Chapter 4Chapter 4Legal Construction of Legal Construction of

the Employment the Employment EnvironmentEnvironment

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

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Learning ObjectivesLearning 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

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Learning ObjectivesLearning 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

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Learning ObjectivesLearning 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

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Evolution of the Employment Evolution of the Employment RelationshipRelationship

Recruitment of appropriate candidates

Hiring

Testing

Performance appraisals

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RecruitmentRecruitment 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

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RecruitmentRecruitment State employment law regulation

Common law recruitment violations

Fraud

Misrepresentation

Material facts

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Application of Regulation to Application of Regulation to Recruitment PracticesRecruitment Practices

Advertisements

Word-of-mouth recruiting

Promoting from within

Venue recruiting

Walk-in applicants

Neutral solicitation

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Information Gathering and SelectionInformation Gathering and Selection

The application phase

The interview

Background or reference check

Negligent hiring

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Exhibit 4.60 – Grounds for Negligent Exhibit 4.60 – Grounds for Negligent Hiring ClaimHiring Claim

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

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

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Employer Liability and ProtectionEmployer 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

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Exhibit 4.13 – Balancing the Interests in Exhibit 4.13 – Balancing the Interests in the Testing Debatethe Testing Debate

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Testing in the Employment Testing in the Employment EnvironmentEnvironment

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”

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Legality of Eligibility TestingLegality 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

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Legality of Eligibility TestingLegality 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

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Legality of Eligibility TestingLegality 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

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Legality of Ineligibility TestingLegality 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

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PolygraphsPolygraphs 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

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PolygraphsPolygraphs Federal Employee Polygraph Protection Act

(EPPA)

33 states have statutes prohibiting or restricting the use of polygraphs in making employment decisions

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Drug and Alcohol TestsDrug 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

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Genetic TestsGenetic 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

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Unique Considerations of HIV/AIDS Unique Considerations of HIV/AIDS TestingTesting

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

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Management Considerations: TestingManagement 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

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Management Considerations: TestingManagement Considerations: Testing

Corporate approaches

Mandatory testing

“Probable cause” testing

Random testing

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Performance Appraisals, Evaluation, Performance Appraisals, Evaluation, and Discipline Schemesand 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

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Performance Appraisals, Evaluation, Performance Appraisals, Evaluation, and Discipline Schemesand 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

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Legal Implications of Performance Legal Implications of Performance Appraisal SystemsAppraisal Systems

Disparate impact

Four-fifths rule

Validation

Disparate treatment

Employees rated subject to different criteria

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Legal Implications of Performance Legal Implications of Performance Appraisal SystemsAppraisal Systems

Defamation

False information/evaluation

Negligent performance evaluations

Negligence in conducting a performance evaluation

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DisciplineDiscipline “Just cause” disciplinary approach

How is “just cause” determined?

Due process

Adequate evidence

Appropriateness of penalty

Documentation

Progressive discipline

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Management TipsManagement 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