Chapter 13

Legal Issues Impacting Human Resource Management

WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

The Emerging Issue

Federal, state, and local legislation is often cited by many emerging firms as one of the major barriers to growth. Compliance to these laws covering hiring practices, compensation, employee safety, and labor relations is viewed as a major cost of doing business. Because of the huge expenses related to fighting employee lawsuits or paying government fines, integrating legal compliance into daily management practices would be extremely cost effective and beneficial for the protection of the employees.
WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Chapter Overview
Legislation and government regulations have done more to spur the development of the human resource function than any other environmental factor. This chapter will provide an overview of: Four major areas of government legislation Equal employment opportunity legislation Legal concepts of employment-at-will Negligent/hiring retention Concepts of adverse impact and affirmative action
WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

The Major Types of Legislation and Regulations

Equal Employment Opportunity Compensation and Benefits

Employee Safety and Health

Labor Relations

WED 469 Training Systems Management, Chapter 13

The Major Types of Legislation and Regulations

Equal Employment Opportunity
To prohibit discrimination in employment based on minority/protected group status To establish an enforcement agency The Equal Employment Opportunity Commission (EEOC) To encourage government contractor / subcontractor compliance with EEO legislation and regulations
WED 469 Training Systems Management, Chapter 13

The Major Types of Legislation and Regulations

Compensation and Benefits
To establish pay equity among protected groups To establish pay guidelines for government contractors To support the concept of prevailing wage To provide guidelines regarding minimum wage, overtime, and child labor To provide administrative requirements for pension / retirement plans and other employee benefits

WED 469 Training Systems Management, Chapter 13

The Major Types of Legislation and Regulations

To provide requirements for establishing a safe workplace To establish an enforcement agency The Occupational Safety and Health Employee Safety Administration

To protect employee rights to unionize To establish bargaining rules for management and labor To establish an enforcement Labor Relations agency The National Labor Relations Board

and Health

WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Equal Employment Opportunity Legislation and Regulations

The human resource function is a discriminatory activity. Decisions have to be made on whom to hire, fire, promote, give pay raises, etc. It is when these decisions are not made according to Equal Employment Opportunity Act requirements that a firm may find it has problems with illegal discrimination. Illegal discrimination can be formal defined as unfair actions towards members of a protected class.
WED 469 Training Systems Management, Chapter 13

Congressional Acts
U.S. Constitution 5th Amendment

U.S. Constitution 13th Amendment

U.S. Constitution 14th Amendment Civil Rights Act, 1866 and 1871 Equal Pay Act, 1963 Civil Rights Act, 1964 (Title VII) Age Discrimination in Employment Act, 1967 Equal Employment Opportunity Act, 1972

Pregnancy Discrimination Act, 1978

Immigration Reform and Control Act, 1986 Americans with Disabilities Act, 1990 Civil Rights Act, 1991 Executive Orders 11246, 11375, and 11478
WED 469 Training Systems Management, Chapter 13

Employee Rights (Common Law)

Employees also have rights under what is called common law. Common law doctrine is based on court decisions and precedents. Some of the most important human resource issues that have developed through common law include: Employment-at-well Negligent hiring / retention, and Constructive discharge
WED 469 Training Systems Management, Chapter 13

Employment-at-Will
Employment-at-will doctrine states that employment is at the will of the employer or the employee and either can sever the relationship at any time. Over the years, the courts have defined exceptions: 1. Public policy exception (whistle blower) 2. Existence of a written or implied contract. 3. Implied covenant of good faith or fair dealing. 4. Separation that is in violation of an established law or ordinance.
WED 469 Training Systems Management, Chapter 13

Negligent Hiring/Retention
Negligent hiring and negligent retention holds employers responsible for exercising reasonable care in the hiring of their employees. It includes activities such as reference checks, criminal background checks, skills testing, and psychological testing. Negligent retention is similar to negligent hiring. It focuses on the situation in which organizations knowingly retain employees who have a high risk of injuring themselves or others.
WED 469 Training Systems Management, Chapter 13

Constructive Discharge
The common law doctrine of constructive discharge is based on the behavior of employers when they force employees to resign by creating intolerable working conditions. Intolerable conditions can include job reassignment, changing work hours / shifts, and allowing harassment by other employees.

WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Proving Illegal Discrimination

Establishing Adverse Impact: Adverse impact occurs when an employment practice has a disproportionate affect on member(s) of one protected group. The plaintiff can use either a disparate treatment or a disparate impact argument.

WED 469 Training Systems Management, Chapter 13

Disparate Impact
Court decisions allow three types of data for determining disparate impact. These types of data are: Comparative statistics: compares hiring rates or ratios of protected minority groups to the hiring ratios of the majority group; Demographic statistics: compares the firms workforce to the population at large; and Concentration statistics: prove that protected minority groups are restricted to a particular job or level of jobs.
WED 469 Training Systems Management, Chapter 13

Disparate Treatment
Disparate treatment exists when an employer intentionally illegally discriminates against an individual. To demonstrate disparate treatment, the plaintiff must show the following: 1. The individual belongs to a protected minority group 2. The individual applied for a job for which the employer was seeking applicants. 3. Despite being qualified, the individual was rejected. 4. After the individuals rejection, the employer kept looking for people with the applicants qualifications.
WED 469 Training Systems Management, Chapter 13

Defenses to Discrimination

The organization accused of illegal employment discrimination defends itself by proving that its selection procedures were 1) job related, 2) represented a bona fide occupational qualification, or 3) were subject to a seniority system.
WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Affirmative Action Program (AAP)

Affirmative action involves an employer taking the steps to recruit, hire, and promote members of protected groups. It should consist of the following four parts:
A utilization analysis showing the percentage of protected groups in the organization An availability analysis showing the availability of protected groups in the community. An identification of problem areas in which protected groups are under-represented or underutilized. An action plan with specific goals and timetables to deal with the identified problem areas.
WED 469 Training Systems Management, Chapter 13

Affirmative Action Program (AAP)

The three basic reasons requiring an organization to implement an AAP are:
1. A Government contractor 2. Guilty of illegal employment discrimination 3. Voluntary implementation

The three basic causes for an AAP are described below:

1. Compliance with EO 11246 2. Court-ordered Consent Degree

3. Voluntary AAP

WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Sexual Harassment
There are two types of sexual harassment: Quid pro quo sexual harassment where a supervisor trades sexual activity for advancement opportunities of some sort. Sexual harassment in which an unwelcome hostile environment is created by a supervisor or any other employee.

WED 469 Training Systems Management, Chapter 13

How to avoid or reduce liability:

Make sure you have a written policy against sexual harassment Make sure everyone knows about the policy Investigate every complaint in accordance with your procedures Document every employment decision Refer to HR Tool Kit in Chapter 13
WED 469 Training Systems Management, Chapter 13

Chapter Outline
The Emerging Issue Chapter Overview The Major Types of Legislation and Regulations Equal Employment Opportunity Legislation and Regulations Proving Illegal Discrimination Affirmative Action Programs Sexual Harassment Chapter Summary
WED 469 Training Systems Management, Chapter 13

Chapter Outline
The legal environment in which the human resource function operates provides a huge challenge to emerging enterprises. Legal issues affect the field of human resource management in at least four areas. These areas are: Equal employment opportunity, Compensation, Safety and health, and Labor Relations

Chapter Summary
WED 469 Training Systems Management, Chapter 13