Legal StuffLegal Stuff
Legal Issues in HRM
Staffing– Hiring and firing procedures– EEO (coming attraction…)
Compensation & benefits Safety Labor relations
Why Worry?
Aren’t all these laws just a burden on business? Legal compliance important
– Cost of non-compliance– Public image
Also, too, legal compliance is generally good business
Sources: “Add “value…” (2002);Grossman (2002); “Off the clock” (2003); Wright & Ferris (1995)
More Costs
Texaco. $175 million. That was the legal settlement. It has been estimated that the total cost to Texaco shareholders could have been $500 million.
Rent-a-Center. $47 million. Chuck E. Cheese. $13 million. Outback Steakhouse. 1 plaintiff. $2.2 million. $64,000
in back wages, $50,000 in compensatory damages for her emotional pain and suffering, and $2.1 million in punitive damages.
Sources: Labich (1999); Pruitt & Nethercutt (2000); www.eeoc.gov
Hiring & Firing Procedures
Immigration Reform and Control Act (1986)– All employees must prove eligibility to work in U.S.– The I-9
Polygraphs WARN (1988)
– Worker Adjustment and Retraining Act)– Provides for advance notification of facility closings or major
layoffs (33%+ of workforce or 500+ people)
Employment at will (state laws) EEO
Employment at Will
Common law doctrine:– Employers may hire, fire, demote and promote
whomever they choose, unless a law exists to the contrary
– Depends on state courts’ interpretations General exceptions to EAW:
– Public policy– Implied employment contract– Good faith and fair dealing
However, EAW is all but dead
Just Cause
Reason for termination stems from a job-related, work performance problem
Employee knew that the problem could result in termination
If necessary, a fair and impartial investigation has been conducted (and documented)
Substantial evidence supports firing employee Firing is not an unusually harsh action Problems are handled consistently
EEO Laws
Equal Pay Act (1963) Civil Rights Act, Title VII (1964) Age Discrimination in Employment Act (1967) Executive Order 11246 (1964) Rehabilitation Act (1973) Pregnancy Discrimination Act (1978) Uniform Guidelines on Employee Selection Procedures
(1977) Americans with Disabilities Act (1990) Civil Rights Act (1991)
Other Sources of EEO Guidance
Uniform Guidelines on Employee Selection Procedures (1978)– Outlines standards for validating selection
procedures (any procedure is a “test”)– Defines adverse impact and adverse treatment– 4/5 rule– Mandates recordkeeping
Court cases (Federal courts)
EEO Enforcement
Equal Employment Opportunity Commission (EEOC)
Office of Federal Contract Compliance Programs (part of Department of Labor)
Source: Shuit (2003).
Court Cases
Griggs vs.Duke Power (1971) U.S. vs. Georgia Power (1973) McDonnell Douglas vs. Green (1973) Spurlock vs. United Airlines (1972) Connecticut vs. Teal (1982) Watson vs. Ft. Worth Bank and Trust (1988) OFCCP vs. Ozark Air Lines (1986) Auto Workers vs. Johnson Controls (1991) Wards Cove Packing vs. Atonio (1989)
EEO Coverage: In General
What’s covered Recruitment, hiring and
firing Pay Transfer and promotion Use of company facilities Training programs Other terms and
conditions of employment
Who’s covered Gender
– Pregnancy treated as other medical conditions
– Sexual harassment Race or color Religion National origin Age (> 40) Disability
The WalMart Suit
Based on gender and promotions to management– 2/3 of employees female; only 1/3 of
managers– Only 14% of store managers are women
Certified as a class action (1.5 to 1.6 million plaintiffs)
Cost to WalMart???
Remedies Under EEO
Back pay Compensatory damages Hiring Promotion Reinstatement Reasonable accommodation Other actions that will make an individual "whole” * Payment of:
– Attorneys' fees– Expert witness fees– Court costs
* In the condition s/he would have been but for the discrimination
Equal Pay Act
Covers gender only Requires equal pay for work requiring similar:
– Effort– Skill– Responsibility– Working conditions
Exceptions for:– Merit– Seniority
Remember these… They’ll appear again...
Uniform Guidelines on Employee Selection Procedures (1978)
EEO Terminology
Protected class BFOQ Reliability and validity Disparate treatment Disparate impact
BFOQ
Bona fide occupational qualification A legal basis for taking into account an otherwise
impermissible factor Why?
– Authenticity (actress, undercover police officer)– Personal service (nursing assistant, clothing fitter)– Religion (religious organizations)– Public safety
Why not?– Paternalism– Perceived customer preference– Stereotypes
Reliability
Selection procedures need to be both reliable and valid Called for under Uniform Guidelines, but a standard psychometric
concept Reliability
– Does a procedure (test, interview) provide consistent results?
Interviewer A Interviewer B Candidate 1 90% 87%
Candidate 2 45% 51%
Candidate 3 71% 75%
Candidate 4 85% 90%
Candidate 5 18% 18%
Validity
Does the procedure measure what it is designed to measure?
Called for under Uniform Guidelines, but a standard psychometric concept
Establishing validity– Criterion– Content– Construct
50
70
90
0 1 2 3 4 5
50
70
90
0 1 2 3 4 5
Disparate Treatment
Differential treatment of individuals in a protected class
Examples– Asking only female applicants about child care
arrangements– Requiring minority applicants to have a high school
diploma, but not white applicants To defend:
– Establish lack of intent– Show nondiscriminatory reason for the practice
Disparate Impact
How it works– Statistically determine (4/5 rule) if protected classes
are impacted by a employment procedure– Assumption is that a prima facie case of
discrimination exists; defendant then bears burden of proof
Defending against a disparate impact case– BFOQ– Establish validity of procedure– Business necessity or job-relatedness
Americans With Disabilities Act
Disability Essential function Reasonable accommodation Undue hardship Prohibited inquiries
Other EEO Issues and Controversies
Gender– Sexual harassment– “Glass Ceiling”
Race– Affirmative action
Religion– The extent of accommodations
Sexual Harassment
Sexual harassment defined Employer’s responsibilities
Is it a “female thing” ???– In 2003, almost 15% of charges filed with
EEOC were filed by men
What is Sexual Harassment?
Typically male female, but can be any combination Quid pro quo
– Sexual favors as a condition of employment Hostile environment
– Creating an intimidating, hostile or offensive work environment– Reasonable person vs. reasonable woman standard (Harris case)
Can also involve third parties: suppliers, vendors, customers, clients, independent contractors and the general public
Important: Harassment can also involve race, religion or disability status
Hostile Environment
An intimidating, hostile or offensive work environment Causes harm
– Reduced work performance– Psychological harm– Forced resignation
Pervasive conduct (one or two incidents not sufficient) What can it include
– Offensive or demeaning language or references (“dumb-a** women”
– Inappropriate behaviors– Pictures, graffiti, etc.
Sexual Harassment: The Organization’s Policies
Company can be liable if no policy for handling harassment is in place and enforced
Have a policy, communicate it and train employees What to include in a policy?
– Define sexual harassment and make clear that it is not tolerated– Complaint procedure (including method for reporting harassment
by direct supervisor)– Time frame for investigation– Penalties for violating policy– Confidentiality for complainant and alleged harasser– Protection against retaliation
“Glass Ceiling”
Belief that there is a barrier preventing women and minorities from rising beyond a certain level in organizations
Does it exist?– Women are generally under-represented at higher levels of
the organization– Pervasive discrimination?– Time will take care of it?– Women make less investment in work?– Women gravitate towards staff vs. line positions– Undervaluing “emotional” work
Affirmative Action and Diversity
Definitions– Affirmative action: catching up with past
discrimination, making uses of goals and timetables for bringing protected classes into the workforce
– Diversity management: taking advantage of the diverse workforce, without expecting those who are different to fit in or conform
Legal issues with affirmative action– Voluntary plans– OFCCP (Federal contractors,banks)– Consent decrees
Religion and Work
Religion and hiring: religion can (rarely) be a BFOQ [religious institutions]
“An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.”
Time Away From Work
Jury duty Military service FMLA
Sources: “Ex-juror’s case… (1991); Hansen (2003); Segal, 2003
Unpaid leave up to 12 weeks per year– Seriously ill family member– Own illness– Birth of a child– Adoption of a child
Companies with 50 or more employees, after 1 year employment
Return to same or equivalent job Top 10% paid employees not eligible State laws may be more generous
Family And Medical Leave Act(FMLA)
Compensation
Fair Labor Standards Act (1938) Davis-Bacon Act (1931)
– Requires payment of “prevailing wage” for public works construction
Fair Labor Standards Act
Originally passed in 1938 Covers four main areas
– Overtime– Minimum wage– Child labor– Peonage
Enforcement by Wage and Hour Division, Department of Labor
Overtime Provisions
Overtime applies after 40 hours per week Overtime rate is ½ regular hourly rate Time worked:
– Any time employees permitted or allowed to work– Waiting time– On-call if mobility restricted– Rest periods (< 20 minutes) covered, but not meal
breaks
Exemptions From Overtime
Depends on actual content of work, not title Types of exemptions
– Executive– Administrative– Professional– Outside sales
Exemptable workers may be paid overtime as market demands
Sources: “Managers to get $2.9 million” (2001); “Overtime pay target of Eckerd lawsuit” (1999)
Executive Exemption
Management is primary duty Direct 2 or more full-time employees Authority to hire, fire, or recommend
personnel actions Exercise high degree of independent
judgment No more than 20% of time on non-
management duties (40% in retail & service)
Source: http://www.dol.gov/_sec/media/speeches/541_side_by_side.htm
Eliminated as of August 23, 2004
Administrative Exemption
Office or non-manual work related to management policies or general business operations
Exercise discretion and judgment Assist a owner or executive or perform
specialized or technical work or execute special assignments
No more than 20% of time on non-management duties (40% in retail & service)
Source: http://www.dol.gov/_sec/media/speeches/541_side_by_side.htm
Eliminated as of August 23, 2004
Professional Exemption
Type of work:– Work requires advanced knowledge and education– Original and creative artistic work– Teaching– IT professions (depending on pay)
Work is intellectual and varied in character Work cannot be standardized as to time Salary requirement met (except for physicians, attorneys,
teachers and some IT occupations) No more than 20% of time on non-exempt work Must pay OT if paid by hours worked
Source: http://www.dol.gov/_sec/media/speeches/541_side_by_side.htm
Eliminated as of August 23, 2004
Computer Employees
“Work requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering.”
“Consistently exercises discretion and judgment.” “Performs work that is predominantly intellectual
and varied in character and is of such character that the output produced or result accomplished cannot be standardized in relation to a given period of time.”
Outside Sales Exemption
Sales away from employer’s place of business
No more than 20% of time on non-exempt work
Source: http://www.dol.gov/_sec/media/speeches/541_side_by_side.htm
Eliminated as of August 23, 2004
Child Labor
Regulated by age categories:– Bars hazardous work– Hours worked
Provisions do not cover family-owned farms or businesses
Also some exemptions for legitimate apprenticeships
Child Labor Restrictions
Under age 14– Acting– Newspaper sales– Casual babysitting and
the like
14 and 15 years old– No hazardous work– Limited hours
16 and 17 years old– No hazardous work
18 and above– No restrictions
Hours Limitations
No work during school hours No more than 3 hours on a school day No more than 8 hours on a non-school day No more than 18 hours in a week when
school in session No more than 40 hours a week when
school not in session Between 7 am and 7 pm (9 pm in summer)
Hazardous Occupations
Manufacturing or storing explosives
Driving a motor vehicle Coal and other mining Wrecking and demolition Logging and sawmilling Power-driven woodworking
machines Exposure to radioactive
substances Power-driven hoisting
apparatus Power-driven metal working
Power-driven meat processing (including restaurant slicers)
Power-driven bakery equipment
Power-driven paper processing (including balers, compactors)
Brick & tile manufacturing Operate circular saws, band
saws Roofing (even on ground) Trenching and excavating
Source: Lica (2003)
Minimum Wage
Currently $5.15 / hour States may enact higher minimums (and
that then applies) Should minimum wage be raised?
Trends in Minimum Wage
$5.15
$0.25
$0.00
$1.00
$2.00
$3.00
$4.00
$5.00
$6.00
Source: DoL, Wage and Hour Division
State Minimum Wage Laws
Source: DoL, Wage and Hour Division, 2003
State minimum higher than Federal
Same
No state minimum
State minimum lower than Federal
Benefits
Social Security Act (1936) ERISA (1974) COBRA (1985) Health Insurance Portability and Accountability
Act (1996) Newborn and Mothers’ Health Protection Act
(1996) Mental Health Parity Act (1996) Women’s Health and Cancer Rights Act (1998)
Social Security
Originally provided for old age insurance and disability coverage (1935)
Medicare added in 1965 Benefits for:
– Retirement– Disability– Survivors (lump sum and monthly payments)
Based on contributions from employers and employees Majority of U.S. workers covered Should Social Security be privatized?
ERISA Provisions
Passed in 1974 in response to abuses of pension plans Does not require that a plan be offered Covers:
– Who is eligible?– Vesting (entitlement to employer contributions)– Plan funding required
Also established Pension Benefit Guarantee Corporation– Employers required to pay premiums to PBGC to cover company
bankruptcies; if necessary, PBGC will assume payments
COBRA
Provides for continuation of health coverage (if offered)
Employee pays 102% of total cost Coverage period:
– 18 months for terminated employees– 36 months for spouse / ineligible dependent
Other Federal Laws Regulating Health Plans
Health Insurance Portability and Accountability Act (1996)
Newborn and Mothers’ Health Protection Act (1996)
Mental Health Parity Act (1998) Women’s Health and Cancer Rights Act
(1998)
Safety
OSHA (1974)– Established standards for employee safety– Addresses on-the-job injuries and occupational
illnesses
Hazardous Communication Standard (mid-1980s)– Requires Manufacturers’ Safety Data Sheets
OSHA requires recordkeeping and site inspections
Labor Relations
Very much a specialist area– Federal laws– Norris-LaGuardia Act (1932)– Wagner Act (1935)– Taft-Hartley Act (1947)– Landrum-Griffith Act (1959)
State laws– Right-to-work laws (union shop illegal)
Right to Work States
Source: http://www.nrtw.org