Chapter 2 Summary

Laws are needed to define how the employer may utilize each type of worker, as well as the rights of
each type. laws have been developed to create fairness and nondiscrimination in staffing.

KSAOs refers to job-related:

 Knowledge

 Skill

 Ability

 Other characteristics

“staffing” refers to formation of the employment relationship from a legal perspective.

Employment relationship a relationship involves several types of arrangements, which have special and
reasonably separate legal meanings, between the organization and those who provide work for it. Such as:

 employer–employee

 independent contractor

 temporary employee

 unpaid interns and trainees

Employer–Employee

 it is the most prevalent form of the employment relationship.

 result from the organization’s usual staffing activities— a culmination of the person/job matching
process.
 the employer and the employee negotiate and agree on the terms and conditions that will define
and govern their relationship.
 The formal agreement represents an employment contract.
 the initial contract may be modified due to changes in requirements or rewards of the current job,
or employee transfer or promotion.
 Either party may terminate the contract, thus ending the employment relationship.

Employment contract, the terms and conditions of which represent the promises and expectations of the
parties (job requirements and rewards, and KSAOs and motivation).

 come in a variety of forms.

 They may be written or oral (both types are legally enforceable)
 and their specificity varies from extensive to bare bones.
An employer is an entity that employs others to work on its behalf.

When and how the employment relationship ends are very important:

 For the employer, staffing flexibility makes it possible to quickly terminate employees without
constraint.
 For the employee, the degree of continued employment and job security that will be expected is
an important aspect of the employment relationship.

Those who get employed are classified as:

 Employees, the employer has a right to control what will be done and how it will be done.

 Independent contractors, the right to control is much weaker.

With employees the employer must:

 withhold payroll taxes (income, Social Security)

 pay required taxes (unemployment and workers’ compensation, Social Security, and Medicare)
 adhere to minimum wage and overtime pay requirements
 conform to equal employment opportunity laws and regulations
 assume liability for harmful acts of its employees while working.

With independent contractors the employer does not have the above requirements.

There are two similar legal approaches to guide the employer’s classification judgment:

 The first approach, used by the Internal Revenue Service, emphasizes the degree of employer
control and worker independence, 11 criteria falling into three categories (behavioral, financial,
and type of relationship).

a person is more likely to be an independent contractor in the following situations:

• Working in a distinct occupation or business

• Working without supervision or oversight from the employer
• Paying one’s own business and travel expenses
• Setting one’s own work hours
• Possessing a high degree of skill
• Using one’s own tools, materials, and office
• Working on a project with a definite completion date
• Working on relatively short projects
• Being paid by the project or commission rather than by the time spent
  The Second approach, used by the DOL, is based on the economic realities test. It determines
whether a person is economically dependent on the business (i.e., an employee) or is in business
for himself or herself (i.e., an independent contractor).

a person is more likely to be an independent contractor when:

 The work performed is not integral to the employer’s business

 The person has and uses managerial skills that affect the opportunity for profit or loss

 The person makes investments that support a business

 The person has special skills and initiative to operate an independent business

 There is not a permanent relationship with the employer

 The person controls meaningful aspects of the work performed

Independent Contractors:
 Are not considered employees, in a legal sense, of employer
 Misclassifying people as independent contractors can result in penalty for employer
 Frees the employer of the tax withholding, tax payment, and benefits obligations
 Loses the right to control the contractor
 Cannot dictate where, when or how work is to be done
Temp Employees:
 Do not have special legal stature
 Jointly liable under some laws

Unpaid, a person must meet six requirements in order to be classified as an unpaid intern or trainee;
otherwise the person is an employee, they are:

 the training must be similar to that given in school

 the training experience is to benefit the intern

 the trainee does not displace another person and works under close supervision of the employer’s
staff

 the employer does not gain an immediate advantage from the trainee’s activities, and on occasion
operations may be hampered

 the trainee is not entitled to a job at the end of training

 the employer and the trainee must understand that the

Need for Laws and Regulations

 Balance of Power
 Protection of Employees
 Protection of Employers

Sources of Laws and Regulations

1. Common law, which has its origins in England, is court-made law, as opposed to law from other
sources, such as the state.

 Consists of the case-by-case decisions of the court, as well as their remedies.

 Each state develops and administers its own common law.

 Example: Employment-at-will and workplace tort cases.

Employment-at-will involves the rights of the employer and the employee to terminate the employment
relationship at will.

A tort is a civil wrong that occurs when the employer violates a duty owed to its employees or customers
that leads to harm or damages suffered by them.

2. Constitutional law is derived from the US Constitution and its amendments.

 It supersedes any other source of law or regulation.

 Its major application is in the area of public employee rights, particularly their due
process rights.

 Examples: Fifth Amendment and Fourteenth Amendment

3. Statutory law is derived from written statutes passed by legislative bodies. These bodies are:

 federal (Congress)

 state (legislatures and assemblies)

 local (municipal boards and councils).

4. Agencies exist at the federal, state, and local levels.

  Their basic charge is to interpret, administer, and enforce the law.

 rely heavily on written documents, are variously referred to as rules, regulations,

guidelines, and policy statements, in performing their functions.

 Rules, regulations, and guidelines are published in the Federal Register

 Policy statements are somewhat more benign in that they do not have the force of law.

 They do, however, represent the agency’s official position on a point or question.

The major federal EEO/AA laws are the following:

 Title VII of the Civil Rights Acts (1964, 1978, 1991)

 Age Discrimination in Employment Act (1967)

 Americans With Disabilities Act (1990, 2008)

 Genetic Information Nondiscrimination Act (2008)

 Rehabilitation Act (1973)

 Executive Order 11246 (1965, 1967, 2014)

Disparate Treatment. Claims of disparate treatment involve allegations of intentional discrimination in

which the employer knowingly and deliberately discriminated against people on the basis of specific
characteristics such as race or sex. Evidence for such claims may be of several sorts.

 the evidence may be direct.

 the situation may not involve such blatant action but may consist of what is referred to as a mixed
motive.

 the discrimination may be such that evidence of a failure to hire or pro- mote because of a
protected characteristic must be inferred from several situational factors. Such:

1. The person belongs to a protected class.

2. The person applied for, and was qualified for, a job the employer was trying to fill.
3. The person was rejected despite being qualified.
4. The position remained open and the employer continued to seek applicants as qualified as the
person rejected.

Disparate impact, also known as adverse impact, focuses on the effect of employment practices, rather
than on the motive or intent underlying them.

 need for direct evidence

  Statistical evidence must be presented to support a claim of adverse impact, 3 types:

A. flow statistics, which look at differences in selection rates (proportion of applicants hired) among
different groups for a particular job.

B. stock statistics, the percentage of women or minorities actually employed in a job category is
compared with their availability in the relevant population.

C. concentration statistics, the percentages of women or minorities in various job categories are
compared to see if they are concentrated in certain workforce categories.

Enforcement proceedings begin when an employee or job applicant files a charge (the EEOC itself may
also file a charge).

Complementing conciliation is the use of mediation. a neutral third party mediates the dispute between
the employer and the EEOC and obtains an agreement between them that resolves the dispute.

 Participation in mediation is voluntary.

 Either party may opt out of it for any reason.

 Mediation proceedings are confidential.

 Any agreement reached between the parties is legally enforceable.

Litigation and Remedies

 should conciliation fail

 suit is filed in federal court

 the ensuing litigation processes

 the charge of the plaintiff (charging party) will follow either a disparate treatment or a disparate
impact route.

Civil Rights Acts (1964, 1978, 1991)

Establishment of Disparate Impact

  staffing practices that may seem unfair, outrageous, or of dubious value to the employer but do
not cause adverse impact are not illegal

 staffing practices that the plaintiff initially alleges to have caused adverse impact are unlawful
unless the employer can successfully rebut the charges.

 the plaintiff must show adverse impact for each specific staffing practice or component.

Disparate Treatment Intentional discrimination with staffing practices is prohibited, and the employer
may not use a claim of business necessity to justify intentional use of a discriminatory practice.

Mixed Motives An employer may not defend an action by claiming that while a prohibited factor, such as
sex, entered into a staffing decision, other factors, such as job qualifications, did also.

Bona Fide Occupational Qualification An employer may attempt to justify use of a protected
characteristic, such as national origin, as being a bona fide occupational qualification (BFOQ).

Testing The law explicitly permits the use of tests in staffing.

Test Score Adjustments Test scores are not to be altered or changed to make them more fair; test scores
should speak for themselves.

Seniority or Merit Systems The law explicitly permits the use of seniority and merit systems as a basis
for applying different terms and conditions to employees.

 the seniority or merit system must be “bona fide,”

 it may not be the result of an intention to discriminate.

 particularly relevant to internal staffing systems.

Employment Advertising Discrimination in employment advertising is prohibited.

Pregnancy An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a
pregnancy-related condition, or because of the prejudices of coworkers, clients, or customers.

Preferential Treatment and Quotas The law does not require preferential treatment or quotas.

Age Discrimination in Employment Act (1967)

Prohibited Age Discrimination The law explicitly and inclusively prohibits discrimination against those
aged 40 and older.

Bona Fide Occupational Qualification it is not unlawful for an employer to differentiate among
applicants or employees on the basis of their age “where age is a bona fide occupational qualification
reasonably necessary to the normal operation of the particular business.”

Reasonable Factors Other Than Age

  a measured factor (e.g., job skill) is related to the employer’s business purpose.

 the factor has been accurately and fairly identified and applied.

 managers and supervisors were given guidance or training about how to use the factor and avoid
discrimination.

 limits were placed on supervisors’ discretion to assess employees subjectively.

 adverse impact against older workers was assessed, including the degree of harm to older
workers.

 steps were taken to reduce the harm.

Seniority Systems The law permits the use of seniority systems (merit systems are not mentioned).

Employment Advertising Employment advertising may not contain terms that limit or deter the
employment of older individuals.

Americans With Disabilities Act (1990, 2008)

The ADA’s basic purpose is to prohibit discrimination against individuals with dis- abilities who are
qualified for the job, and to require the employer to make reason- able accommodation for such
individuals unless that would cause undue hardship for the employer.

Definition of a Disability

1. A physical or mental impairment that substantially limits one or more major life activities (an “actual
disability”)

2. A record of physical or mental impairment that substantially limited a major life activity (a “record of”)

3. When an employer takes an action prohibited by the ADA because of an actual or perceived
impairment that is not both transitory and minor (“regarded as”)

An impairment is a physical or mental disorder, illness, or condition.

A physical impairment is any physiological disorder or condition, cos- metic disfigurement, or

anatomical loss affecting one or more body systems

Record of a Disability A person who does not currently have a substantially limiting impairment but had
one in the past has a record of disability.

Regarded as Disabled. A person is regarded as having a disability if the employer takes a prohibited
action under the ADA (e.g., failure to hire or promote) based on an impairment the employer thinks the
person has, unless the impairment is temporary (e.g., less than six months) and minor.
Qualified Individual A person is qualified for the job if he or she can meet the job’s general
requirements (e.g., skills, education, experience, licenses, and certification) and perform the job’s
essential functions (duties) with or without reasonable accommodation.

Essential Job Functions the major, nontrivial tasks required of an employee.

The employer must make “reasonable accommodation” for the “known physical or mental
impairments of an otherwise qualified, disabled job applicant or employee.

Direct Threat The employer may refuse to hire an individual who poses a direct threat to himself or
herself or to the health and safety of others.

A veteran with a service-connected disability is covered by the ADA if the person meets the ADA
definition of a disability and is qualified for the job.

Genetic Information Nondiscrimination Act (2008)

The Genetic Information Nondiscrimination Act (GINA) prohibits the use of gene- tic information in
employment, as well as its acquisition; confidentiality of genetic information is required.

Genetic information includes an individual’s genetic tests, genetic tests of family members, and the
manifestation of a disease or disorder in family members (i.e., the family’s medical history). Age and sex
are not included as genetic information.

Confidentiality of Information Any genetic information is to be maintained in a separate file, but it is

okay to use this same file for ADA purposes. There are strict limits on the disclosure of genetic
information.