Construct validation
Integrity and Personality Tests
Used by 40% 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

14. Legality of Ineligibility Testing
Why is testing done?
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

15. 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 (e.g., random) to 90 percent
Federal Employee Polygraph Protection Act (EPPA)
Generally not allowed in employment context, with (odd) exceptions
Certain specific workplace investigations
Sensitive Occupations
33 states have statutes prohibiting or restricting the use of polygraphs in making employment decisions

16. Drug and Alcohol Tests Drug-Free Workplace Act of 1988
Only applies to federal employees
Some private sector firms use Act’s guidelines
Coverage varies with technology used
Immunoassay test
Radio-immunoassay of hair
Drug-Free Workplace Act of 1998
Case: Nat’l. Treasury Employees Union v. Von Raab

17. Genetic Tests
Genetic Information Non-Discrimination Act and state statutory coverages -> restricted use
Issues
Employers might 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

18. Unique Considerations of HIV/AIDS Testing
Why is it inappropriate?
For justification, test must serve legitimate business purpose
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 (see Chapter 13 coverage)

19. 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
Mandatory, “probable cause,” and/or random testing

20. Performance Appraisals, Evaluation, and Discipline Systems
Performance appraisal: A periodic assessment of an employee’s performance
The purpose of performance appraisals
identify performance characteristics employer hopes employee will accentuate
Discourage performance characteristics not in keeping with the organization’s objectives
The potential for discriminatory effect
Realities about performance evaluations
Monitor for discrimination risk
No need to lower its standards or qualifications to accommodate employee’s or applicant’s needs
Objective measures of performance preferred, tighten subjective criteria
Inadequate system can risk defamation, negligence
Legal challenges found mostly in the areas of implementation, monitoring and accountability

21. Discipline “Just cause” disciplinary approach
How is “just cause” determined?
Due process
Adequate evidence
Appropriateness of penalty
Documentation (!) (in general and here specifically)
Progressive discipline

22. Management Tips
Maintain proper documentation of performance appraisals
Train supervisors on non-biased reporting and evaluations
Take precautions against inappropriate disclosures
Evaluate performance frequently, systematically, and as stated in the employee manual or other materials