LEGAL COMPLIANCE

EXHIBIT 1.1: Staffing Organizations Model

 The Employment Relationship
Employer-Employee
• Most prevalent form of employment relationship
• Involves an agreement between employer and
employee on terms and conditions of employment
-Results in an employment contract
Independent Contractors
• Are not considered employees, in a legal sense, of
employer
Temporary Employees
• Do not have special legal stature

EXHIBIT 1.2: Matching Process, Employment Contract, and Employment Process

Laws and Regulations
Establishing and maintaining the employment relationship involved exercising discretion by
both the employer and employee
- employment laws affecting the relationship spring from a need to define the scope of
permissible discretion and place limits on it
Need for Laws and Regulations
BALANCE OF POWER
•employment relationships involve negotiating issues of power
PROTECTION OF EMPLOYEES
•laws and regulations seek to provide specific protections to employees that they
are unlikely to get for themselves in an employment contract
PROTECTION OF EMPLOYERS
•they provide guidance to employers as to what are permissible practices and
what are impermissible practices
Disparate Treatment and Disparate
Impact
Claims of discrimination in staffing ultimately require evidence and
proof, particularly as these charges pertain to the staffing system
itself and its specific characteristics as it has operated in practice.

Toward this end, there are two avenues or paths to follow :

Disparate Treatment and Disparate Impact.
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.
 Disparate Impact
Focuses on effect of employment practices,
rather than on motive or intent underlying them
•As a result of a protected characteristic, people
are adversely affected by an employment
practice
Evidence -- Involves use of statistics
•Types of Disparate Impact Statistics
-Applicant flow statistics
-Four-fifth’s rule - An employment practice
has disparate impact if hiring rate for minority
group is less than four-fifths (or 80%) of hiring
rate for majority group.
-Stock statistics
-Concentration statistics

EXHIBIT 1.3: Types of Disparate Impact Statistics

Civil Rights Acts
 Civil Rights Acts
Unlawful Employment Practices This section of the law contains a comprehensive statement regarding unlawful employment practices. Specifically, it is
unlawful for an employer:
 
1. “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin”; or
 
2. “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such
individual’s race, color, religion, sex, or national origin.”

 Establishment of Disparate Impact
First, staffing practices that may seem unfair, outrageous, or of dubious value to the employer but do not cause adverse
impact are not illegal (assuming, of course, that no intention to discriminate underlies them).
Second, staffing practices that the plaintiff initially alleges to have caused adverse impact are unlawful unless the employer
can successfully rebut the charges.  
Third, 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. Such “mixed motive” defenses are not permitted. A plaintiff may
pursue a mixed motive claim with either circumstantial or direct evidence of discrimination.

 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). The law permits such claims, but only for sex, religion, and national origin—not race or
color.

 Testing The law explicitly permits the use of tests in staffing. The employer may “give and act upon the results of any professionally
developed ability test, provided that such test, its administration, or action upon the basis of results is not designed,
intended, or used to discriminate because of race, color, religion, sex, or national origin.”

 Test Score Adjustments Test scores are not to be altered or changed to make them more fair; test scores should speak for themselves. Specifically, it
is an unlawful employment practice “to adjust the scores of, use different cut-off scores for, or otherwise alter the results of
employment-related tests on the basis of race, color, religion, sex, or national origin.”

 Seniority or Merit System The law explicitly permits the use of seniority and merit systems as a basis for applying different terms and conditions to
employees. However, the seniority or merit system must be “bona fide,” and it may not be the result of an intention to
discriminate.

 Employment Advertising Discrimination in employment advertising is prohibited. Specifically, the employer may not indicate “any preference,
limitation, specification, or discrimination based on race, color, religion, sex, or national origin.” An exception to this is if sex,
religion, or national origin is a BFOQ.

 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.
Age Discrimination in
Employment Act
 Age Discrimination in Employment Act
Prohibited Age Discrimination 1. “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions or privileges of employment,
because of such individual’s age”; and
 
2. “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s age.”

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 The employer may use reasonable factors other than age (RFOA) in making employment decisions.

Reasonableness depends on the extent to which;

(1) a measured factor (e.g., job skill) is related to the employer’s business purpose,
(2) the factor has been accurately and fairly identified and applied,
(3) managers and supervisors were given guidance or training about how to use the factor and
avoid discrimination,
(4) limits were placed on supervisors’ discretion to assess employees subjectively,
(5) adverse impact against older workers was assessed, including the degree of harm to older
workers,
and
(6) steps were taken to reduce the harm.

Seniority Systems Employment advertising may not contain terms that limit or deter the employment of older
individuals. It is permissible, however, to use terms or phrases that express a preference for older
workers, such as “over age 60,” “retirees,” or “supplement your pension.”

Employment Advertising  An employer may attempt to justify use of a protected characteristic, such as national origin, as
being a bona fide occupational qualification (BFOQ). The law permits such claims, but only for sex,
religion, and national origin—not race or color.
Disability Act
Definition of a Disability
The EEOC provides considerable regulation and guidance on the complex issue of what is a disability. The
definition is interpreted in favor of broad coverage of individuals. There are three prongs to the
definition:
 
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”)
Actual Disability
An impairment is a physical or mental disorder, illness, or condition. A physical impairment is any
physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or
more body systems such as neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune,
circulatory, hemic, lymphatic, skin, and endocrine. Also included (with special guidance) are
cancer, diabetes, epilepsy, and intellectual disabilities. A mental or psychological disorder
includes intellectual disability, organic brain syndrome, emotional or mental illness, and specific
learning disabilities.
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. Additionally, a person who was misclassified as having a
substantially limiting impairment 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.
 Disability Act
Prohibited Discrimination The law contains a broad prohibition against disability discrimination. It specifically says that an employer may not
“discriminate against an individual on the basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” Also prohibited is discrimination based on an applicant’s or employee’s association with a person with a
disability.

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.
Among qualified individuals, the employer can hire the most qualified person for the job.

Essential Job Functions The law provides little guidance as to what are essential job functions. It would seem that they are the major, nontrivial tasks
required of an employee. The employer has great discretion in such a determination. Specifically, “consideration shall be
given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall be considered evidence of the
essential functions of the job.”
Reasonable Accommodation and Undue Hardship Unless it would pose an “undue hardship” on the employer, the employer must make “reasonable accommodation” for the
“known physical or mental impairments of an otherwise qualified, disabled job applicant or employee.” To qualify for
reasonable accommodation, the person must be covered under the first (actual dis- ability) or second (record of disability)
prong of the disability definition.
Selection of Employees 1. “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities unless the standard, test, or other selection criteria, as
used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity”;
and
 
2. “failing to select and administer tests concerning employment in the most effective manner to ensure that, when such a
test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such
results accurately reflect the skills, aptitude or whatever other factor of such applicant or employee that such test purports
to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to measure).”

Medical Exams for Job Applicants and Employees Prior to making a job offer, the employer may not conduct medical exams of job applicants, inquire whether or how severely
a person is disabled, or inquire whether the applicant has received treatment for a mental or emotional condition. Specific
inquiries about a person’s ability to perform essential job functions, however, are permitted.

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.

Affirmative Action There are no affirmative action requirements for employers.

Veterans 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. Vets with dis- abilities may also be covered under other laws and regulations that go beyond ADA
requirements, such as asking an applicant to self-identify as a disabled veteran, and undertaking affirmative action on behalf
of disabled veterans.
OTHER STAFFING
LAWS
Immigration Reform and Control OTHER STAFFING LAWS

Act (1986)
The purpose of the IRCA and its amendments is to prohibit the employment of unauthorized
aliens and to provide civil and criminal penalties for violations of this law. The law covers all
employers regardless of size.
 OTHER STAFFING LAWS

Prohibited Practices
The law prohibits the initial or continuing employment of unauthorized aliens. Specifically,
 
“it is unlawful for a person or other entity to have, or to recruit or refer for a fee, for
employment in the United States an alien knowing the alien is an unauthorized alien with
respect to such employment”; and
 
“it is unlawful for a person or other entity, after hiring an alien for employment . . . to continue
to employ the alien in the United States knowing the alien is (or has become) an unauthorized
alien with respect to such employment.” (This does not apply to the continuing employment of
aliens hired before November 6, 1986.)
Employment Eligibility Verification OTHER STAFFING LAWS

System
The employer must verify that the individual is not an unauthorized alien and is legally eligible
for employment by obtaining proof of identity and eligibility for work. The employer uses the I-9
form to gather documents from the new employee that establish proof of both identity and
eligibility (authorization) for work. Documents that establish proof are shown on the back of the
I-9 form.
 OTHER STAFFING LAWS

Temporary Visas
The employer may apply for temporary visas for up to six years for foreign workers under two
major visa categories (there are other, minor categories that are not covered here). The first
category is H-1B visa. An H-1B non- immigrant must have a bachelor’s degree (or equivalent) or
higher in a specific specialty.
 OTHER STAFFING LAWS

Enforcement
The law is enforced by the US Citizenship and Immigration Ser- vices within the Department of
Homeland Security. Noncompliance may result in fines of up to $10,000 for each unauthorized
alien employed, as well as imprisonment for up to six months for a pattern or practice of
violations. Federal contractors may be barred from federal contracts for one year.
 
 OTHER STAFFING LAWS

Civil Service Laws and Regulations

Federal, state, and local government employers are governed by special statutory laws and
regulations collectively referred to as civil service. Civil service is guided by so-called merit
principles that serve as the guide to staffing practices. The principles serve to prevent cronyism
(political patronage) in hiring.
 OTHER STAFFING LAWS

Merit Principles and Staffing Practices

The essence of merit principles relevant to staffing is fourfold:
1. To recruit, select, and promote employees on the basis of their KSAOs
2. To provide for fair treatment of applicants and employees without regard to political
affiliation, race, color, national origin, sex, religion, age, handicap, and other characteristics
3. To protect the privacy and constitutional rights of applicants and employees as citizens
4. To protect employees against coercion for partisan political purposes
Merit principles are codified in civil service laws and regulations.
 OTHER STAFFING LAWS

Comparisons With Private Sector

Merit principles and civil service laws and regulations combine to shape the nature of staffing
practices in the public sector. This leads to some notable differences between the public and
private sectors. Examples of public sector staffing practices are the following:
1. Open announcement of all vacancies, along with the content of the selection process that will
be followed
2. Very large numbers of applicants due to applications being open to all persons
3. Legal mandate to test applicants only for KSAOs that are directly job related
4. Limits on discretion in the final hiring process, such as number of finalists, ordering of
finalists, and affirmative action considerations
5. Rights of applicants to appeal the hiring decision, testing process, or actual test content and
method