Lesson 3: Legal Issues in Employee Selection

Grievance System

A process in which an employee files a complaint with the organization and a person or committee within the organization makes a decision regarding the complaint.

Mediation 

A method of resolving conflict in which a neutral third party is asked to help the two parties reach an agreement.

Arbitration 

A method of resolving conflicts in which a neutral third party is asked to choose which side is correct.

Binding Arbitration 

A method of resolving conflicts in which a neutral third party is asked to choose which side is correct and in which neither party is allowed to appeal the decision.

Nonbinding arbitration

A method of resolving conflicts in which a neutral third party is asked to choose which side is correct but in which either party may appeal the decision.

Protected Class

Any group of people for whom protective legislation has been passed.

Magna Carta, Safe Spaces Act, Anti Violence Against Women and Their Children

• Protected Class in the Philippines

• Women

Magna Carta of Women

Republic Act (RA) 9710

Safe Spaces Act

RA 11313

Anti-Violence Against Women and Their Children Act

RA 9262

Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Juvenile Justice and Welfare Act

• Protected Class in the Philippines

• Children/Minors

Special Protection of Children Against Abuse, Exploitation and Discrimination Act

RA 7610

RA 9344

Juvenile Justice and Welfare Act

Magna Carta for Disabled Persons, Amendments to Magna Carta for PWDs

Persons with Disabilities (PWDs)

RA 7277

Magna Carta for Disabled Persons

RA 9442

Amendments to Magna Carta for PWDs

RA 9994

Expanded Senior Citizens Act

RA 8371

Indigenous Peoples’ Rights Act (IPRA)

RA 10911

Anti-Age Discrimination in Employment Act

Presidential Decree 442

Labor Code of the Philippines

RA 11313

Safe Spaces Act (covers sexual orientation & gender identity expression in harassment cases) (Note: A nationwide SOGIE Equality Bill is still pending)

RA 11166

Philippine HIV and AIDS Policy Act

1987 Philippine Constitution – Bill of Rights

• All Citizens (General Protection)

• equal protection under the law, Art. III, Sec. 1)

Illegal

• Sex

• The courts have ruled that intentional discrimination against either women or men is (Diaz v. Pan American Airways, 1991).

• Included in the definition of sex are sexual stereotypes.

• That is, it would be ____ to not hire a female applicant because she looks or dresses too masculine

English-only 

• National Origin

• One of the most common complaints is about ______ speaking requirements.

• A good example was a case that resulted in a nearly $1 million settlement between the EEOC and the Delano Regional Medical Center in 2012. The hospital forbade Filipino employees from speaking Tagalog, yet allowed other employees to speak in languages such as Spanish.

Illegal

It is ____ to use an individual’s religion as a factor in an employment decision unless the nature of the job is religious.

Legal

If, however, the religious apparel creates the potential of danger to the employee or others (e.g., a bracelet getting caught in a piece of machinery or a head covering preventing the wearing of a safety helmet), the courts have been clear that banning such apparel is ____

Illegal 

• Though mandatory retirement ages are allowed in certain circumstances (e.g., 70 years for college professors), they are usually

• Usually, an employer cannot force someone to retire just because of age, but specific jobs (like professors, judges, or pilots) may have legally set retirement ages for reasons such as safety, health, or job performance standards.

Professors, Judges, Pilots

Usually, an employer cannot force someone to retire just because of age, but specific jobs (like ____, ____, ____) may have legally set retirement ages for reasons such as safety, health, or job performance standards.

Disability

• physical or mental impairment that substantially limits one or more of the major life activities of an individual

• A record of such impairment

• or Being regarded as having such an impairment.

Pregnancy

It requires ____ to be treated as any other short-term disability.

Adverse impact

An employment practice that results in members of a protected class being negatively affected at a higher rate than members of the majority class.

Four-fifths rule.

• Adverse impact is usually determined by the

• When the selection ratio for one group (e.g. females) is less than 80% (____) of the selection ratio for another group (e.g. males), adverse impact is said to exist.

Quid Pro Quo 

a type of sexual harassment in which the granting of sexual favors is tied to an employment decision.

Hostile Environment

a type of harassment characterized by a pattern of unwanted conduct related to gender that interferes with an individual’s work performance.

Organizations

are also responsible for harassment committed by vendors, customers, and other third parties.

Affirmative Action

The process of ensuring proportional representation of employees based on variables such as race and gender.

Involuntary: Government Regulation

These mandatory affirmative action plans typically involve analyses of all major job groups (e.g., managers, professionals) and indicate which job groups have under-representations

Involuntary: Court Order

When a court finds a public agency guilty of not hiring or promoting members of a protected class, it can order the agency to begin an affirmative action program.

Voluntary: Consent Degree

If a discrimination complaint has been filed with a court, a public agency can “voluntarily” agree to an affirmative action plan rather than have a plan forced on it by the court.

Voluntary: Desire to be a Good Citizen

Voluntarily ensure that their employment practices are fair to all groups of people.

Affirmative Action Strategies

• Monitoring, hiring and promotion statistics.

• Intentional recruitment of minority applicants.

• Identification and removal of employment practices working against minority applicants and employees.

• Preferential hiring and promotion of minorities.

History, beneficiaries, population, impact on the nonminority, end point

5 criteria in assessing an action plan

History of the organization

If there is no strong basis in evidence to indicate that discrimination has recently occurred, then preferential hiring is neither necessary nor legal.

Beneficiaries of the plan

The second criterion concerns the extent to which the plan benefits people who were not actual victims of discrimination.

Population to be considered

The population that must be used in goal setting is that of the qualified workforce in the area rather than the area population as a whole

Impact on the nonminority group

Preference can be given to a qualified minority over a qualified nonminority, but an unqualified minority can never be hired over a qualified nonminority.

End point of the plan

Affirmative action plan cannot continue indefinitely; it must end when certain goals have been obtained

Drug Testing

It is more complicated and must be based on “reasonable suspicion” and with “just cause.”

Psychological Tests

These tests often include questions about such topics as religion and sexual preference that some applicants feel uncomfortable answering.

Office and locker searches

are allowed under the law if they are reasonable and with Just Cause.

Electronic surveillance 

is not an invasion of privacy because employees do not have an expectation of privacy while working in open areas.

Employment practices

• pertain to patterns or processes that must be performed and established in hiring and working conditions.

• Employers have obligations they need to fulfill and laws to comply with. Hence, they must observe best practices in a working environment and ensure that employees are given their due rights.

Background checks

There is no law prohibiting _____ on applicants, whether conducted by the employer or a third party. There are, however, specific laws that apply concerning applications and ____ for the protection of personal information of applicants.

Anti-Age Discrimination in Employment Act (RA 10911)

• Specifically prohibits requiring the declaration of age or birth date during the application process.

• Promote employment of individuals on the basis of their abilities, knowledge, skills and qualifications rather than their age.

Data Privacy Act (RA 10173)

• Provides that the applicant or the data subject has a right to be informed if personal data is being collected for purposes of profiling, or other forms of data processing.

• Under this laws, profiling includes the automated processing of personal data (defined as information from which the identity of an individual is apparent or can be ascertained) consisting of the use of such personal data to evaluate certain personal aspects relating to a natural person.

Medical examination

______ should not be used to delay employment when the denial of employment would constitute discrimination under the laws applicable

Philippine HIV and AIDS Policy Act (RA 11166)

prohibits the rejection of a job application solely or partially based on actual, perceived, or suspected HIV status

Magna Carta for Persons with Disability (RA 7277 and RA 9442)

• To promote the rehabilitation, self-development, and integration of persons with disabilities (PWDs) into society and ensure they enjoy the same rights and opportunities as others.

• Employers with more than 100 employees must reserve at least 1% of positions for PWDs.

• 20% discount and VAT exemption on medicines, medical services, transport fares, restaurants, recreation, etc.

DOLE Department Order No. 053-03

• There are no restrictions against drug and alcohol testing, and there is no law prohibiting an employer from refusing to hire an applicant who refuses to submit to a test.

• Assist both the employers and employees in the formulation of company policies and programs to achieve a drug-free workplace

• Only DOH-accredited drug testing centers

RA 10911 Anti-Age Discrimination in Employment Act

• An Act Prohibiting Discrimination Against Any Individual in Employment on Account of Age and Providing Penalties Therefor

• The State shall promote equal opportunities in employment for everyone. To this end, it shall be the policy of the State to:

  • (a) Promote employment of individuals on the basis of their abilities, knowledge, skills, and qualifications rather than their age.

  • (b) Prohibit arbitrary age limitations in employment.

  • (c) Promote the right of all employees and workers, regardless of age, to be treated equally in terms of compensation, benefits, promotion, training, and other employment opportunities.

Probationary Period 

The Labor Code provides that probationary employment shall not exceed six months from the date the employee started working unless it is covered by an apprenticeship agreement stipulating a longer period

Six months

The Labor Code provides that probationary employment shall not exceed ____ from the date the employee started working unless it is covered by an apprenticeship agreement stipulating a longer period

Employee

• An individual who works for an employer in return for wages or other remuneration

• Always entitled to statutory benefits

• Follows the employer

• Fixed work schedule

• Entitled to benefits

• Indefinite engagement

• Exclusive services

Contractor

• refers to any person or organization engaged in a permissible contracting or subcontracting arrangement

• individual who provides services to a business or organization but is not an employee of that business.

• Freelancers, Consultants, Self-employed individuals

• Independent

• Flexible work schedule

• No entitlement to benefits

• Time-bound engagement

• Non-exclusive services