Module 2 exam - em law

Legalities in the selection process (Preventing discrimination)

Recruiting process (Job ad, Job announcement, interview questions, selection)

requirements for hiring foreign nationals

H1-B Visas

• granted to persons in specialty occupations; capped at 65,000

• require a bachelors degree or higher

• limits the employee stay to 6 years

• typically, such applicants are systems analysts, engineers, accounts, etc.

protected classes: what are they? what legislation defines them?

which employers are subject to anti discriminatory laws?

Negligent hiring and defamation

Negligent hiring - Employers, like others, have a duty to excercise reasonable care in carrying out certain activities. if they fail, they may be guilty of:

• negligent hiring

• negligent training

• negligent supervision

• negligent retention

Reference checks

Failure to check at least recent hiring references can be evidence of negligence in hiring

• substantive information can be difficult to get because of previous employers concerns about charges of defamation, and other legal issues.

Background checks including fair credit reporting act guidelines

-          Consumer credit report

o   Any communication of information by a consumer reporting agency bearing on consumers credit worthiness, character, or a reputation, which is to be used as a factor in assessing eligibility for employment purposes

• FCRA applies to credit reporting agencies and others who do background checks

• employers must do certain things.

-          Investigative report

o   A report containing similar information, but also based on personal interviews with friends, neighbors, and other associates

Drug free workplace act of 1988

firms that contract with the federal government must comply.

the DFWA requires that employers: develop and communicate policies concerning drug use, sale of possession in the workplace, inform employees about the dangers drug use and options for counseling and treatment, establish penalties for drug use violations.

report any drug convictions, doesnt require drug testing, doesnt dictate sanctions, doesnt necessitate rehabilitation

Drug testing methods and guidelines

-          Drug testing in employment is used:

o   Prior to hiring

o   As part of periodic medical exams

o   To verify that employees who have been through drug rehad programs are clean

o   Upon observation of aberrant behavior that create reasonable suspicion of drug use

o   And randomly

-          There is no one rule that applies to whether an employer may use drug testing and under what circumstances

-          Drug testing laws vary from state to state

o   10 states ban it or limit it to certain safety related industries

o   Random drug testing of union members is a topic of mandatory bargaining, and depends on the collective bargaining agreement (CBA)

-          Random drug testing by public employers is prohibited by the 4^th amendment to the u.s. constitution and some state constitution

-          But public employers may drug test for safety sensitive jobs or upon reasonable suspicion

-          Drug and alcohol testing of employees in transportation related jobs in required

Drug testing procedures

-          The most common procedures required by state statutes are that employees must:

o   Be given written notice that drug testing is required

o   Be given copies of the employers substance abuse and drug testing policy

o   Be given test results in writing

o   Be given an opportunity to explain the result if the test is positive

-          Employers must:

o   Use licensed laboratories to analyze samples

o   Perform confirmatory tests, if requested, or allow employees samples for their own tests

o   Collect samples with due regard for employees privacy

§  Samples can be blood, hair, saliva, urine

o   Keep results of drug tests confidential

Medical exams with regard to the americans with disabilities act (ADA)

under the ADA, prior to making a conditional offer of employment, an employer is prohibited from requiring applicants submit to medical exams. medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are not job related.

HIV Testing

An HIV test may not be conducted until after a conditional offer of employment has been made.

because a person who is HIV positive is protected under the ADA, a positive test cannot be used to deny employment, unless the person cannot perform the essential functions of the job, even with accommodation, or is a direct threat.

using tests in selection (including validity)

Employee polygraph protection act

Forbids private employers from requiring a pre-employment polygraphs or other truth telling devices including voice stress analyzers. Exception exists for private employers in certain industries.

Bona Fide occupational Qualification (BFOQ)

for a Bona Fide Occupational Qualification an employer must show that only persons with the specified protocol class characteristics can do the job, and that the job as currently configured, is integral to the operation of the business.

Examples: Authenticity, Public safety, privacy

subjective criteria

-          Subjective criteria are those for which the standards and means of assessment are not clearly specified and are likely to vary across decision makers

-          Often people are unaware that discrimination plays a role in decisions

o   Example: the chances of women being selected to play in orchestras rose when the auditions were blind so that the judges couldn’t see the applicants.

-          Can you measure (quantify ) fit? Can you measure experience?

offers of employment

-          Because of the common law doctrine of employment at will, a promise of a job which is then revoked will not result in a valid claim for breach of contract

-          Only if the employee has relied on his detriment on the promise( relocating, buying or renting a residence) are the courts likely to recognize a claim for the equitable remedy of promissory estoppel

interviews

Promotions ( Glass ceiling, seniority)

Seniority is the length of services of an employee at a firm, is a common criterion used in may employment decisions, but women and persons of color frequently have less seniority

Glass Ceilings are those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing in their organizations into upper management positions.