Legal Construction of the Employment Environment Chapter 3 Legal Construction of the Employment Environment Employment Law for BUSINESS sixth edition Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN McGraw-Hill/Irwin Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.

Evolution of the Employment Relationship Recruitment of appropriate candidates Hiring Testing Performance appraisals Pages 118-119 3 – 2

Recruitment First step in the evolution of the employment relationship Federal statutory regulation of recruitment State employment law regulation Common law Fraud Misrepresentation Material facts L01 L02 Pages 119-123 Learning Objective #1: Explain why employers might be concerned about ensuring protections for equal opportunity during recruitment, in particular. Learning Objective #2: Describe how the recruitment environment is regulated, by both statutes and common law. 3 – 3

Application of Regulation to Recruitment Practices Advertisements Word-of-mouth recruiting Nepotism Promoting from within Venue recruiting Walk-in applicants Neutral solicitation Résumé collection concerns Pages 123-127 3 – 4

Preferential Treatment and Affirmative Action A preference offered to members of a certain class that is not offered to members of other classes. Affirmative action Provides for the most equal opportunity possible to members of various groups historically not having been provided equal opportunity, and may include preferential treatment, education programs, referral services, or preemployment preparation or training for certain groups. L03 Page 127-128 Learning Objective #3: Identify the role that preferential treatment or affirmative action plays in today’s recruitment environment. 3 – 5

Information Gathering and Selection The application process The interview Background or reference check, negligent hiring Reference checks: potential liability for providing references? Compelled self-publication “After-acquired evidence” in defense in wrongful termination suits. Documentation of failure to hire L04 L05 L06 Pages 129-145 Learning Objective #4: Describe the employer’s opportunities during the information-gathering process to learn as much as possible about hiring the most effective worker. Learning Objective #5: Explain how the employer might be liable under the theory of negligent hiring. Learning Objective #6: Identify the circumstances under which an employer may be responsible for an employee’s compelled self-publication, thus liable for defamation. 3 – 6

The “Freedom” to Contract in the Regulatory Employment Environment Covenants not to complete (“noncompete agreements”) Forum selection clause Uniform Trade Secrets Act Arbitration agreements in employment contracts Binding arbitration Federal Arbitration Act of 1925 L07 L08 Pages 145-152 Learning Objective #7: Describe the permissible parameters of noncompete agreements. Learning Objective #8: Provide a clear distinction between arbitration and the standard process of litigation of employment disputes. 3 – 7

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” L09 Pages 152-154 Learning Objective #9: Explain the difference between testing for eligibility and testing for ineligibility, and provide examples of each. 3 – 8

Legality of Eligibility Testing To be legally validated, an employer must show that the eligibility test is: Job-related Consistent with business necessity Job analysis data “Applicants-statistics” approach Test validity Criterion-related validation Content validation Construct validation Subgroup norming Job-related requirement Integrity and personality tests Physical ability tests Medical tests Pages 155-156 3 – 9

Legality of Ineligibility Testing Why test? 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 Employee claims may be based on: Constitutional or state statute requirements for workplace testing Common-law invasion of privacy Reckless or negligent infliction of emotional distress Defamation Wrongful discharge in violation of public policy Pages 162-164 3 – 10

Polygraphs A polygraph measures: Rate and depth of respiration Cardiovascular activity Perspiration Accuracy rates range from 90 to 50 percent Federal Employee Polygraph Protection Act Digital video functional capacity assessment Pages 164-167 3 – 11

Drug and Alcohol Tests 70 percent of all illegal drug users are employed 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 Pages 167-173 3 – 12

Genetic Tests No federal legislation or regulations restrict the use of genetic testing 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 At least 26 states prohibit or limit genetic testing Pages 173-174 3 – 13

Unique Considerations of HIV/AIDS Testing Inappropriate because: 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 employees are protected Enzyme Linked Immunosorbent Assay test Western Blot test Testing of health care workers Pages 174-176 3 – 14

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 Corporate approaches: Mandatory testing “Probable cause” testing Random testing Page 176-177 3 – 15

Performance Appraisals, Evaluation, and Discipline Schemes The purpose of performance appraisals The potential for discriminatory effect Management by objective Checklist system Summated scale Pages 177-179 3 – 16

Legal Implications of Performance Appraisal Systems Disparate impact Four-fifths rule Validation Disparate treatment Employees rated subject to different criteria Defamation False information/evaluation Negligent performance evaluations Negligence in conducting a performance evaluation Pages 179-184 3 – 17

Discipline Elements of a “fair” system: Documentation Consistency in application Specific guidelines for attaining the various levels of performance Communicates information to employees Documentation Progressive discipline Page 184-186 3 – 18

Summary Provide all qualified employees equal employment opportunity. Use an ethic of nondiscrimination in the hiring process. Have a clear view of the job to be filled and who is the best person to fill that job. Conduct a job analysis and review the written job descriptions. Include all essential job functions in a job description. Encourage diversity in recruitment procedures. Establish efficient, effective hiring procedures. Review applications and only ask for appropriate information. Page 196-197 3 – 19

Summary (continued) Do a thorough background check on each new hire. Provide complete and honest references. Determine applicant eligibility or ineligibility using appropriate preemployment tests. Precisely describe what is required of each position to be evaluated; no “unwritten” qualifications should exist. Ensure that employees understand each of the standards pursuant to which they will be evaluated. Be sure that the bases for an evaluation are specific and job- or task-defined, rather than subjective, global measures of job performance. Request justifications of ratings wherever possible. Establish a formal appeals process. Pages 197-198 3 – 20