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SHRM 2008
Session 1
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PURPOSE
The purpose of this module is to introduce students to common legal issues faced by HR professionals.
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EMPLOYMENT DISCRIMINATION
U.S. employees have legal protections against employment discrimination at the state and federal levels. These protections come from laws (statutes) and from court cases. Protections at the state level vary from state to state. Even some municipalities have laws (ordinances) that protect employees from discrimination.
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EEOC
In the U.S., the Equal Employment Opportunity Commission (EEOC) is the main enforcer of employee civil rights. Each year, the EEOC receives thousands of complaints from employees alleging employment discrimination.
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EEOC
Once the EEOC receives a complaint, one of three outcomes may occur: The complaint can be dismissed as unfounded. If the complaint passes the initial review, the EEOC can either: Have its own attorneys handle the case; or Issue the complainant a Right-to-Sue letter.
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PROTECTED CLASSES
Protected class: To receive employment discrimination protection under federal legislation, an employee must be a member of a class of individuals intended to receive protection. Generally, protected classes are age, race, gender, religion, color, national origin, disability and ethnicity.
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FEDERAL LAWS
Civil Rights Act of 1886 (Section 1981)
Prohibits discrimination on the basis of race, color, national origin, ethnicity.
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FEDERAL LAWS
Pregnancy Discrimination Act of 1975
Prohibits discrimination based on pregnancy and childbirth.
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FEDERAL LAWS
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Under Title VII, there are two main theories of employment discrimination:
Disparate treatment: Under this theory, it is alleged that the employer intentionally discriminated against an employee (or group of employees) because of his/her race, color, religion, gender, or national origin. Disparate impact: Under this theory, it is alleged that the employers human resource practices systematically exclude members of a protected class.
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Sexual Harassment
Under Title VII, sexual harassment is a form of sex (gender) discrimination. There are two types of sexual harassment: Quid Pro Quo (Latin for this for that): This type of sexual harassment occurs when a supervisor or other authority conveys to a subordinate (through either words or actions) that he/she must engage in sexual conduct in order to advance or to not receive poor treatment.
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Sexual Harassment
Hostile Work Environment: This type of sexual harassment occurs when an individual is subjected to the unwelcome and offensive behavior of others in the workplace. This may include offensive language, jokes, gestures, glaring, or displaying offensive images. This type of harassment typically comes from co-workers.
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Retaliation
Title VII of the Civil Rights Act makes it unlawful for an employer to retaliate against an employee by taking an adverse employment action against a covered individual for engaging in any protected activity.
Protected activities include such actions as filing a discrimination complaint, threatening to file a discrimination complaint or picketing to protest discrimination.
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Most U.S. employees are employees at will. Under employment at will, an employee can be discharged for any non-discriminatory reason at any time. However, some employees are due process employees. Due process employees are generally unionized and/or civil servants. This category of employee can be disciplined (including discharge) only for cause.
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Affirmative Action
Affirmative action programs are implemented as a means to remedy past discrimination. Some employers have adopted these programs voluntarily and others have been required to adopt them by the EEOC or court order. Some employers might be required to have an affirmative action program because they are federal contractors (Executive Order 11246). However, quota systems are unlawful because they have been found to violate Title VII.
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illness/ailments are not disabilities as defined under the Americans with Disabilities Act.
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Session 2
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Compliance Safety Military Leave Labor Relations Employee Privacy Negligent Hiring Negligent Retention Negligent Referral
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Compliance
Recordkeeping
Employers must keep records on employees for a variety of reasons, including compensation (e.g., payroll records), appraisals (past performance evaluations), and safety training. Employers with more than 100 employees are required to file an annual report (EEO-1) that provides a numerical count of their employees by job category and by ethnicity, race and gender.
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Safety
and Health Act. The purpose of this law is to help both employers and employees reduce on-the-job death and injury. The law is administered by the Occupational Safety and Health Administration (OSHA), a division of the U.S. Department of Labor.
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Safety
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Workplace Violence
Employers have a responsibility to make the workplace as safe as possible. Part of this responsibility includes taking steps to prevent workplace violence. The employer who fails to do so is subject to possible liability.
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Workplace Violence
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Military Leave
Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 U.S.C. 4301) provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. This law also prohibits employer discrimination based on current or past military service or based on ones intent to join the military.
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Military Leave
Family and Medical Leave Act of 1993: In January 2008, the Family and Medical Leave Act was amended to include a provision that states eligible employee shall be entitled to a total of 12 workweeks of leave during any 12month period . . . because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
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Labor Relations
the management of an organization and its organized labor representative (e.g., unions). Unions exist in the public and private sectors. The National Labor Relations Board was created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector.
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Labor Relations
The overall rate of unionization in the United States has been declining for decades. Organizations have a duty under federal law to deal with unions fairly and to bargain in good faith.
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Labor Relations
The National Labor Relations Act (NLRA) prohibits unfair labor practices, which are defined as activities by employers that interfere with the right to unionize by employees.
Examples of unfair labor practices include telling employees to vote against unionization or threatening to close a facility if the workplace becomes unionized.
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Labor Relations
Employers also have protections against unfair labor practices. For example, the Taft-Hartley Act of 1947 prohibits secondary boycotts and allows states to pass right-to-work statutes. Under the Taft-Hartley Act, closed shops (in which employees must be a member of the union before they are hired) are prohibited. However, states may allow union shops (in which the union requires that an employee become a union member within a certain amount of time usually 30 or 60 days of being hired).
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Employee Privacy
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Employee Privacy
The Fourth Amendment of the U.S. Constitution has a provision on unlawful searches and seizures by the government. This provision has been interpreted by courts to mean that governmental workers have special privacy protections. Employers with federal grants and contracts must have a drug free workplace policy pursuant to the Drug-Free Workplace Act of 1988. However, drug test results and other medical records must be handled appropriately and be consistent both with this act and the Health Insurance Portability and Accountability Act (HIPAA).
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Negligent Hiring
community and themselves to ensure that employees do not harm others in the performance of their work duties. Under the legal doctrine of respondeat superior, an employer might be held civilly liable for the actions of employees.
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Negligent Hiring
Many employers investigate the backgrounds of their employees before hiring them. Such practices include:
Checking references/contacting former employers. Conducting a criminal background check. Requesting transcripts. When appropriate, requesting proof of licensure (e.g., license to practice medicine or law, drivers license). Drug testing.
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Negligent Retention
Related to the issue of negligent hiring is negligent retention. Negligent retention occurs when an employer does not discharge an employee after the employer learns (or should have known) that the employee was a danger to others.
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Negligent Referral
Negligent referral occurs when an employer knows that a current or former employee poses a threat to others, but does not pass this information on to the next employer.
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Employee References
situation for employers. On one hand, employers do not want to be sued for negligent referral by subsequent employers. On the other hand, employers want to avoid former employees bringing a lawsuit based on discrimination, tortious interference with contract (i.e., interfering with an employees ability to obtain another job), or defamation.
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Discussion question: What are some important legal trends affecting HR? Student evaluation: Quiz on the materials from Sessions 1 & 2.
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