Employment Law for Human Resource Practice

by Walsh, David J.

• ISBN13: 9780324180671
• ISBN10: 0324180675
• Edition: 1st
• Format: Hardcover
• Copyright: 2003-07-14
• Publisher: South-Western College/West

Summary

This text surveys the extensive and growing body of law regulating the employment relationship and influencing virtually every area of human resource practice. Each chapter explicitly considers the implications of the law for human resource practices. Chapters are organized around specific human resource practices.

Table of Contents

PART 1 INTRODUCTION TO EMPLOYMENT LAW
Overview of Employment Law
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	6	(1)
Statutes	6	(1)
Executive Orders	6	(1)
Regulations, Guidelines, and Administrative Decisions	6	(1)
Common Law	7	(1)
Substantive Rights Under Employment Law	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	8	(1)
Protection of Fundamental Rights	8	(1)
Compensation for Certain Types of Harm	8	(1)
Determining Which Employment Laws Apply	8	(3)
Public or Private Sector Employment	8	(1)
Unionized or Nonunion Workplace	9	(1)
Employer Size	9	(2)
Geographic Location	11	(1)
Government Contracts	11	(1)
Industry and Occupation	11	(1)
Historical Development of U.S. Employment Law	11	(2)
Procedures for Enforcing Employment Laws	13	(3)
What Does an Employee Decide to Do When She Believes That Her Rights Were Violated?	13	(1)
When Does the Employer Become Aware That There Is a Problem?	14	(1)
How Long Does the Employee Have to Bring a Case?	14	(1)
Can a Lawsuit Be Brought? By Whom?	15	(1)
The Changing Workplace: Alternative Dispute Resolution Procedures	16	(6)
Is There an Administrative Prerequisite to a Lawsuit?	16	(1)
Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding?	17	(1)
Enforceability of Mandatory Arbitration Agreements	17	(1)
Circuit City Stores v. Saint Clair Adams	18	(2)
Hooters of America v. Phillips	20	(2)
Remedies for Violations of Employment Laws	22	(1)
Implications of the Changing Workplace for U.S. Employment Law	23	(4)
The Employment Relationship
Clippings	27	(1)
The Importance of Determining Whether an Employment Relationship Exists	28	(1)
The Difficulty of Determining Whether an Employment Relationship Exists	28	(1)
The Changing Workplace: Growth of the Contingent Workforce	29	(1)
Who Is an Employee?	29	(12)
Independent Contractors	30	(1)
Donovan v. DialAmerica Marketing	31	(3)
Nelson v. Yellow Cab Co.	34	(2)
Temporary Workers	36	(1)
Students and Interns	37	(1)
New York University	38	(1)
Volunteers	39	(1)
Partners	40	(1)
A Few Other Issues Concerning Employee Status	41	(1)
Who Is the Employer?	41	(10)
Responsibility for the Actions of Supervisors and Other Agents	42	(1)
Single, Integrated Enterprise	42	(1)
Joint Employers	43	(1)
NLRB v. Western Temporary Services and the Classic Company	44	(2)
A Few Other Issues Concerning Employer Status	46	(5)
Overview of Employment Discrimination
Clippings	51	(1)
The Continuing Reality of Employment Discrimination	52	(1)
The Concept of Employment Discrimination	52	(1)
The Changing Workplace: The Contemporary Face of Discrimination	53	(2)
Protected Classes	54	(1)
Types of Discrimination	55	(3)
Disparate Treatment	56	(1)
Adverse Impact	56	(1)
Failure to Reasonably Accommodate	56	(1)
Retaliation	57	(1)
Disparate Treatment---A Closer Look	58	(8)
Types of Disparate Treatment	58	(2)
Analyzing Pretext Cases	60	(1)
McDonnell Douglas v. Green	61	(4)
Reeves v. Sanderson Plumbing	65	(1)
Adverse Impact---A Closer Look	66	(4)
Analyzing Adverse Impact Cases	67	(1)
Griggs v. Duke Power	68	(2)
Retaliation---A Closer Look	70	(7)
PART 2 THE HIRING PROCESS
Recruitment, Applications, and Interviews
Clippings	77	(1)
Recruitment	78	(8)
Evidence of Discrimination in Recruitment	78	(1)
Recruitment Mechanisms	79	(1)
EEOC v. Joe's Stone Crab	80	(6)
Applications and Interviews	86	(3)
Application Process	86	(1)
Thomas v. Washington County School Board	87	(2)
The Changing Workplace: Recruiting Foreign Nationals for U.S. Employment	89	(16)
Preemployment Inquiries	91	(3)
Griffin v. Steeltek	94	(2)
Statements by Employers	96	(1)
False Statements by Employees	97	(2)
Civil Service Systems	99	(6)
Background Checks, References, and Verifying Employment Eligibility
Clippings	105	(1)
Background Checks	105	(8)
Employer Responsibility for Employee Wrongdoing	106	(3)
Conducting Background Checks: General Advice	109	(1)
Ponticas v. K.M.S. Investments	110	(3)
References	113	(8)
Defamation	113	(2)
Sigal Construction v. Stanbury	115	(2)
Should Employers Provide Substantive References?	117	(1)
Davis v. Board of County Commissioners of Dona Ana County	118	(3)
Criminal Records	121	(1)
Credit Reports---Fair Credit Reporting Act	122	(2)
Verifying Employment Eligibility	124	(1)
Immigration Reform and Control Act Requirements	124	(1)
The Changing Workplace: Immigration and the U.S. Workforce	125	(6)
Employment Testing
Clippings	131	(1)
Drug Tests	132	(7)
Drug-Testing Procedures	133	(1)
Anchorage Police Department Employees Ass'n v. Municipality of Anchorage	134	(5)
Medical Examinations	139	(3)
Medical Examinations and the ADA	139	(2)
Alcohol Tests	141	(1)
HIV Tests	141	(1)
Polygraphs and Honesty Tests	142	(1)
The Changing Workplace: Genetic Testing of Applicants and Employees	143	(1)
Employee Polygraph Protection Act	144	(1)
Scored Tests of Ability	144	(15)
Examining Test Items	145	(1)
Examining Test Results	145	(1)
Establishing That Tests Are Job-Related and Consistent with Business Necessity	146	(3)
Albemarle Paper Co. v. Moody	149	(2)
Determining Appropriate Cutoff Levels for Test Scores	151	(1)
Lanning v. Septa	152	(2)
Accommodating Disabled Persons in Testing	154	(5)
Hiring and Promotion Decisions
Clippings	159	(1)
Criteria for Hiring and Promotion Decisions	160	(8)
Protected Class Characteristics---BFOQ Defense	160	(5)
Frank v. United Airlines	165	(2)
Other Subjective Criteria	167	(1)
Offering and Accepting Employment	168	(3)
Medina v. Ramsey Steel Co.	169	(2)
The Changing Workplace: Legal Implications of Changes in Jobs and Hiring Criteria	171	(2)
Obstacles to Advancement on the Job	173	(14)
Promotions	173	(1)
Butler v. Home Depot	174	(3)
Glass Ceilings	177	(2)
Seniority and the BFSS Defense	179	(8)
PART 3 MANAGING A DIVERSE WORKFORCE
Affirmative Action
Clippings	187	(1)
When Is Affirmative Action Required?	188	(2)
Government Contractors	188	(2)
Settlements and Court Orders	190	(1)
Distinguishing Legal Affirmative Action from Reverse Discrimination	190	(9)
The Legality of Affirmative Action Under Title VII	192	(1)
Johnson v. Transportation Agency, Santa Clara County	193	(3)
Taxman v. Board of Education of the Township of Piscataway	196	(2)
The Legality of Affirmative Action Under the U.S. Constitution	198	(1)
Ingredients of Affirmative Action Plans	199	(4)
Reasonable Self-Analysis	199	(1)
Reasonable Basis for Affirmative Action	200	(2)
Reasonable Affirmative Actions	202	(1)
Evaluating Affirmative Action	203	(5)
Officers for Justice v. City and County of San Francisco	205	(2)
Effects of Affirmative Action	207	(1)
The Changing Workplace: Diversity and Affirmative Action	208	(7)
Harassment
Clippings	215	(1)
Harassment as a Form of Discrimination	216	(1)
``Because of Sex''	216	(1)
The Changing Workplace: Harassment and Contemporary Discrimination	217	(3)
Oncale v. Sundowner Offshore Services	218	(2)
Recognizing Harassment	220	(7)
What Behaviors Constitute Harassment?	220	(3)
Harris v. Forklift Systems	223	(3)
When Are Harassing Behaviors Unwelcome?	226	(1)
Liability for Harassment	227	(3)
Harassment by Top Officials, Managers, and Supervisors	227	(2)
Harassment by Coworkers or Third Parties	229	(1)
Eliminating Harassment	230	(13)
Harassment Policies and Complaint Procedures	230	(1)
Wilson v. Tulsa Junior College	231	(4)
Responding to Reports of Harassment	235	(8)
Reasonably Accommodating Disability and Religion
Clippings	243	(1)
Reasonable Accommodation of Disability	244	(11)
Disability	244	(2)
Toyota Motor Manufacturing v. Williams	246	(3)
``Qualified''	249	(2)
Examples of Reasonable Accommodation of Disability	251	(1)
The Process of Reasonably Accommodating Disability	252	(2)
What Makes an Accommodation Reasonable?	254	(1)
The Changing Workplace: Attendance Requirements and Disabled Persons	255	(5)
U.S. Airways v. Barnett	257
When Does an Accommodation Impose Undue Hardship?	256	(4)
Reasonable Accommodation of Religion	260	(3)
Religion	260	(1)
Failure to Reasonably Accommodate Religion	261	(2)
Religious Advocacy and Religious Harassment	263	(2)
Religious Organization Exemption	265	(6)
Work-Life Conflicts and Other Diversity Issues
Clippings	271	(1)
Work-Life Conflicts and Employer Leave Policies	272	(1)
Leave Under the Family and Medical Leave Act	272	(1)
The Changing Workplace: Workforce Diversity and Work-Life Conflicts	273	(11)
Bachelder v. America West Airlines	277	(5)
Leave Policies	282	(1)
Leave and the Pregnancy Discrimination Act	283	(1)
Leave to Perform Civic Duties	283	(1)
Language Requirements and National Origin Discrimination	284	(5)
English Fluency and Accents	285	(1)
English-Only Rules	286	(1)
EEOC v. Premier Operator Services	287	(2)
Discrimination Based on Sexual Orientation	289	(12)
Protection Under Federal Law	289	(2)
McVeigh v. Cohen	291	(2)
Protection Under State and Local Laws	293	(8)
PART 4 PAY, BENEFITS, TERMS AND CONDITIONS OF EMPLOYMENT
Wages, Hours, and Pay Equity
Clippings	301	(1)
Fair Labor Standards Act---Wage and Hour Standards	302	(3)
Minimum Wage	302	(1)
Overtime Pay	303	(1)
Determining Compliance with Wage and Hour Standards	304	(1)
Compensation Received	304	(1)
The Changing Workplace: Work Hours and the Intensification of Work	305	(13)
Compensable Hours	306	(1)
Pabst v. Oklahoma Gas & Electric Co.	307	(3)
Exemptions from FLSA Requirements	310	(5)
Jackson v. Go-Tane Services	315	(3)
Other Wage Laws	318	(2)
What About Farm Workers?	319	(1)
Limitations on Work Hours	320	(1)
Discrimination in Pay---Equal Pay Act	321	(5)
Prima Facie Case of Pay Discrimination	321	(1)
Factors Other Than Sex	322	(1)
Stanley v. University of Southern California	323	(2)
Comparable Worth	325	(1)
Pay Secrecy Policies	326	(5)
Benefits
Clippings	331	(1)
What Benefits Must Employers Provide?	332	(1)
What Does ERISA Require?	332	(9)
Inform Employees About Their Benefits	333	(1)
Deliver on Promised Benefits	334	(1)
Lain v. UNUM Life Insurance Co.	335	(2)
Provide Claims and Appeals Procedures for Benefits	337	(1)
Manage Plans Wisely and in Employees' Interest---Fiduciary Duties	338	(1)
Refrain from Interference with or Retaliation Against Beneficiaries	338	(1)
Griggs v. E.I. DuPont de Nemours & Co.	339	(2)
Pensions	341	(3)
Vesting and Participation	341	(1)
Types of Pension Plans	342	(1)
Cash-Balance Plans	343	(1)
The Changing Workplace: Defined Contribution Plans and Shifting Risk	344	(1)
Older Workers and Benefit Plans	345	(1)
Health Insurance	346	(6)
Legal Challenges to Managed Care	346	(1)
Maintaining Health Insurance Coverage---COBRA and HIPAA	347	(2)
McDowell v. Krawchison	349	(2)
Discrimination in Health Insurance Benefits	351	(1)
Domestic Partner Benefits	352	(7)
Unions and Collective Bargaining
Clippings	359	(1)
The Idea of Collective Bargaining	360	(1)
Basic Features of the National Labor Relations Act	361	(7)
Employee Rights Under the NLRA	362	(2)
NLRB v. Caval Tool Division	364	(2)
Unfair Labor Practices	366	(2)
The Changing Workplace: Employee Involvement Programs and the NLRA	368	(3)
Crown Cork & Seal Co.	369	(2)
Union Organizing and Representation Elections	371	(7)
Union Organizing Campaigns	371	(1)
Employer Responses to Union Organizing	371	(1)
Multi-Ad Services v. NLRB	372	(4)
Representation Election Procedures	376	(2)
Bargaining	378	(5)
Duty to Bargain in Good Faith	378	(2)
What Happens When Parties Cannot Reach Agreement?	380	(3)
Labor Agreements	383	(8)
Enforcing Labor Agreements---Grievance Procedures and Arbitration	383	(8)
Occupational Safety and Health
Clippings	391	(1)
Basic Features of the Occupational Safety and Health Act	392	(6)
How Safe Is ``Safe Enough''?	393	(4)
How Is the OSH Act Enforced?	397	(1)
The Changing Workplace: The Problem of Ergonomic Hazards	398	(6)
Secretary of Labor v. Beverly Enterprises	399	(4)
Recording and Reporting Requirements	403	(1)
Means of Preventing Occupational Injuries and Illnesses	404	(1)
Basic Features of State Workers' Compensation Statutes	405	(9)
Exclusive Remedy	407	(1)
Laidlow v. Hariton Machinery	408	(2)
Arising out of and in the Course of Employment	410	(1)
Wright v. Beverly Fabrics	411	(3)
Responding to Workplace Injuries	414	(7)
PART 5 MANAGING PERFORMANCE
Performance Appraisals, Training, and Development
Clippings	421	(1)
Performance Appraisals	421	(13)
The Legal Significance of Performance Appraisals	422	(1)
Performance Criteria and Standards	423	(2)
Performance Appraisal Process	425	(1)
Thomas v. Eastman Kodak Co.	426	(8)
Training and Development	434	(7)
When Is Training Legally Required?	434	(3)
Selection of Trainees	437	(1)
Hoffman v. Caterpillar	438	(3)
The Changing Workplace: Training and the New Psychological Contract	441	(8)
Contents of Training Programs	442	(1)
Altman v. Minnesota Department of Corrections	443	(6)
Privacy on the Job: Information, Monitoring, and Investigations
Clippings	449	(1)
Overview of Workplace Privacy Protections	450	(6)
Constitutional Protection of Privacy	450	(1)
O'Connor v. Ortega	451	(2)
Common Law Protection of Privacy	453	(2)
Statutory Protection of Privacy	455	(1)
Handling Records and Employee Information	456	(3)
Personnel Records---The Privacy Act	456	(1)
Medical Information	457	(2)
Monitoring and Surveillance of Employees	459	(2)
Video Surveillance	459	(1)
Telephone, E-Mail, and Internet Use---Electronic Communications Privacy Act	460	(1)
The Changing Workplace: The Electronic Workplace and Employee Privacy	461	(4)
Bohach v. City of Reno	463	(2)
Investigation of Employee Conduct	465	(16)
Using Outside Investigators	465	(1)
Searches	466	(1)
Interviews and Interrogations	467	(1)
Dietz v. Finlay Fine Jewelry	468	(3)
Polygraphs	471	(1)
Acting on Results of Investigations	472	(9)
PART 6 TERMINATING EMPLOYMENT
Terminating Nonunion, Private Sector Employees---Employment at Will with Exceptions
Clippings	481	(1)
Employment at Will with Exceptions	482	(1)
Determining Whether a Termination Has Occurred---Constructive Discharge	483	(1)
Impermissible Grounds for Termination	484	(21)
Termination in Breach of an Implied Contract	485	(2)
Jones v. Lake Park Care Center	487	(5)
Termination in Retaliation for an Act Supporting Public Policy	492	(3)
Gardner v. Loomis Armored	495	(5)
Termination Based on or Related to Protected Class Characteristics	500	(1)
Kohls v. Beverly Enterprises	501	(4)
Handling Terminations	505	(8)
Terminating Unionized and Public Employees---Just Cause and Due Process
Clippings	513	(1)
Employees Represented by Unions	514	(8)
Labor Arbitration in Discipline and Discharge Cases	514	(1)
The Meaning of Just Cause	515	(3)
The Finality of Arbitration Decisions	518	(1)
City of Brooklyn Center v. Law Enforcement Labor Services	519	(3)
Public Employees	522	(10)
Civil Service and Tenure Laws	522	(1)
Constitutional Protections	523	(1)
Cleveland Board of Education v. Loudermill	524	(3)
Pappas v. Giuliani	527	(5)
Other Employees Not Employed at Will	532	(7)
Employees with Express Contracts of Employment	532	(1)
Montana Wrongful Discharge from Employment Act	533	(6)
Downsizing, Unemployment Insurance, and Other Posttermination Issues
Clippings	539	(1)
Downsizing	540	(15)
The Decision to Downsize	540	(2)
Informing Employees of Impending Downsizing---WARN Act	542	(2)
Selecting Employees for Downsizing	544	(1)
EEOC v. Board of Regents of the University of Wisconsin	545	(6)
Early Retirement Offers	551	(1)
Effects of Bankruptcy on Labor Agreements, Wages, and Benefits	552	(1)
McAuley v. IBM	553	(2)
Unemployment Insurance	555	(2)
Eligibility Criteria and Benefits	555	(1)
Responding to Unemployment Insurance Claims	556	(1)
Other Posttermination Issues	557	(1)
Restrictive Covenants	557	(1)
The Changing Workplace: Employee Mobility in a Knowledge-Based Economy	558	(11)
Modern Environments v. Stinnett	559	(1)
Trade Secrets and Other Postemployment Legal Issues	560	(2)
Omega Optical v. Chroma Technology Corp.	562	(7)
Glossary	569	(16)
Case Index	585	(4)
Subject Index	589