Workplace - U.S. Employment Law & Regulations Flashcards
Sources of Law
The Constitution
Statutes
Regulations
Agency Guidelines
Executive Orders
Common Law
Things that every business should have in place to be compliant and to prevent potential liabilities and EE lawsuits:
- Workplace policies, procedures, training program
- Workplace posters
- New EE orientation
- Workers Comp Insurance
- Proper withholding from taxes
- Compliance training
- Code of Conduct
HR Professionals should be aware of the importance and limits of attorney client privilege’s
HR should be forthcoming in sharing any and all information they think may be relevent to the issue at hand
HR should speak to opposing counsel only under the direction of the employers attorney
Compliant Workplaces–HR should:
- Ensure confidentiality
- Select an appropriate investigator
- Create a plan
- Conduct interviews
- Create a report, if appropriate
The concept of EEO
Employers should not make employment decisions on the basis of an applicants or employees (protected items) race, sex, ethnicity, national origin, citizenship, religion, age, color, military status, genetic info, FMLA entitlement, disability status, sexual orientation, gender identity, gender expression.
Protected Classes
Describes people who are covered under a particular federal, state, or local antidiscrimination law
Disparate Treatment v. Disparate Impact
Disparate Treatment: Discrimination occurs when an applicant or EE is treated differently because of his or her membership in a protected class.
Disparate Impact: Results when a policy that appears to be neutral has a discrimination effect.
Terms embedded in T7 legislation
- National Origin: place of birth
- Race: certain race or personal characteristics
- Sex: biological and physiological characteristics
- Gender: masculinity v. femininity
- Sexual orientation: attraction to another
T7 provisions include the following:
- Recruiting, hiring, advancement
- Segregation and classification of EEs
- Harassment/hostile work environment
- Compensation
- Other terms, conditions, and privileges of employment
Exceptions that affect the application of T7:
- Work related requirements: required by business necessity
- BFOQ: reasonably necessary to carrying out a particular job function (race/color never a BFOQ)
- Bona fide seniority system: seniority systems that were not designed to discriminate
- Affirmative action plans
EEO Act
The EEO act amended T7 and gave the EEOC authority to ‘back up’ its administrative findings and conduct its own enforcement litigation.
*EEOC could work on your behalf prior to courts
Pregnancy Discrimination Act (PDA)
Amended T7 to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions; it requires employers to treat pregnancy the same as any other temporary disability
Uniform Guidelines on Employee Selection Procedures
Covers all aspects of the selection process, including recruiting, testing, interviewing, and performance appraisals
*How to hire and legally defend
Four-fifths Rule
As a rule, this occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate.
200 apps (100 men and 100 women)
80/100=.8
60/100-.6
80 men hired and 60 women hired
60/80=75%==>could be an indication of adverse impact
*Adverse impact is indicated if the selection rate of the minority group is less than 80% of the selection rate of the majority group
Civil Rights Court Cases
Griggs v Duke Power: set standard for determining whether discrimination based on disparate impact exists (discrimination against blacks, relegating them to employment in low level positions)
Phillips v Marietta Corporation: apply the sex discrimination provisions of T7 of the Civil Rights Act to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool aged children while hiring men with such children.
Civil Rights Act of 1991
Jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages.
*Compensatory damages are awarded to make an injured person ‘whole’.
Punitive Damages
AKA exemplary damages:
- damages requested and or awarded in a lawsuit when the defendant’s willful acts were malicious, violent, oppressive, faudulent, or grossly reckless.
- punitive damages are not possible against a governmental unit or agency under federal law, but could be available under state law.
Age Discrimination in Employment Act and Amendments (ADEA)
The act prohibits discrimination in every aspect of employment against employees and applicants age 40+.
*Covers all state/local government, private employers with 20 or more employees, unions with 25 or more members, employment agencies, and apprenticeship and training programs
Exceptions to the ADEA
Age Discrimination is permissible if:
- age is a bona fide occupational qualification
- adhering to a genuine seniority plan
- employer is disciplining a person for reasonable cause
- employee is a top executive or policy maker
ADEA Prohibits
- Mandatory retirement based on age (with few limited exceptions)
- Employment discrimination against those 40 and over
Older Worker Benefit Protection Act (OWBPA)
The OWBPA amended the ADEA to prohibit discrimination in 2 areas (21 days, 7 days):
- Employee benefits: benefits offered to older workers must be equal to the benefits offered to younger workers
- Waivers of claims: standards that an EE waiver of the right to sue for age discrimination must meet in order to be upheld by a court
Americans with Disability Act (ADA)
A landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas.
*All private and state/local government with 15 or more employees, employment agencies, labor orgz, joint labor mgmt committees.
ADA Terms
- Qualified: have the requisite skill and be able to perform the essential functions of the job, either with/without reasonable accommodation
- Essential function: the primary job duties that a qualified individual must be able to perform, with/without accommodation
- Disability: an individual is disabled if they have an impairment that substantially limits a major life activity OR has a record of such an impairment, OR is regarded as having such an impairment
Major Life Activities
Not limited to: walking, seeing, hearing, breathing, thinking, communicating, operation of major bodily functions, transferring/mobility, toileting/personal hygiene, bathing and dressing, and caring for oneself.
