2-1 McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved. Chapter 2: Legal Compliance Chapter 3: Planning Chapter 4: Job Analysis

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McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

Chapter 2: Legal ComplianceChapter 2: Legal Compliance

Chapter 3: PlanningChapter 3: Planning

Chapter 4: Job AnalysisChapter 4: Job Analysis

Part 2Part 2Support ActivitiesSupport Activities

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CHAPTER TWOCHAPTER TWO

Legal ComplianceLegal Compliance

Screen graphics created by:Jana F. Kuzmicki, PhD

Troy State University-Florida and Western Region

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Organization StrategyOrganization Strategy HR and Staffing StrategyHR and Staffing Strategy

Staffing Policies and Programs

Staffing System and Retention Management

Support Activities

Legal compliance

Planning

Job analysis

Core Staffing Activities

Recruitment: External, internal

Selection:Measurement, external, internalEmployment:Decision making, final match

OrganizationVision and Mission

Goals and Objectives

Staffing Organizations ModelStaffing Organizations Model

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Chapter OutlineChapter Outline

The Employment Relationship

Laws and Regulations

EEO/AA: Preliminary Issues

EEO/AA Laws: General Provisions and Enforcement

EEO/AA Laws: Specific Staffing Provisions

EEO/AA: Regulations and Information

EEO/AA: Best Practices

Other Staffing Laws

Legal Issues in Remainder of Book

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The Employment RelationshipThe Employment Relationship

Employer-employeeMost prevalent form of employment relationship Involves an agreement between employer and

employee on terms and conditions of employment Results in an employment contract

Independent contractorsAre not considered employees, in a legal sense, of

employer Temporary employees

Do not have special legal stature

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Exh. 2.1: Matching Process, Employment Exh. 2.1: Matching Process, Employment Contract, and Employment ProcessContract, and Employment Process

Terms and conditions(employment contract)

Establish

Modify

Terminate

Employmentrelationship

Employer(job)

RequirementsRewards

Offer and agree

Employee(person)

KSAOsMotivation

Offer and agree

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Laws and RegulationsLaws and Regulations

Need for laws and regulationsBalance of powerProtection of employeesProtection of employers

Exh. 2.2: Sources of Laws and RegulationsCommon lawConstitutional lawStatutory lawExecutive orderAgencies

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EEO / AA: Preliminary IssuesEEO / AA: Preliminary Issues

EEO, AA, and QuotasEEO

Practices designed and used in a “facially neutral” mannerAA

Seeks to rectify discriminatory effects of past practices May be

Voluntarily undertaken by employer Court-ordered Agreed to by employer as a remedy for discriminatory past actions

Quotas Represent rigid hiring and promotion requirements that

must be adhered to Disparate treatment and disparate impact

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Disparate TreatmentDisparate Treatment

Involves allegations of intentional discrimination where employer knowingly discriminated on basis of specific characteristics

Evidence May be direct May consist of a mixed motive May be inferred from situational factors

1. Person belongs to a protected class2. Person applied for, and was qualified for, a job employer

was trying to fill3. Person was rejected despite being qualified4. Position remained open and employer continued to seek

applicants as qualified as person rejected

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Disparate / Adverse ImpactDisparate / Adverse Impact

Focuses on effect of employment practices, rather than on motive or intent underlying themAs a result of a protected characteristic, people are

adversely affected by an employment practice Evidence -- Involves use of statistics

Exh. 2.3: Types of Disparate Impact Statistics Applicant flow statistics

Four-fifth’s rule - An employment practice has disparateimpact if hiring rate for minority group is less thanfour-fifths (or 80%) of hiring rate for majority group

Stock statistics Concentration statistics

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Types of DiscriminationTypes of Discrimination

- Show intent?- Prima facie case

- Employer’s defense

- Plaintiff’s rebuttal- Damages

- Key litigation

Disparate Treatment

- Yes- Member of protected group

- Show BFOQ

- Reason a pretext

- Compensatory/punitive

- McDonnell Douglas v. Green Hopkins v. Price Waterhouse

- No- Statistical disparity

- Show job relatedness

- Other ways exist

- Equitable relief

- Griggs v. Duke Power Wards Cove v. Atonio

Disparate Impact

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EEO / AA Laws: GeneralEEO / AA Laws: GeneralProvisions and EnforcementProvisions and Enforcement

Exh. 2.4: Major Federal/AA Laws: General ProvisionsCivil Rights Act (1964, 1991)Age Discrimination in Employment Act (1967)Americans With Disabilities Act (1990)Rehabilitation Act (1973)Executive Order 11246 (1965)

EnforcementEEOCOFCCP

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Enforcement by EEOC:Enforcement by EEOC:Initial Charge and Conciliation Initial Charge and Conciliation

Charge filed Investigation to determine “reasonable cause” If “reasonable cause” found, conciliation is pursued

Voluntary settlement processPreferred method of settlement

If EEOC decides not to pursue a claim, a “right to sue” letter is issued to complaining party

Complementing conciliation is mediationNeutral, third-party mediates dispute to obtain

agreement to resolve dispute

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Litigation and Remedies:Litigation and Remedies:Exh. 2.5: Basic Litigation Process - EEOCExh. 2.5: Basic Litigation Process - EEOC

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Litigation Process - EEOCLitigation Process - EEOC

Disparate treatment Disparate impact

Show intent? Yes No

Prima facie case

Disparate treatment - intentional practice

Disparate impact - effect of practice

Employer’s rebuttal

Nondiscriminatory reason(s) for practice or show BFOQ

Practice job-related and consistent with business

necessity

Plaintiff’s rebuttal

Reason is a pretext for discrimination

Practice not job-related; employer will not adopt practice causing

less adverse impact

Remedies Consent decree; compensatory and punitive damages

Consent decree; equitable relief, i.e. back pay

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Enforcement by OFCCPEnforcement by OFCCP

Enforcement mechanisms differ from those of EEOC Covered employers required to develop and

implement written AA plans Enforcement involves

Off-site desk audits/reviews ofemployers’ records and AA plans

On-site visits/compliance reviews of employers’ AA plans Employers found in noncompliance urged to change

practices through conciliation If conciliation is unsuccessful, employers subject to

penalties affecting their status as federal contractors

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EEO / AA Laws:EEO / AA Laws:Specific Staffing ProvisionsSpecific Staffing Provisions

Unlawful employment practices Establishment of disparate impact Disparate treatment Mixed motives Bona fide occupational qualification (BFOQ) Testing Test score adjustments Seniority or merit systems Employment advertising Preferential treatment and quotas

Civil Rights Acts (1964, 1991)

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Prohibited age discrimination

BFOQ

Factors other than age

Seniority systems

Employment advertising

Age Discrimination in Employment Act (1967)

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Prohibited discrimination Definition of disability - Physical and mental

impairments substantially limiting a major life activity EEOC clarifications

1. Impairment - “A physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.”

2. Expanded major life activities include “sitting, standing, lifting, and mental and emotional processes such as thinking, concentrating, and interacting with others.”

3. Whether an impairment is substantially limiting depends on its nature and severity, duration or expected duration, and its permanency or long-term impact.

4. To be substantially limiting, impairment must prevent/significantly restrict a person from performing a class or broad range of jobs in various classes.

Americans With Disabilities Act (1990)

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Qualified individual with a disability

Essential job functions

Reasonable accommodation and undue hardship

Selection of employees

Medical exams for job applicants and employees

Affirmative action

Americans With Disabilities Act (1990)

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Prohibited discrimination

Affirmative action

Rehabilitation Act (1973)

Prohibited discrimination

Affirmative action

Executive Order 11246 (1965)

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EEO / AA: Regulations and InformationEEO / AA: Regulations and Information

Regulations and guidelinesUGESPAffirmative action programs regulationsEmployment regulations for ADA

Information sourcesEnforcement agencies Information servicesCompliance manualsReference BooksProfessional associations

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EEO / AA Best Practices: CriteriaEEO / AA Best Practices: Criteria

Complies with the law Promotes EEO and addresses one or more barriers

that adversely affect EEO Manifests management commitment and

accountability Ensures management and employee

communication Produces noteworthy results Does not cause or result in unfairness

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EEO / AA Best Practices: ExamplesEEO / AA Best Practices: Examples

SPLENDIDStudyPlanLeadEncourageNoticeDiscussion InclusionDedication

Exh. 2.7: Examples of EEO Program Best Practices

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Other Staffing Laws: ImmigrationOther Staffing Laws: ImmigrationReform and Control Act (1986)Reform and Control Act (1986)

PurposeTo prohibit employment of unauthorized aliensTo provide civil and criminal penalties for violations

Prohibited discrimination Employment verification system -- I-9 form

Employer must verify individual is not an unauthorized alien and is legally eligible for employment

Individuals must offer proof of identity Temporary foreign workers Enforcement

Enforced by Department of JusticeNoncompliance may result in fines up to $10,000

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Other Staffing Laws: EmployeeOther Staffing Laws: EmployeePolygraph Protection Act (1988)Polygraph Protection Act (1988)

PurposePrevent most private employers from using

a polygraph on job applicants or employees Prohibited practices

Requiring applicants or employees to take a polygraphUsing results of a polygraph for employment decisionsDischarging or disciplining individuals for refusal to

take a polygraph Examples of instances where polygraph may be used Enforcement

Enforced by Department of LaborNoncompliance may result in fines up to $10,000

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Other Staffing Laws: FairOther Staffing Laws: FairCredit Reporting Act (1970)Credit Reporting Act (1970)

Purpose Regulates organization’s acquisition and

use of consumer reports on job applicants Required compliance

Before obtaining a report, organization must Give applicant notice in writing a report may be obtained Obtain written authorization from applicant

If an “adverse action” is taken, organization must Notify (written, oral, electronic) applicant of adverse action Provide information of consumer reporting agency to applicant Provide notice of applicant’s rights to applicant

Enforcement Enforced by Federal Trade Commission Noncompliance may result in fines up to $1,000

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Other Staffing Laws: State and Local LawsOther Staffing Laws: State and Local Laws

EEO / AA lawsOften patterned after federal lawsBasic provisions vary from state to stateOften provide protections beyond those

contained in federal laws and regulations Other state laws

Employment-at-willWorkplace tortsExamples of other covered areas

Criminal record inquiries by employer, polygraph and “honesty” testing, drug testing, AIDS testing, employee access to personnel records

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Other Staffing Laws:Other Staffing Laws:Civil Service Laws and RegulationsCivil Service Laws and Regulations

Merit principles and staffing practices Merit principles relevant to staffing

To recruit, select, and promote employees on the basis of their KSAOs

To provide for fair treatment of applicants and employees without regard to political affiliation, race, color, national origin, sex, religion, age, or handicap

To protect privacy and constitutional rights of applicants and employees as citizens

To protect employees against coercion for partisan political purposes

Principles codified in civil service laws and regulations

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Other Staffing Laws:Other Staffing Laws:Civil Service Laws and RegulationsCivil Service Laws and Regulations (continued)(continued)

Comparisons with private sector Notable differences exist between public and private

sectors Examples of public sector staffing practices

Open announcement of all vacancies, along with content of selection process to be followed

Large numbers of applicants due to applications being open Legal mandate to test applicants only for KSAOs directly

job-related Limits on discretion in final hiring process, such as number

of finalists, ordering of finalists, and AA considerations Rights of applicants to appeal hiring decision, testing

process, or actual test content and method

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Legal Issues in Remainder of BookLegal Issues in Remainder of Book

Exhibit 2.8:

Legal Issues Covered in Other Chapters

Documents

2-1 McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved. Chapter 2: Legal Compliance Chapter 3: Planning Chapter 4: Job Analysis