Employment Law For Human Resource Practice

by Walsh, David J.

• ISBN13: 9780324303933
• ISBN10: 0324303939
• Edition: 2nd
• Format: Hardcover
• Copyright: 2006-05-24
• Publisher: South-Western College/West

Summary

Do jobs have their own life cycles? You bet they do! EMPLOYMENT LAW AND HUMAN RESOURCE PRACTICE explains the system of human resources by focusing on the three basic stages of the employment life cycle: hiring, managing, and firing. From legal issues to methods and techniques for helping employees achieve their potential, EMPLOYMENT LAW AND HUMAN RESOURCE PRACTICE gives you all you need to succeed in class and contribute in real world employment settings.

Table of Contents

PART 1 Introduction to Employment Law
Overview of Employment Law	3	(30)
Clippings	3	(1)
Heard at the Staff Meeting	4	(1)
U.S. Employment Law Is a Fragmented Work in Progress	5	(1)
Sources of Employment Law	5	(2)
Constitutions	5	(1)
Statutes	6	(1)
Executive Orders	6	(1)
Regulations, Guidelines, and Administrative Decisions	6	(1)
Common Law	6	(1)
Substantive Rights Under Employment Laws	7	(1)
Nondiscrimination and Equal Employment Opportunity	7	(1)
Freedom to Engage in Concerted Activity and Collective Bargaining	7	(1)
Terms and Conditions of Employment That Meet Minimum Standards	7	(1)
Protection of Fundamental Rights	8	(1)
Compensation for Certain Types of Harm	8	(1)
Gardner v. Loomis	8	(3)
Determining Which Employment Laws Apply	11	(5)
Public or Private Sector Employment	11	(1)
Unionized or Nonunion Workplace	11	(1)
Employer Size	12	(1)
Geographic Location	13	(1)
Government Contracts	13	(1)
Industry and Occupation	14	(1)
Historical Development of U.S. Employment Law	14	(2)
Procedures for Enforcing Employment Laws	16	(3)
What Does an Employee Decide to Do When She Believes That Her Rights Were Violated?	16	(1)
How Long Does the Employee Have to Bring a Case?	16	(1)
Can a Lawsuit Be Brought? By Whom?	17	(1)
Is There an Administrative Prerequisite to a Lawsuit?	18	(1)
Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding?	18	(1)
The Changing Workplace: Alternative Dispute Resolution Procedures	19	(1)
Enforceability of Mandatory Arbritration Agreements	19	(2)
Ingle v. Circuit City Stores	21	(3)
Campbell v. General Dynamics	24	(3)
Remedies for Violations of Employment Laws	27	(1)
Implications of the Changing Workplace for U.S. Employment Law	28	(5)
The Employment Relationship	33	(28)
Clippings	33	(1)
The Changing Workplace: Contingent and Alternative Work Arrangements	34	(1)
The Importance of Determining Whether an Employment Relationship Exists	34	(1)
Who is An Employee?	35	(1)
Independent Contractors	36	(1)
Baker v. Flint Engineering & Construction	36	(4)
Nelson v. Yellow Cab Co.	40	(8)
Temporary Workers	42	(1)
Students and Interns	43	(2)
Volunteers	45	(1)
Partners	46	(1)
Other Issues Concerning Employee Status	47	(1)
Who Is the Employer?	48	(2)
Agency	48	(1)
Single, Integrated Enterprise	49	(1)
Joint Employers	50	(1)
Zheng v. Liberty Apparel Co.	50	(11)
Other Issues Concerning Employer Status	55	(6)
Overview of Employment Discrimination	61	(36)
Clippings	61	(1)
The Continuing Reality of Employment Discrimination	62	(1)
The Concept of Employment Discrimination	62	(1)
The Changing Workplace: The Contemporary Face of Discrimination	63	(3)
Protected Classes	65	(1)
Types of Discrimination	66	(3)
Disparate Treatment---a Closer Look	69	(7)
Types of Disparate Treatment Cases	69	(2)
Analyzing Pretext Cases	71	(5)
Laxton v. GAP Inc.	76	(4)
Adverse Impact---A Closer Look	80	(1)
Smith v. City of Jackson	81	(4)
Analyzing Adverse Impact Cases	83	(2)
Retaliation---A Closer Look	85	(1)
Gallina v. Mintz Levin	86	(11)
Analyzing Retaliation Cases	88	(9)
PART 2 The Hiring Process
Recruitment, Applications, and Interviews	97	(28)
Clippings	97	(1)
Recruitment	98	(1)
Evidence of Discrimination in Recruitment	98	(1)
EEOC v. Joe's Stone Crab	99	(7)
Recruitment Mechanisms	102	(4)
The Changing Workplace: Recruiting Foreign Nationals for U.S. Employment	106	(1)
Applications and Interviews	107	(5)
Application Process	107	(2)
Preemployment Inquiries	109	(3)
Griffin v. Steeltek	112	(3)
Statements by Employers	114	(1)
Stewart v. Jackson & Nash	115	(10)
False Statements by Employees	117	(8)
Background Checks, References, and Verifying Employment Eligibility	125	(28)
Clippings	125	(1)
Background Checks	126	(2)
Employer Responsibility for Employee Wrongdoing	126	(1)
Negligent Hiring	127	(1)
Ponticas v. K.M.S. Investments	128	(6)
References	134	(2)
Defamation	134	(2)
Sigal Construction v. Stanbury	136	(2)
Negligent Referral	138	(1)
Davis v. The Board of County Commissioners of Dona Ana County	138	(4)
Criminal Records	142	(1)
Credit Reports---The Fair Credit Reporting Act	143	(3)
The Changing Workplace: Immigration and the U.S. Workforce	146	(1)
Verifying Employment Eligibility	146	(7)
The Immigration Reform and Control Act	146	(7)
Employment Testing	153	(30)
Clippings	153	(1)
Drug Tests	154	(3)
Drug-Testing Procedures	156	(1)
Mission Petroleum Carriers v. Solomon	157	(4)
Medical Examinations	161	(2)
Medical Examinations and the ADA	161	(2)
Leonel v. American Airlines	163	(3)
The Changing Workplace: Genetic Testing and Employment	166	(1)
Polygraphs and Honesty Tests	167	(1)
Scored Tests of Ability	168	(7)
Examining Test Items	168	(1)
Examining Test Results	169	(1)
Establishing That Tests Are Job-Related and Consistent With Business Necessity	170	(3)
Determining Appropriate Cutoff Levels for Test Scores	173	(2)
Lanning v. Septa (I)	175	(1)
Lanning v. Septa (II)	176	(7)
Accommodating Disabled Persons in Testing	178	(5)
Hiring and Promotion Decisions	183	(32)
Clippings	183	(1)
Criteria for Hiring and Promotion Decisions	184	(4)
Facially Discriminatory Policies/Practices---BFOQ Defense	184	(3)
``Sex-Plus'' Cases	187	(1)
Weight and Appearance	187	(1)
Everson v. Michigan Department of Corrections	188	(6)
Sex-Stereotyping	192	(2)
Back v. Hasting on Hudson Union Free School District	194	(4)
Subjective Criteria	197	(1)
The Changing Workplace: Legal Implications of Changes in Jobs and Hiring Criteria	198	(1)
Medina v. Ramsey Steel Co.	199	(2)
Offering and Accepting Employment	201	(2)
Obstacles to Advancement on the Job	203	(12)
Promotions	203	(2)
Glass Ceilings	205	(2)
Seniority and the BFSS Defense	207	(8)
PART 3 Managing a Diverse Workforce
Affirmative Action	215	(26)
Clippings	215	(1)
When is Affirmative Action Required?	216	(3)
Government Contractors	217	(1)
Settlements and Court Orders	218	(1)
Distinguishing Legal Affirmative Action from Reverse Discrimination	219	(1)
The Legality of Affirmative Action Under Title VII	220	(1)
Johnson v. Transportation Agency, Santa Clara County	220	(3)
Taxman v. Board of Education of the Township of Piscataway	223	(4)
The Legality of Affirmative Action Under the U.S. Constitution	226	(1)
Petit v. City of Chicago	227	(3)
Ingredients of Affirmative Action Plans	230	(6)
Reasonable Self-Analysis	230	(1)
Reasonable Basis for Affirmative Action	231	(2)
Reasonable Affirmative Actions	233	(1)
Effects of Affirmative Action	234	(2)
The Changing Workplace: Diversity and Affirmative Action	236	(5)
Harassment	241	(36)
Clippings	241	(1)
Harassment as a Form of Discrimination	242	(2)
``Because of Sex''	242	(2)
Recognizing Harassment	244	(1)
What Behaviors Constitute Harassment?	244	(1)
The Changing Workplace: Harassment and Workplace Bullying	245	(5)
Harassment That Results in Tangible Employment Actions	246	(1)
Hostile Environment Harassment	246	(4)
Petrosino v. Bell Atlantic	250	(5)
When Are Harassing Behaviors Unwelcome?	254	(1)
Liability for Harassment	255	(3)
Harassment by Top Officials, Managers, and Supervisors	255	(3)
Pennsylvania State Police v. Suders	258	(3)
Holly D. V. California Institute of Technology	261	(4)
Harassment by Coworkers or Third Parties	264	(1)
Eliminating Harassment	265	(12)
Harassment Policies and Complaint Procedures	265	(2)
Responding to Reports of Harassment	267	(10)
Reasonably Accommodating Disability and Religion	277	(34)
Clippings	277	(1)
Reasonable Accommodation of Disability	278	(2)
Disability	278	(2)
Emory v. Astrazeneca Pharmaceuticals	280	(11)
``Qualified Individual with a Disability''	285	(2)
Reasonable Accommodation	287	(1)
The Process of Reasonably Accommodating Disability	288	(2)
What Makes an Accommodation Reasonable?	290	(1)
The Changing Workplace: Telework as a Reasonable Accommodation	291	(2)
When Does an Accommodation Impose Undue Hardship?	292	(1)
Smith v. Henderson	293	(3)
Reasonable Accommodation of Religion	296	(4)
Religion	296	(1)
Failure to Reasonably Accommodate Religion	297	(3)
Cloutier v. Costco	300	(3)
Religious Advocacy and Religious Harassment	303	(2)
Religious Organization Exemption	305	(6)
Work-Life Conflicts and Other Diversity Issues	311	(34)
Clippings	311	(1)
Work-Life Conflicts and Employer Leave Policies	312	(1)
Family and Medical Leave Act	312	(1)
The Changing Workplace: Workforce Diversity and Work-Life Conflicts	313	(5)
Walton v. Ford Motor Company	318	(3)
Bachelder v. America West Airlines	321	(8)
Pregnancy Discrimination Act	327	(1)
Leave to Perform Civic Duties	328	(1)
Uniformed Services Employment and Reemployment Rights Act (USERRA)	328	(1)
Language Requirements and National Origin Discrimination	329	(2)
English Fluency and Accents	329	(2)
English-Only Rules	331	(1)
EEOC v. Premier Operator Services	331	(3)
Discrimination Based on Sexual Orientation	334	(11)
Protection Under Federal Law	334	(1)
Protection Under State and Local Laws	335	(1)
Transgender and Transsexual Persons	336	(9)
PART 4 Pay, Benefits, Terms and Conditions of Employment
Wages, Hours, and Pay Equity	345	(34)
Clippings	345	(1)
Fair Labor Standards Act---Wage and Hour Standards	346	(2)
Minimum Wage	346	(1)
Overtime Pay	347	(1)
The Changing Workplace: Work Hours and the Intensification of Work	348	(1)
Determining Compliance with Wage and Hour Standards	349	(3)
Compensation Received	349	(1)
Compensable Time	350	(2)
IBP v. Alvarez/Tum v. Barber Foods	352	(8)
Exemptions from FLSA Requirements	355	(5)
Martin v. Indiana Michigan Power Company	360	(4)
Other Wage Laws	364	(2)
What About Farm Workers?	365	(1)
Limitations on Work Hours	366	(1)
Discrimination in Pay---Equal Pay Act	366	(2)
Proving Pay Discrimination Under the Equal Pay Act	367	(1)
Equal Work	367	(1)
Wheatley v. Wicomico County	368	(11)
Factors Other Than Sex	371	(1)
Comparable Worth	372	(1)
Pay Secrecy Policies	373	(6)
Benefits	379	(30)
Clippings	379	(1)
What Benefits Must Employers Provide?	380	(1)
What Does Erisa Require?	380	(4)
Inform Employees About Their Benefits	381	(1)
Deliver on Promised Benefits	382	(1)
Provide Claims and Appeals Procedures	383	(1)
Manage Plans Wisely and in Employees' Interests---Fiduciary Duties	384	(1)
Peralta v. Hispanic Business	384	(3)
Refrain from Interference or Retaliation	386	(1)
Pensions	387	(3)
Vesting and Participation	387	(1)
Types of Pension Plans	388	(2)
The Changing Workplace: Defined Contribution Plans and Shifting Risk to Employees	390	(3)
Health Insurance	393	(3)
Legal Challenges to Managed Care	393	(1)
Maintaining Coverage---COBRA and HIPAA	394	(2)
McDowell v. Krawchison	396	(2)
Retiree Health Benefits	397	(1)
Vallone v. CNA Financial	398	(2)
Discrimination and Benefits	400	(9)
Domestic Partner Benefits	402	(7)
Unions and Collective Bargaining	409	(36)
Clippings	409	(1)
The Idea of Collective Bargaining	410	(1)
The National Labor Relations Act (NLRA)	411	(2)
Employee Rights Under the NLRA	412	(1)
NLRB v. Caval Tool Division	413	(5)
Unfair Labor Practices (ULPs)	417	(1)
The Changing Workplace: Employee Involvement and the NLRA	418	(2)
Union Organizing and Representation Elections	420	(1)
Union Organizing Campaigns	420	(1)
Multi-Ad Services v. NLRB	421	(7)
Employer Responses to Union Organizing	423	(3)
Representation Election Procedures	426	(2)
Bargaining	428	(1)
Duty to Bargain in Good Faith	428	(1)
Pleasantview Nursing Home v. NLRB	429	(7)
What Happens When Parties Cannot Reach Agreement?	433	(3)
Labor Agreements	436	(9)
Enforcing Labor Agreements---Grievance Procedures and Arbitration	436	(9)
Occupational Safety and Health	445	(34)
Clippings	445	(1)
The Occupational Safety and Health Act	446	(6)
How Safe Is ``Safe Enough''?	447	(5)
The Changing Workplace: Ergonomic Hazards	452	(1)
Secretary of Labor v. Beverly Enterprises	452	(6)
How Is the OSH Act Enforced?	455	(2)
Recording and Reporting Requirements	457	(1)
Preventing Occupational Injuries and Illnesses	458	(2)
Workers' Compensation	460	(2)
Exclusive Remedy	461	(1)
Laidlow v. Hariton Machinery	462	(3)
Arising Out of and in the Course of Employment	465	(1)
Wright v. Beverly Fabrics	465	(3)
McCrone v. Bank One Corporation	468	(3)
Responding to Workplace Injuries	471	(8)
PART 5 Managing Performance
Performance Appraisals, Training, and Development	479	(28)
Clippings	479	(1)
Performance Appraisals	480	(4)
Performance Criteria and Standards	481	(3)
Performance Appraisal Process	484	(1)
Thomas v. Eastman Kodak	484	(6)
Training and Development	490	(1)
When Is Training Legally Required?	490	(1)
The Changing Workplace: Training and the New Psychological Contract	491	(5)
Selection of Trainees	496	(1)
Hoffman v. Caterpillar	496	(4)
Contents of Training Programs	500	(1)
Altman v. Minnesota Department of Corrections	500	(7)
Privacy on the Job: Information, Monitoring, and Investigations	507	(34)
Clippings	507	(1)
Overview of Workplace Privacy Protections	508	(1)
Constitutional Protection	508	(1)
O'Connor v. Ortega	508	(6)
Common Law Protection	511	(3)
Statutory Protection of Privacy	514	(1)
Handling Records and Employee Information	514	(3)
Personnel Records	514	(2)
Medical Information	516	(1)
Monitoring and Surveillance of Employees	517	(2)
Video Surveillance	517	(2)
Electronic Communications	519	(1)
The Changing Workplace: The Electronic Workplace and Employee Privacy	519	(2)
Konop v. Hawaiian Airlines	521	(4)
Investigation of Employee Conduct	525	(2)
Searches	526	(1)
Interviews and Interrogations	527	(1)
Dietz v. Finlay Fine Jewelry	527	(14)
Polygraphs	531	(1)
Acting on Results of Investigations	532	(9)
PART 6 Terminating Employment
Terminating Individual Employees	541	(46)
Clippings	541	(1)
Determining Whether a Termination Has Occurred---Constructive Discharge	542	(1)
Employment at will with Exceptions	543	(1)
Impermissible Grounds for Termination	544	(4)
Breach of an Implied Contract	545	(3)
Dillon v. Champion Jogbra	548	(6)
Retaliation for an Act Supporting Public Policy	553	(1)
Lloyd v. Drake University	554	(5)
Whistleblower Protection Statutes	559	(1)
Collins v. Beazer Homes USA	559	(8)
Discriminatory Termination	565	(2)
Just Cause/Due Process	567	(5)
Unionized Employees	567	(3)
Public Employees	570	(1)
Civil Service and Tenure Laws	570	(1)
Constitutional Protections	571	(1)
Pappas v. Giuliani	572	(7)
Montana Wrongful Discharge from Employment Act	578	(1)
Handling Terminations	579	(8)
Downsizing and Posttermination Issues	587	(32)
Clippings	587	(1)
Downsizing	588	(4)
The Decision to Downsize	588	(2)
Informing Employees Prior to Downsizing---WARN Act	590	(2)
Roquet v. Arthur Andersen	592	(3)
Selecting Employees for Downsizing	594	(1)
EEOC v. Board of Regents of the University of Wisconsin	595	(8)
Early Retirement Offers	601	(1)
Effects of Bankruptcy on Employee Rights	602	(1)
Posttermination Issues	603	(3)
Unemployment Insurance	603	(2)
Restrictive Covenants	605	(1)
Victoria's Secret Stores v. May Department Stores	606	(3)
The Changing Workplace: Restrictive Covenants and Control of Human Capital	609	(10)
Glossary	619	(18)
Case Index	637	(2)
Subject Index	639