module 5 exam emplyment

Performance Appraisals: Uses ( in legal proceedings)

-          Although performance appraisals are not legally required of employers, they hold great legal significance

-          They can be key pieces of evidence in discrimination cases

-          If employers choose to do so, they cannot appraise only men and not women, as such action would be discriminatory

-          Negative performance appraisals do not constitute discrimination

-          However if a biased negative appraisal becomes the basis for the denial of an employment opportunity, then disparate treatment discrimination can be alleged

-          Performance appraisals affect many employment decisions, including

o   Promotion,

o   Training and development,

o   Raises,

o   And more

-          Courts will not review performance appraisals to determine whether the appraisal was correct

o   Only to determine if there is discriminatory intent or other illegal motives

-          Recommended: employers should conduct performance appraisals regularly and maintain credible, written documentation of performance ( including examples)

Performance Appraisals: how to properly prepare and conduct them

Employers should provide training or written instruction to those who conduct performance appraisals.

-          Forced distribution methods require that predetermined percentages of employees be placed into particular performance categories

o   Not surprisingly, these systems have become the object of legal challenges

-          The 360 degree method involved ratings from other employees, at various organizational levels, as well as customers or other stakeholders that deal with the employee being appraised

o   Can be very useful but are time consuming, expensive and not always appropriate

Performance Appraisals: What type of language should be used in them

appraisers should not shy away from criticism, but their tone should be measured and professional.

extreme language suggests hostility, and may become the basis for a cuase of action for discrimination or defamation.

performance appraisals; forced distribution method

require that predetermined precentages or employees be placed into particular performance categories.

Performance Appraisals: common type of performance criteria

work quality and quantity, attendance and punctuality, judgement, ability to work with others in a team, leadership

performance appraisals: communicating performance criteria and standards to employees

employers should communicate performance appraisals to employees, provide an opportunity for discussion, and allow employees to respond to and appeal them.

employers should not attempt to avoid unpleasant confrontations by failing to provide employees with feedback about their perforamnce and opportunities to improve performance that are routinely provided to other employees

performance appraisals: 360 degree appraisals

-          The 360 degree method involved ratings from other employees, at various organizational levels, as well as customers or other stakeholders that deal with the employee being appraised

o   Can be very useful but are time consuming, expensive and not always appropriate

OSHA’s hazard communication standard requirements

This standard is based on the principle of a right to know- the idea that employees have a right to receive information about the dangerous chemicals that they encounter on the job so that they can take steps to protect themselves. things that pose health hazards, or physical hazards.

OSHA’s hazard communication standard requirements: Material safety data sheet

a detailed doxument that explains the hazards of a chemical. employees have the right to know about the chemicals they work with.

Privacy issues: Reasonable expectation of privacy

-          Both public and private employees may seek to assert an expectation of privacy, though constitutional protections apply to public, but not private, employees

-          Whether there is a reasonable expectation of privacy is a case by case determination based on policies, practices, and other circumstances

a key concept in workplace privacy law. although tied most directly to privacy claims based on the constitution, this concept is also relevant to invasion of privacy claims brought on other grounds

Privacy Issues: hidden video surveillance

informing employees that they are subject to surveillance is clearly not necessary in all cases, employers are on surer legal ground if they inform employees that they are subject to monitoring and surveillance.

privacy Issues: employer searches in the workplace

-          Generally, employers may conduct workplace searches, subject to the fourth amendment for public employees and privacy torts particularly intrusion upon seclusion

o   Obtaining consent is best

-          Employers should

o   Establish policies

o   Notify employees regarding the circumstances under which searches will occur, and

o   Conduct searches only as stated

-          Searches should be conducted in a reasonable manner

o   Not overly broad

o   Not resulting in destruction of employee property

o   Not discriminatory

Evidence obtained through searches particularly if it related to potential criminal activity ( e.g. weapons, drugs) must be handled carefully and kept in a secure

Privacy issues: privacy protections/ common law

-          Whether there is a reasonable expectation of privacy is a case by  case determination based on policies, practices, and other circumstances.

-          Most states recognize the following privacy torts:

o   Intrusion upon seclusion

o   Public disclosure of private facts

o   Placements in a false light

o   Appropriation of a name or likeness

Intrusion upon seclusion

A type of privacy tort. it occurs when the solitude or private affairs of an individual are intentionally intruded upon and the nature of the intrusion is such that it would be highly offensive to a reasonable person. intentional intrusion, the object was truly private, highly offensive.

Public Disclosure of Private facts

a type of privacy tort. it occurs when private facts about a person that are of no legitimate concern to the public are broadly disclosed to others in a manner that would be highly offensive to a reasonable person. has to be private info, highly offensive, intentional, not of legitimate concern.

placement in a false light

a type of privacy tort. occurs when characteristics, conduct, or beliefs are falsely attributed to an individual; this false information is broadly publicized; the person publicizing the information knew or should have know that it was false; and being placed in this false light would be highly offensive to a reasonable person.

appropriation of a name or likeness

A type of privacy tort. it occurs when an individual’s name or likeness is used by others without consent and for their own commercial or other ends.

What does it take to establish infliction of emotional distress

a variety of common law tort claim that is often raised in conjuction with privacy claims. plaintiffs must show: intent to harm, behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in civilized society; and severe emotional harm or distress.

Emotional distress claims: Required elements of proof

intent to harm, outrageous behavior, severe emotional harm

Employee Polygraph protection act: Employee rights

employees must not be asked questions desgned to degrade or needlessly intrude on thier privacy

employees must not be asked questions concerning religious beliefs, opinions about racial matters, political beliefs, sexual behavior, and beliefs or activities regarding labor organizations

employees have the RIGHT to review all questions beforehand

employees must be informed whether any observational (two way mirrors) or recording devices are being used.

Employees have the RIGHT to terminate a polygraph exam at any time.

Employees must not be tested who have written documentation from a physician that their physical or mental condition might cause abnormal responses

employees have the RIGHT to a written copy of any opinion or conclusion based on the test.

The electronic Communications privacy act: What does it prohibit?

The act that has been used ot challenge employer incursions on the privacy of electronic communications. Employers and others are prohibited from intentionally intercepting ( through the use of electronic, mechanical, or other devices) wire, oral, or electronic communications and from disclosing such information. The intentional, unauthorized accessing and disclosure of stored electronic communciations are also prohbited.

The Americans with Disabilities act: mandates with regard to medical information obtained from current employees

after employment begins, medical information can be gathered only to the extent that it is job related and consistent with business necessity.

OSH Act: How long must records of an employees exposure to toxins be retained?

exposure records must be maintained for thirty years and medical records for the duration of employment plus thirty years.

HIPAA: Who does it primarily apply to?

primarily affect health care providers and self insured companies. However, any employer that recieves protected health information from insurers or health care providers has obligations under the law. must limit the use of that information. other applies to group health plans information.