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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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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 Page 135
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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 Page 135
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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 Page 135
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Evolution of the Employment Relationship
Recruitment of appropriate candidates Hiring Testing Performance appraisals Page
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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 Page
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Recruitment State employment law regulation
Common law recruitment violations Fraud Misrepresentation Material facts Page
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Application of Regulation to Recruitment Practices
Advertisements Word-of-mouth recruiting Promoting from within Venue recruiting Walk-in applicants Neutral solicitation Page
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Information Gathering and Selection
The application phase The interview Background or reference check Negligent hiring Page
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Exhibit 4.60 – Grounds for Negligent Hiring Claim
Page 150
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Exhibit 4.8 - Where Do Employers Get Their Info?
Page 153
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Exhibit 4.9 – Content on Candidates’ Web Sites Leading Employers Not to Hire
Page 154
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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 Page
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Exhibit 4.13 – Balancing the Interests in the Testing Debate
Page 161
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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” Page
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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 Page
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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 Page
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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 Page
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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 Page
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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 Page 167
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Polygraphs Federal Employee Polygraph Protection Act (EPPA)
33 states have statutes prohibiting or restricting the use of polygraphs in making employment decisions Page
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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 Page
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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 Page
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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 Page
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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 Page 176
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Management Considerations: Testing
Corporate approaches Mandatory testing “Probable cause” testing Random testing Page 176
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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 Page
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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 Page 178
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Legal Implications of Performance Appraisal Systems
Disparate impact Four-fifths rule Validation Disparate treatment Employees rated subject to different criteria Page
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Legal Implications of Performance Appraisal Systems
Defamation False information/evaluation Negligent performance evaluations Negligence in conducting a performance evaluation Page
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Discipline “Just cause” disciplinary approach
How is “just cause” determined? Due process Adequate evidence Appropriateness of penalty Documentation Progressive discipline Page
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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 Page 184
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