1. The Legal Environment of Human Resources Management
Chapter 5
The Legal Environment of Human Resources Management

2. Learning Objectives
Understand the impact of legal considerations on key human resources management activities and functions
Define employment at will and its public policy exceptions
Enumerate the major pieces of federal equal employment opportunity legislation
Explain the rational for government intervention in the workplace to prevent discrimination
Describe the strategies that organizations use to prevent and identify discrimination in the workplace
Understand the concepts of disparate impact and disparate treatment and the types of evidence to demonstrate each form of discrimination
Discuss key features of the ADA, including the concept of undue hardship and reasonable accommodation
Describe the complexities of equal employment opportunity complaint process

3. Learning Objectives Cont.
Describe the complexities of equal employment opportunity complaint process
Discuss the Uniformed Services Employment and Reemployment Right Act
Understand that sexual harassment is a form of employment discrimination
Address employee rights and responsibilities and distinguish among statutory, regulatory and common law rights
Describe recent developments in the area of federal anti-retaliation law
List employee privacy issues, including HIPAA
Recognize the legal backdrop for a variety of healthcare specific employee rights and responsibilities issues
Discuss the contractual implication of employee handbooks, employment agreements, personnel manuals, separation agreements and disciplinary documents
Define the concepts of dismissal for cause and due process
Explain the concepts of progressive discipline and know the steps required for employee termination
Enumerate the types of role and ADR methods in the workplace

4. Employment Laws Consolidated Omnibus Budget Reconciliation Act (COBRA)
Consumer Credit Protection Act
Drug Free Workplace Act of 1988
Employee Polygraph Protection Act of 1988
Employee Retirement and Income Security Act of 1974 (ERISA)
Equal Pay Act of 1963
Executive Order and Executive Order
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Give employee the right to choose to continue to receive their health benefits for a period of time after leaving a job
Consumer Credit Protection Act
Prohibits and employer from discharging an employee because their wages are being garnished and limits the amount that can be garnished
Drug Free Workplace Act of 1988
Requires that all organizations that receive federal grants in any amount or contracts in the amount of $25,000 or more must certify that they are providing a drug free workplace.
Employee Polygraph Protection Act of 1988
Generally prohibits employers from using a polygraph test in pre-employment screening or during employment. There are several exceptions
Employee Retirement and Income Security Act of 1974 (ERISA)
Regulates private pension plans and sets minimum standards for most voluntary established pension and health plans.
Equal Pay Act of 1963
Requires employers to pay employee equal pay for equal work, regardless of gender. Jobs are considered equal if they involve equal levels of skill, effort, and responsibility and if performed under similar conditions.
Executive Order and Executive Order 11375
Prohibits discrimination on the basis of race, color, religion, and national origin in federal employment and in employment by federal contractors
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5. Employment Laws Cont.. Family Medical Leave Act (FMLA)
Genetic Information Nondiscrimination Act of 2007
Immigration Reform and Control Act of 1986
Occupational Safety and Health Administration (OSHA)
Uniformed Services Employment and Reemployment Rights Act of 1994
Workers Adjustment and Retraining Notification Rights Act (WARN)
Family Medical Leave Act (FMLA)
Requires employers to provide 12 weeks of unpaid leave for family and medical emergencies
Genetic Information Nondiscrimination Act of 2007
Prevents and employer from using genetic information in its decision to fire, fire or promote
Immigration Reform and Control Act of 1986
Intended to control unauthorized immigration in to the US and designates penalties for employers who hire people not authorized to work.
Occupational Safety and Health Administration (OSHA)
Is used to set standards and conduct inspections to ensure employers are providing safe and healthful workplaces.
Uniformed Services Employment and Reemployment Rights Act of 1994
Requires that, in most cases, employers are required to re-employ workers who are returning from active medical leave.
Workers Adjustment and Retraining Notification Rights Act (WARN)
Requires employers gives 60 notice of plant closing or major layoff.

6. Employment Discrimintation
Employment at will
Illegal Discrimination
Will Market Forces Correct this?
Statistical Discrimination
Employment at will
Assumes that both employee and employer have a right to sever the work relationship at any time without notice, for any reason, no reason or even a bad or immoral reason
Illegal Discrimination
Discrimination against a particular individual or group of individuals based on non-job related characteristics such as race, ethnicity, age, gender, sexual orientation or disability.
Will Market Forces Correct this? – Some economist believe that companies that hire solely on skill will perform better then those discriminate.
Statistical Discrimination
When an employer makes a calculated decision about a particular individual based on ones perception of a larger group.

7. Employment Discrimintation
Discrimination can occur if the following tools are applied inconsistently
Detailed application form
Interview
Honesty Test
Handwriting analysis
Drug screening
Criminal background check
Credit report check
Reference check
Motor vehicle record check
Educational records check
Personality tests

8. Equal Employment Opportunity Legislation
Equal Employment Opportunity (EEO)
14th Amendment
Fair Labor Standards Act
The Equal Pay Act of 1963
Comparable Worth
Equal Employment Opportunity (EEO)
Refers to the government attempt to ensure that all individual have an equal chance for employment regardless of race, age, religion, disability and other non-job related characteristics.
14th Amendment
This prevents the denial of equal protection of the laws. Used primarily in case of reverse discrimination.
Fair Labor Standards Act
The major provision concern minimum wage, overtime pay, child labor and equal pay.
Forbids the employment of individuals under 18 in hazardous occupations (mining, logging)
Places restriction on teenagers ability to work
The Equal Pay Act of 1963
It was originally thought that men needed to make more money because they supported a household
Prevents discrepancies in pay only if based on gender. If pay is different for another reason it is ok
Still not equal – In 2006 women earned about 76.9 on the dollar of what men made
Comparable Worth –calls for equal pay for jobs that require similar skills, effort and responsibility
This is a good concept for healthcare. If nurses (mostly female) were only compared to other nurses it would be difficult to remedy g ender based discrepancies!!

9. Equal Employment Opportunity Legislation
Title VII of the Civil Rights Act of 1964
Damages
The Age Discrimination in Employment Act (ADEA)
The Older Workers Benefit Protection Act (OWBPA)
The ADA
Reasonable Accommodation
Title VII of the Civil Rights Act of 1964
Bars discrimination in hiring, promotion, compensation, training, benefits and other aspects.
Discrimination is specifically prohibited on the basis of race, color religion, gender and national origin.
Applies to employers involved with interstate commerce with 15 or more employees.
Does not prohibit discrimination based on sexual orientation. But several state laws due.
Damages – Allows for compensatory and punitive damages
The Older Workers Benefit Protection Act (OWBPA)
Protects employee when they sign liability waivers for age discrimination as part of a severance package.
Requires the waiver must be in writing, specifically refer to the ADEA rights or claims, may not waive rights or claims that may arise in the future, must offer the employee value beyond that which the employee would have received without the package, must advise in writing to consult an attorney, must provide 21 days to sign and 7 days to revoke after signing.
The ADA
Prohibits discrimination against persons with disabilities
Does not require employers to hire someone with a disability who is not otherwise qualified for the job
Requires employers to make a reasonable accommodation
Required unless this will cause an undue hardship for the employer
This rule is ambiguous
No strict rule but typically the cost of the accommodation is compared to the overall operating budget
Sears study = 69% of accommodations cost nothing, 28% cost less then $1000, 3% more then $1000

10. Implementing the EEO Principles
Affirmative Action
Interview Questions
Screening
Selection
Disparate Impact
Disparate Treatment
Defenses
Defenses Against Discrimination
Affirmative Action
Applies to Federal contractors and subcontractors
Must take affirmative action to ensure that all individuals have an equal opportunity for employment
Plans are not a quota system. Instead must work towards greater inclusion
Interview Questions
If a interview question can only be asked of certain applicants then it should not be asked
Screening
Screening is a necessary step to limit employer liability and prevent employee discipline
Must be applied consistently to avoid an adverse impact on a protected class
Selection
See the Uniform Guidelines on Employee Selection Procedures. (
Selection requirements must be job related and positively associated with job success
Disparate Impact - Discrimination does not have to be intentional to be illegal
Disparate Treatment – Does required intent to discriminate
Defenses – Other person hired had better qualifications. Or, the protected class characteristic (ie: gender) was a bona fide occupational qualification (BFOQ)
Defenses Against Discrimination
1 – Educate employees
2 – Create standard policies
3 – Publicize desired employee conduct

11. Implementing the EEO Principles
Sexual Harassment
Quid Pro Qua
Hostile Environment
Employer Liability
Sexual Harassment
Governed by Title VII of the Civil Rights Act
Quid Pro Quo
When a job related benefit is contingent upon submission to sexual advances
Hostile Work Environment
May include posting of sexually explicit pictures, using sexually laden jokes and sexually explicit language
Employer Liability
Must have taken “tangible employment action”
If no tangible action occurred employer can defend: a. that the employer exercises reasonable care to prevent and correct promptly any sexually harassing behavior and b. that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer
The plaintiff must not have invited the sexual advances or sexual advances must be unwelcome
The harassment must have been severe enough to alter the terms of employment
Courts will look to the employer to see if they knew about the harassment and if they did anything about it
Nearly ¾ of women in the healthcare setting have been sexually harassed
Foutune© 500 companies spend an average of 1.6 Million each year to manage sexual harassment claims

12. Implementing the EEO Principles
Retaliatory Discharge
Workplace Searches
Electronic Monitoring
Employee Polygraph Protection Act (EPPA)
Drug Testing
HIPAA Compliance
Retaliatory Discharge
Occurs when an employer takes any materially adverse action that is likely to deter an employee form asserting a claim
Several federal statutes prohibit this action
Workplace Searches
Employers have an interest in monitoring employees for theft and attendance
Employees have limited privacy rights against search of a desk, office or work area
Electronic Monitoring
Employers use monitoring in the workplace to investigate organizational problems (IE productivity)
EPPA – provides guidelines for the use of polygraph test. Exemption apply to many in the healthcare field who manage controlled substances
Drug Testing
Healthcare organization have a desire to test workers due to the existence of controlled substances in the workplace
Several states have adopted laws that outline the administration of drug tests
HIPAA Compliance
Employers who provide self-insured health coverage for employees are subject to these rules in relation to their employees.

13. Employment at Will and Its Exceptions
May terminate the employment relationship for any non-illegal reason
Can not terminate for the following
Refusing to commit perjury
Employees reporting of safety violation
Whistleblower Protection
It is illegal for an employer to retaliate or mistreat an employee for whist blowing

14. Employment at Will and Its Exceptions
Personnel Policies
Policies, documents, disciplinary write-up may inadvertently imply a promise of continued employment
Employment Agreements
May erode the at will status through contract law

15. Termination Procedures
Documentation of the events leading to the termination are important
Employees have a right to receive ample notice and explanation of the employers dissatisfaction
Documentation is used to demonstrate fair treatment

16. Termination Procedures
Separation Agreements
Releases of legal claims
Employee promises not to sue

17. Grievance Procedures EEO Complaint Process
Public Employees’ Right to Due Process
ADR
EEO Complaint Process
Employees must first file with the EEOC
Three phases: counseling, formal complaint and appeal
If EEOC finds no cause employee can still file lawsuit in court
Public Employees’ Right to Due Process
Employment at will does not apply to public employees
Can not be fired without good reason
Must have notice and a hearing
ADR
Some employers require ADR
ADR does not prevent an EEOC process
Do not apply to unemployment or workers comp claims