9th ed Chap004 Final in PPT 2016 09152918 TFC 2 narrated PPT in PPT201

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Chapter 4 Legal Construction of the Employment Environment (9th ed.):

Chapter 4 Legal Construction of the Employment Environment (9 th ed.) McGraw-Hill/Irwin Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Learning Objectives (1):

Learning Objectives (1) Explain why employers should be concerned about ensuring protections for equal opportunity during recruitment, in particular (role of risk ) Describe how the recruitment environment is regulated, by both statutes and common law Describe the employer’s opportunities during the information-gathering process to learn as much as possible about hiring the most effective workers

Learning Objectives (2):

Learning Objectives (2) Explain how the employer might be liable under the theory of negligent hiring (or retention) Identify the circumstances of employee’s compelled self-publication, and defamation risk Explain the difference between testing for eligibility and testing for ineligibility, and provide examples of each Identify key benefits of performance appraisals, and potential pitfalls to avoid

Life Cycle of the Employment Relationship:

Life Cycle of the Employment Relationship Recruitment of appropriate candidates Hiring Testing Performance appraisals Termination … but first, a digression about RISK

Thinking about ‘Risk’:

Thinking about ‘Risk’ Definition: ‘exposure to the chance of injury or loss; a hazard or dangerous chance.’ (dictionary.com) Everything we do or decide involves some element of risk. Precautions are routinely taken to reduce risk Risk is precious – the more left to chance, the more the probabilities add-up HR’s job is to take actions and create policies and systems that promote your company’s well-being, and reduce/drive down risk. Few of these CH4 matters are fatally illegal, but precautions will reduce HR risk.

Recruitment (1):

Recruitment (1) First step in the life cycle of the employment relationship Federal statutes potentially affecting recruitment Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act of 1967 Immigration Reform and Control Act of 1986 Vocational Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990

Recruitment (2):

Recruitment (2) State employment law regulations vary by statute and common law CA: broad anti-discrimination coverage CA: recent statutory limitations, e.g., passwords, salary Common law recruitment violations Fraud Misrepresentation ‘Material’ facts

Application of Regulation to Recruitment Practices:

Application of Regulation to Recruitment Practices Advertisements Scenario 1 Word-of-mouth recruiting Promoting from within Venue recruiting Walk-in applicants Neutral solicitation Case: EEOC v. Consolidated Service System

Information Gathering and Selection (1):

Information Gathering and Selection (1) Application ‘document’: manage info for need Ban-the-box legislation in CA: Fair Chance Act (5+ Ees ) https://www.dfeh.ca.gov/resources/frequently-asked-questions/criminalhistoryinfoinemploymentfaqs/ Conditional job offer, individualized assessment, written notice Recent report: Repairing the Road to Redemption (optional!) https://safeandjust.org/repairing-the-road-to-redemption-in-california/ Interviews Team make-up – old white alums in frat jackets? Pre-training, scripting (see EEOC Qs, below) Uniform selection criteria ADA matters: https://www.eeoc.gov/facts/jobapplicant.html

Information Gathering and Selection (2):

Information Gathering and Selection (2) Salary History in CA (per January 2018) https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-salary-history-ban-questions.aspx Employer cannot ask for it … including benefits Employer can’t use agent to get it ( HHr ) Employer can try to verify history after job offer (no SF) Applicant can volunteer it, if done freely Upon reasonable request (oral or written), Employer must provide “pay scale” for position Good policy to ‘document’ provision Application ‘document’: manage info for need Ban-the-box legislation in CA: Fair Chance Act (5+ Ees ) https://www.dfeh.ca.gov/resources/frequently-asked-questions/criminalhistoryinfoinemploymentfaqs/ Conditional job offer, individualized assessment, written notice Recent report: Repairing the Road to Redemption (optional!) https://safeandjust.org/repairing-the-road-to-redemption-in-california/ Interviews Team make-up – old white alums in frat jackets? Pre-training, scripting (see EEOC Qs, below) Uniform selection criteria ADA matters: https://www.eeoc.gov/facts/jobapplicant.html

Information Gathering and Selection (3):

Information Gathering and Selection (3) Background or reference checks Resume fraud rampant Background checks: manage information of-interest Feds, CA coverage: next slides References: manage rules for giving and getting https://www.jacksonlewis.com/resources-publication/california-employer-protections-regarding-job-references - a good article if you persist in providing refs – see “Tips” Liability risk for incomplete coverage, defamation Limited ‘Common Interest Privilege’ in CA Safe harbor: title, dates of employment, eligibility for re-hire Train employees re ‘personal’ references from home Common law Negligent hiring risk (three slides hence)

Background Checks Regulation (1):

Background Checks Regulation (1) Federal: Fair Credit Reporting Act (baseline) 3P-prepared “consumer reports” (incl. hiring) 7-yr limit on most info (exc. bkrptcy = 10, convictns no limit) Pre-notification to applicant Consent in writing, and Advance notification + copy to app. if info will be used to make ‘adverse’ decision (incl. dispute info, ID of reporter) See FTC Guide: Using Consumer Reports – What Employers Need to Know https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know Secure disposal required (document)

Background Checks Regulation (2):

Background Checks Regulation (2) California (is different): FCRA plus ICRAA, CCRAA ICRAA: “investigative consumer reports” (incl. hiring), prepared by Anyone (credit reports separate law) Notice incl. purpose, ID of screener co., nature/scope (buzz phrase avbl ), summary of right to review, checkbox for copy Exception if report is for wrongdoing investigation If emper does check, only pub records need be provided CCRAA: Menu of allowable jobs (incl. “managerial,” or with access cash or proprietary information) Same time limits as Feds Consent in writing, including basis for seeking report

Prima facie case elements for Negligent Hiring/Retaining Claim:

Prima facie case elements for Negligent Hiring/Retaining Claim

Exhibit 4.8 - Where Do Employers Get Their Info? NB: no applicant passwords in CA:

Exhibit 4.8 - Where Do Employers Get Their Info? NB: no applicant passwords in CA

Exhibit 4.9 – Content on Candidates’ Web Sites Leading Employers Not to Hire:

Exhibit 4.9 – Content on Candidates’ Web Sites Leading Employers Not to Hire

Exhibit 4.13 – Balancing the Interests in the Testing Debate:

Exhibit 4.13 – Balancing the Interests in the Testing Debate

Testing in the Employment Environment:

Testing in the Employment Environment Pre-employment testing Tests to find the best individual for a position (eligibility) Tests to ensure that the individual is free from problems that would prevent her or him from performing the position’s functions (ineligibility) Individual privacy Testing is illegal when the invasion of privacy is “substantially and highly offensive to the reasonable person”

Legality of Eligibility Testing:

Legality of Eligibility Testing Eligibility testing : Tests conducted to ensure capability and qualification of potential employee To be legally validated, an employer must show that the eligibility test is: Job-related Consistent with business necessity Job analysis data : Information about nature of work and skills required to perform the work

Legality of Eligibility Testing:

Legality of Eligibility Testing Validation : Evidence that shows that a test evaluates precisely what it claims to evaluate Test validity Criterion-related validation Content validation Construct validation

Legality of Eligibility Testing:

Legality of Eligibility Testing Integrity and Personality Tests Used by 40% of Fortune 100 companies Conscientiousness  job performance basic intelligence testing is one of the best predictors of job performance across all jobs Physical Ability Tests Medical Tests

Legality of Ineligibility Testing:

Legality of Ineligibility Testing Why is testing done? Reduce workplace injury or to provide a safer working environment Predict employee performance or deter poor performance Reduce the employer’s financial responsibility to the worker’s compensation system

Polygraphs (1):

Polygraphs (1) Polygraph : A so-called lie-detecting device that measures biological reactions in individuals when questioned A polygraph measures Rate and depth of respiration Cardiovascular activity Perspiration Accuracy rates range from 50 (e.g., random) to 90 percent

Polygraphs (2):

Polygraphs (2) Federal Employee Polygraph Protection Act (EPPA) Generally not allowed in employment context, with (odd) exceptions Certain specific workplace investigations Sensitive Occupations 33 states have statutes prohibiting or restricting the use of polygraphs in making employment decisions

Drug and Alcohol Tests:

Drug and Alcohol Tests Drug-Free Workplace Act of 1988 Only applies to federal employees Some private sector firms use Act’s guidelines Coverage varies with technology used Immunoassay test Radio-immunoassay of hair Drug-Free Workplace Act of 1998 Case : Nat’l. Treasury Employees Union v. Von Raab

Substance Abuse Tests: CA (and SF):

Substance Abuse Tests: CA (and SF) CA balances business interests of employer with privacy interests of applicant/employee CA: Post-offer, pre-employment: non- discrim . suspicionless tests legal, refusal to hire for medical MJ okay CA: post-hire: reas’able suspicion, poss. post-accident, random in safety-sensitive industries; Fed exceptions apply SF: pre-employment okay; post- only if (all): reas . suspicion + safety danger + sample to emp’ee and opportunity to rebut/explain pos. result.

Genetic Tests:

Genetic Tests Genetic Information Non-Discrimination Act and state statutory coverages -> restricted use Issues Employers might discriminate based on the potential for a debilitating disease Employees may not want to know results Genetic testing is not perfect Genetic irregularities may be considered protected disabilities under the Americans with Disabilities and Vocational Rehabilitation Act

Unique Considerations of HIV/AIDS Testing:

Unique Considerations of HIV/AIDS Testing Why is it inappropriate? For justification, test must serve legitimate business purpose Test reports only the subject’s status as of several weeks or months in the past HIV-positive employee may be protected under Federal Vocational Rehabilitation Act Americans with Disabilities Act (see Chapter 13 coverage)

Management Considerations: Testing:

Management Considerations: Testing A workplace substance abuse program should incorporate A written policy A supervisory training program An employee education and awareness program Access to an employee assistance program A drug testing program, where appropriate Mandatory, “probable cause,” and/or random testing

Performance Appraisals, Evaluation, and Discipline Systems (1):

Performance Appraisals, Evaluation, and Discipline Systems (1) Performance appraisal : A periodic assessment of an employee’s performance The purpose of performance appraisals identify performance characteristics employer hopes employee will accentuate Discourage performance characteristics not in keeping with the organization’s objectives The potential for discriminatory effect – ‘subjectivity’ problem/standards solution

Performance Appraisals, Evaluation, and Discipline Systems (2):

Performance Appraisals, Evaluation, and Discipline Systems (2) Realities about performance evaluations Monitor for discrimination risk No need to lower its standards or qualifications to accommodate employee’s or applicant’s needs Objective measures of performance preferred, tighten subjective criteria Inadequate system can risk defamation, negligence Legal challenges found mostly in the areas of implementation, monitoring and accountability

Discipline:

Discipline “Just cause” disciplinary approach How is “just cause” determined? Due process Adequate evidence Appropriateness of penalty Documentation (!) (in general and here specifically) Progressive discipline

Management Tips:

Management Tips Maintain proper documentation of performance appraisals Train supervisors on non-biased reporting and evaluations Take precautions against inappropriate disclosures Evaluate performance frequently, systematically, and as stated in the employee manual or other materials

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