CLASS TWO-ESTABLISHING THE EMPLOYMENT RELATIONSHIP

Recruitment Sources Employment recruitment options include: Newspaper advertisements Internet postings Employee referrals Walk-ins Professional search firms in particular specialties. 6. Referrals from current employees.

Civil Rights Laws Affecting Hiring In hiring workers, employers must be aware of the numerous federal, state and local anti-discrimination statutes. Federal laws include Title VII of the Civil Rights Act of 1964 (race, gender, religion, national origin), the Rehabilitation Act of 1973 (covering federal agencies and contractors), the Age Discrimination in Employment Act and the Americans with Disabilities Act. State and local laws cover additional issues, such as marital status, transgender status, and sexual orientation.

Employment Advertisements Employment advertising should be carefully worded, in terms of the position available and the qualifications needed. Words such as “Equal Opportunity Employer” should be used. Such terms as “recent college graduates,” while technically age neutral, could be viewed as a disguised form of age discrimination, and should be avoided. Ads should never use the words “male” or “female” unless gender is a bona fide occupational qualification (e.g. male attendants for men’s locker room).

Employment Applications The employee may be asked for his or her name and address. 2. It is not illegal per se to ask a prospective employee to list the dates of his or her graduation from school, but asking such a question does have possible implications under the Age Discrimination laws. 3. The employer can inquire regarding military service. However, if the application asks whether the applicant had a dishonorable discharge, the application should state that such a discharge is not an automatic bar.

Interview Questions Proper and improper interview questions: The employer can ask whether a person is at least 18 years of age (persons under that age may require working papers or may be legally barred from certain types of hazardous work). A person can be asked whether he has ever been convicted of a crime, but should not be asked about arrests that did not result in convictions. A person can be asked if he is legally allowed to work in the US, but should not be asked about citizenship.

Civil Rights and Immigration Issues Before being hired, a prospective employee must fill out an I-9 form, and provide proof that he has a green card or is a citizen. It is permissible to ask a prospective employee if he or she has ever used another name. However, do not use the term “maiden name,” for this could be lead to a claim under state and local laws prohibiting discrimination on the basis of marital status. It is OK to ask whether a person writes or speaks a foreign language, but it is not OK to ask about national origin.

Inquiries About Disability - Americans with Disabilities Act- Prospective employees should be given a job description and the qualifications needed. Then, ask whether he or she can perform the functions of the job, with or without a reasonable accommodation. If the employee chooses to disclose a disability, or if disability is obvious (e.g. blindness), then he or she should be asked whether a reasonable accommodation is needed, and, if so, the type of accommodation required. If the applicant chooses not to disclose the disability, the employer cannot be faulted for failure to provide accommodations.

Drug and Alcohol Issues Pre-employment testing Drug testing is lawful. If a prospective employee, for example, tests positive for cocaine, the employer can refuse to hire him. 2. A recovered drug abuser or alcoholic cannot be denied employment because of a past record. However, a recent Supreme Court case held that where a person is discharged after testing positive for cocaine, the employer can refuse to rehire him even though he claims that he has kicked the habit. Raytheon v. Hernandez, 540 US 44, 157 L.Ed.2d 357.

Intellectual Requirements Intelligence and ability testing Some employers have required a high school diploma or a particular score on an intelligence test as a prerequisite to being hired, or at least to being promoted to more desirable positions. Unless the test can be shown to have a reasonable relationship to the job, rejected applicants may claim that the test has a disparate impact upon members of certain minority groups. See Griggs v. Duke Power Co., 91 S.Ct. 849 (1971).

Employment Contracts-Slide 1 Some employees have written contracts for a fixed term. In such a case, unless otherwise agreed, the employee can’t be fired before the end of the term except for cause. Examples of good cause include theft, unauthorized disclosure of confidential information, or failure to perform essential job functions. Some contracts allow early termination without cause, in exchange for a defined severance payment.

Employment Contracts- Slide 2 Some key contract provisions: 1. Trade secrets-employees agree not to reveal trade secrets or other confidential information to unauthorized persons 2. Choice of state law- Some contracts provide that in the event of a legal dispute, the employee agrees to litigate in a state designated in the contract, or to the application of that state’s law. Some courts, however, have refused to enforce the provision as a matter of public policy.

Employment Contracts-Slide 3 Additional contract provisions Most contracts provide that no modifications can be enforced unless in writing. In quite a few industries (especially the securities industry), arbitration clauses are standard in employment agreements. Some contracts call for attorney fees to be recovered by the successful litigants. However, a one-sided provision in favor of the employer conceivably could be held to be unenforceable.

Affirmative Action-Slide 1 Executive Order 11246 prohibits employers who contract with the federal government to provide services of $10,000 or more from discriminating against any employee on the basis of race, religion, sex or national origin. A construction contractor or subcontractor with 50 or more employees, or a non-construction contractor with a contract of $50,000 or more must develop a written affirmation action plan designed to remedy past discrimination.

Affirmative Action-Slide 2 In United Steelworkers v. Weber, 444 US 193, the court upheld an affirmative action plan that allowed for racial preferences in admitting employees to a desirable training program. The court indicated that the plan was designed to correct past racial imbalances, and did not require the discharge of any white workers already in the training program. Moreover, whites were not excluded and constituted close to half of all people admitted to the program.

Affirmative Action-Slide 3 Although employers may be able to consider race in hiring and promotion decisions, a strict quota might be struck down as illegal. In an analogous case involving college admissions, a court struck down an admission plan in which in awarded African-Americans a specific number of points towards a required numerical admissions score. Gratz v. Bollinger, 539 US 244 (2003). Some courts have questioned whether affirmative action is lawful in cases in where the plan is put in place without evidence of past discrimination. See Kohlbeck v. City of Omaha, 447 F.3d 552 (8th Cir. 2006).