Employment Law Unit 2 (Mathguy18)

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit II Upon completion of this unit, students should be able to:

1. Explain the substance of the relationship between the employer, employee, and independent contractor. 1.1 Distinguish between proper and improper selection processes that employers use in hiring

employees. 1.2 Discuss how employee testing can be used by employers in hiring employees and how testing

can be misused by employers. 1.3 Describe the requirements that employers must satisfy in properly terminating employees. 1.4 1.4 Identify the situations where an employer may properly require that employees submit to

polygraph testing.

Reading Assignment Chapter 2: Selection Chapter 3: Testing Chapter 5: Termination

Unit Lesson Employers have a variety of responsibilities that they owe to employees, and those responsibilities exist throughout the employment relationship, starting before the employment relationship even begins. Employers are entitled to select employees that they believe have the best qualifications for a specific position and who they think will do the best job and be the best employees. However, most of this course deals with issues of discrimination in employment, and employers have to be concerned about discrimination, beginning with the process of selecting employees. That means that, though employers are entitled to hire the employees they think are best suited for the job and the employer, employers still must be careful that they do not discriminate improperly in the selection process. We will see when we begin talking about discrimination in earnest that not all discrimination is illegal. There are certain specific “protected classes” that are identified, and discrimination on the basis of the characteristics of those “protected classes” is prohibited by law. For instance, an employer cannot discriminate – in aspect of the employment relationship – against people because of their color, race, national origin, religion, gender, age, or disability. We will also see that discrimination that is not intentional but that results from a rule or procedure or practice that seems, on its face, to be proper, is still prohibited. Discrimination that is intentional is called “disparate treatment,” and discrimination that is not intentional but that results from something that seems to be appropriate is called “disparate impact.” Employers have to be careful in all aspects of the employment relationship to avoid both disparate treatment and disparate impact discrimination, including in the hiring process. Of course, since there are specified classes that cannot be discriminated against, that means that there is some discrimination that is not prohibited. For instance, if I apply for a job and the employer thinks that my disposition is too bad for the job that deals with angry customers each day, that employer can refuse to hire me on that basis, even though the employer’s refusal to hire me is a form of discrimination (discrimination

UNIT II STUDY GUIDE

Employers’ Treatment of Employees

BHR 3565, Employment Law 2

UNIT x STUDY GUIDE

Title

against people who do not have a good disposition). However, employers have to be very careful because there are characteristics that an employer might not like, but are characteristics that are related to a protected class. For instance, you have gray hair, and an employer might not hire you because he or she prefers blond hair. On its face, that might seem like a proper decision for an employer, but gray hair is an indication of age, and, as we will see later in the course, an employer cannot discriminate on the basis of age. Again, employers have to be very careful in deciding whether or not to hire someone. Employers are safest when they concentrate on job qualifications:

 What level of education or experience does the job require?

 What communication skills does the job require?

 How will the employee to be hired have to interact with other employees?

These are the kinds of questions that employers should ask themselves and potential employees when a specific job is being filled. Employers also have to be careful how they advertise a job opening to be sure that the simple act of advertising does not result in disparate impact discrimination. For instance, advertising job openings in a magazine that is specifically targeted at men might result in very few job applications from women, and that could result in disparate impact discrimination against females. Employers also have to be careful that the wording of their advertisements does not result in discrimination. For instance, advertising a job opening for a man or a person of a particular race or a person of a specific age could very well result in discrimination. There are a few situations when employers are allowed to advertise and hire in a manner that would otherwise be discriminatory. If a specific job requires a “bona fide occupational qualification,” the job can specify characteristics of those who will be considered for the job that are attributed to a protected class of people. A bona fide occupational qualification is a job qualification that legitimately requires a person with specific characteristics that would be discriminatory except that the job requires those characteristics. For instance, if I am the director of a new film, and a part in the film calls for a female actor, I can advertise for and terminate a female actor without discriminating illegally. Or, if a college that is associated with a specific religion needs to hire a professor to teach a course about that religion, it is not improper for that college to advertise for and hire a person who professes that religion (Moran, 2014). It is important to note that companies that employ more than 100 people are required to keep records to show that the way they advertise for employees and the way they select employees is not discriminatory. If you have ever applied for a job and been asked to fill out a card indicating items such as your gender and nationality, that is part of this recordkeeping requirement. These records that are required to be kept can be reviewed by the Equal Employment Opportunity Commission, a federal agency that oversees employment processes for discriminatory practices (Moran, 2014). Employers, in an effort to ensure that they are hiring the “right” employees are often interested in testing employees to determine if they have the necessary knowledge, experience, and aptitude for the job. Generally, such tests are proper, if the employer can show that the tests are legitimately related to the job requirements of the job to be filled. That is, testing can be used to discriminate in hiring (disparate treatment), and testing can also inadvertently discriminate (disparate impact). Some specific kinds of tests that can result in discrimination include residency tests or requirements – requiring that employees live in a particular location can make sense, but, if the location specified is predominantly white, for instance, that could constitute disparate impact discrimination because the requirement would necessarily exclude other races from being eligible for the job. Physical skills tests have been a particular problem. It makes sense, for instance, that a fireman should be able to carry heavy equipment up a ladder, but requiring that a person meet certain strength or stamina requirements could have the effect of eliminating females from being eligible for the job of a fireman because females, in many cases, have less strength and stamina than men. The solution to this problem, in most cases, is to tailor the specific physical skills test to the specific requirements of the job (Moran, 2014). Another kind of employee testing that has caused a number of problems is polygraph (lie-detector) testing. Essentially, polygraphs are not accepted as evidence in court and polygraph tests are considered to be an invasion of privacy in many cases. There is a federal law, the Employee Polygraph Protection Act of 1988,

BHR 3565, Employment Law 3

UNIT x STUDY GUIDE

Title

which prohibits employers from requiring or even suggesting that employees take polygraph tests except in a few very specific situations (Moran, 2014). Another form of employee testing that continues to be an issue is drug testing. Like polygraph testing, drug testing is seen as an invasion of the employees’ privacy, so the general rule for employee drug testing is that it is appropriate when either every employee is tested or when drug testing is done on the basis of reasonable suspicion that an employee is using drugs. That is, the employer has to have a reasonable belief that a specific employee is using drugs before that employee can be tested for drug use. This is a particularly difficult subject because it is clear that drug use adversely affects employees’ performance and the success of the employer, but the requirement of reasonable cause to conduct employee drug tests seems to be the middle ground between the competing causes of employee privacy and preventing drug use on the job (Moran, 2014). Finally, in considering how employers treat employees, the subject of employee termination has to be addressed. Clearly, employers, especially in employment-at-will situations, should have the right to terminate an employee who is not doing his or her job or who is not following company policy. In those situations, the general rules that we have been discussing apply – employees can be terminated, but the termination cannot be discriminatory. That is, an employee cannot be terminated based on a characteristic of a protected class. A person cannot be fired by his employer because he is a male or because he or she belongs to a certain religion. The termination has to be based on not doing the job that he or she was hired to do or not following company policy. Of course, that means that the job requirements have to be fully explained to the employee, and except in the most extreme case, the employee has to be told that he or she is not measuring up to the job requirements and given an opportunity to improve. In the case of a termination for not following company policies, those policies must be clearly stated and the employee told that he or she is not following company policy and given an opportunity to show that he or she can comply with company policy (Moran, 2014).

Reference Moran, J. J. (2014). Employment law: New challenges in the business environment (6th ed.). Upper Saddle

River, NJ: Prentice Hall.

Key Terms 1. Bona fide occupational qualification 2. Breach of contract 3. Constructive discharge 4. Negligent hiring 5. Nepotism 6. Polygraph 7. Residency requirement 8. Retaliatory discharge 9. Suspicion-based drug testing

10. Suspicionless search 11. Termination 12. Wrongful discharge