Employment Law for Human Resource Practice

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ISBN: 9780324180671 | 0324180675
Cover: Hardcover
Copyright: 7/14/2003

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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.

PART 1 INTRODUCTION TO EMPLOYMENT LAW

Overview of Employment Law

Clippings

(1)

Heard at the Staff Meeting

(1)

U.S. Employment Law Is a Fragmented Work-in-Progress

(1)

Sources of Employment Law

(2)

Constitutions

(1)

Statutes

(1)

Executive Orders

(1)

Regulations, Guidelines, and Administrative Decisions

(1)

Common Law

(1)

Substantive Rights Under Employment Law

(1)

Nondiscrimination and Equal Employment Opportunity

(1)

Freedom to Engage in Concerted Activity and Collective Bargaining

(1)

Terms and Conditions of Employment That Meet Minimum Standards

(1)

Protection of Fundamental Rights

(1)

Compensation for Certain Types of Harm

(1)

Determining Which Employment Laws Apply

(3)

Public or Private Sector Employment

(1)

Unionized or Nonunion Workplace

(1)

Employer Size

(2)

Geographic Location

(1)

Government Contracts

(1)

Industry and Occupation

(1)

Historical Development of U.S. Employment Law

(2)

Procedures for Enforcing Employment Laws

(3)

What Does an Employee Decide to Do When She Believes That Her Rights Were Violated?

(1)

When Does the Employer Become Aware That There Is a Problem?

(1)

How Long Does the Employee Have to Bring a Case?

(1)

Can a Lawsuit Be Brought? By Whom?

(1)

The Changing Workplace: Alternative Dispute Resolution Procedures

(6)

Is There an Administrative Prerequisite to a Lawsuit?

(1)

Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding?

(1)

Enforceability of Mandatory Arbitration Agreements

(1)

Circuit City Stores v. Saint Clair Adams

(2)

Hooters of America v. Phillips

(2)

Remedies for Violations of Employment Laws

(1)

Implications of the Changing Workplace for U.S. Employment Law

(4)

The Employment Relationship

Clippings

(1)

The Importance of Determining Whether an Employment Relationship Exists

(1)

The Difficulty of Determining Whether an Employment Relationship Exists

(1)

The Changing Workplace: Growth of the Contingent Workforce

(1)

Who Is an Employee?

(12)

Independent Contractors

(1)

Donovan v. DialAmerica Marketing

(3)

Nelson v. Yellow Cab Co.

(2)

Temporary Workers

(1)

Students and Interns

(1)

New York University

(1)

Volunteers

(1)

Partners

(1)

A Few Other Issues Concerning Employee Status

(1)

Who Is the Employer?

(10)

Responsibility for the Actions of Supervisors and Other Agents

(1)

Single, Integrated Enterprise

(1)

Joint Employers

(1)

NLRB v. Western Temporary Services and the Classic Company

(2)

A Few Other Issues Concerning Employer Status

(5)

Overview of Employment Discrimination

Clippings

(1)

The Continuing Reality of Employment Discrimination

(1)

The Concept of Employment Discrimination

(1)

The Changing Workplace: The Contemporary Face of Discrimination

(2)

Protected Classes

(1)

Types of Discrimination

(3)

Disparate Treatment

(1)

Adverse Impact

(1)

Failure to Reasonably Accommodate

(1)

Retaliation

(1)

Disparate Treatment---A Closer Look

(8)

Types of Disparate Treatment

(2)

Analyzing Pretext Cases

(1)

McDonnell Douglas v. Green

(4)

Reeves v. Sanderson Plumbing

(1)

Adverse Impact---A Closer Look

(4)

Analyzing Adverse Impact Cases

(1)

Griggs v. Duke Power

(2)

Retaliation---A Closer Look

(7)

PART 2 THE HIRING PROCESS

Recruitment, Applications, and Interviews

Clippings

(1)

Recruitment

(8)

Evidence of Discrimination in Recruitment

(1)

Recruitment Mechanisms

(1)

EEOC v. Joe's Stone Crab

(6)

Applications and Interviews

(3)

Application Process

(1)

Thomas v. Washington County School Board

(2)

The Changing Workplace: Recruiting Foreign Nationals for U.S. Employment

(16)

Preemployment Inquiries

(3)

Griffin v. Steeltek

(2)

Statements by Employers

(1)

False Statements by Employees

(2)

Civil Service Systems

(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)

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Employment Law for Human Resource Practice

Summary

Table of Contents

Supplemental Materials