Employee Law

Project Summary

Employment Law

The employment relationship is a contractual one between an employer and a worker. The worker may be either an employee or an independent contractor. Distinguishing between the two is very important. It has an effect on compensation, benefits, harassment, family leave, workers' compensation, unemployment insurance, and discrimination, (Moran, 2008, p. 3). In an employment relationship, authority is conveyed by an employer to an employee. Deciding what kinds of authority and how much authority to grant are important issues for employers to resolve, (Moran, 2008 ). Inherent in every employment relationship is the employee's duties of loyalty and good faith and the employer's duties to compensate and maintain a safe working environment. Violations of these duties give rise to contractual and tort liability. A contract Is a legally enforceable agreement. A tort Is a private civil wrong. Tort liability encompasses assault and battery, defamation, invasion of privacy, and negligence. The key to an employers responsibility is whether the tort was committed within the scope of employment, in other words, "on the Job," (Moran, 2008, p. 3).

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Employers may attempt to employ restrictive covenants, also known as nincompoop or nondisclosure agreements. These agreements are used to protect the employer's business against theft of trade secrets, stealing clients, and competing against the former employer. Courts generally do not like to restrict people from working, but the courts will enforce these agreements where they are voluntarily signed and designed to protect the business from unfair competition, (Moran, 2008, p. 3). The purpose of recruitment and selection is to obtain the best possible workers for a business.

Discrimination is permissible with respect to selecting candidates based on interpersonal relations, communication skills, training, and education. It Is not permissible with respect to suspect classification such as race, religion, gender, age, disability, and national origin," (Moran, 2008, p. 37). Because employees are valuable assets to a business, employers must be able to choose those employees who will perform the best work for the business. Education, training, communication skills, and interpersonal relations are key qualities that employees must possess to help a business be more successful, (Moran, 2008, p. ). The easiest way to discriminate against individuals is to do so in the recruitment and selection process. Employers may use a myriad of methods to evaluate an individual and his or her particular traits. Testing, interviews, writing samples, demonstrations, and role-playing are a few examples, (Moran, 2008, p. 37). If these methods are job-related, then the employer has every right to use them. "What an employer may not do is discourage potential candidates who belong to a particular suspect classification as defined by Title VII of the Call Rights Act, the Age Delimitation In Employment Act, and the Americans with Deliverables Act," (Moran, 2008, p. 37). The selection process has become a complicated procedure for employers, (Moran, 2008, p. 67). They must inappropriate questions that can be inferred as being discriminatory. Employers must recruit from a diverse pool of candidates. Employers must keep accurate records of these candidates, such as who applied and who was hired. Employers must establish Job-related criteria necessary for promotions. Employers must perform background checks on employees to guard themselves against negligent hiring, but these checks are limited to activities or criminal convictions that are Job elated," (Moran, 2008, p. 67). Policies with regard to nepotism and promoting from within should also be drafted by the employer. The selection process is a daunting but necessary undertaking for the employer. As most of us know, it is an equally stressful experience for workers. Arbitration is a form of alternative dispute resolution where two sides look outside the court system to resolve a conflict, (Moran, 2008, p. 157).

In arbitration, an impartial arbitrator listens to claims, facts, and testimony from both sides, then issues a decision. By signing arbitration agreements, employees typically waive their right to file lawsuits when they have a dispute with their employers. However, the obligation to arbitrate can vary. Some employers require all disputes to go to arbitration, while others designate arbitration for only certain issues. "Binding" arbitration is most frequently used in employment agreements, where both sides agree ahead of time that the arbitrator's decision will be final, with very limited basis to appeal, (Moran, 2008, p. 58). However, an arbitration agreement alone does not mean that employers can never be sued over an employment issue. State and federal regulators can still sue employers when employees file complaints against companies for violating discrimination, pay, or other laws. Once employees or former employees decide to enter into arbitration, there are three basic steps in the proceedings: preheating briefs, the hearing, and the arbitrator's decision. Preheating briefs allow the company and employees to present their views and describe their evidence to the arbitrator.

During the hearing, both sides present their case to the arbitrator, which can include calling witnesses. Then the arbitrator makes a decision. Generally, employers do not take termination as personally as do employees. However, it can be a difficult process for both sides, especially if the employee believes that the discharge is wrongful. "At-will termination protects the rights of employers to terminate employees," (Moran, 2008, p. 153). Therefore, employees must evaluate the evidence to discern whether it meets one of the public policy exceptions to the at-will doctrine.

Employers must guard against compromising their protection under the at-will employment doctrine and should not stipulate that employees will be discharged only for cause or list explicit seasons for discharge in an employment handbook or in conversation with an applicant or an employee, (Moran, 2008, p. 153). Rather employers should state that employees may be discharged at any time for any reason. Shortly after the conclusion of the Civil War in 1865, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U. S.

Constitution were adopted, (Moran, 2008, p. 171). The Thirteenth Amendment abolished slavery. The Fifteenth Amendment gave black men the right to vote. But, it was the Equal Protection Clause of the Fourteenth Amendment that laid the basis for equal rights in employment, (Moran, 2008, p. 71). The Equal Protection Clause basically states that "all people are entitled to equal United States, in Please v. Ferguson, interpreted this to mean that separate but equal facilities would satisfy the Fourteenth Amendment requirement, (Moran, 2008, p. 171).

Segregation persisted into the sass, but inroads began to be made in the mid-sass with the Brown v. Board of Education decision, which mandated integration in public schools, (Moran, 2008, p. 171). This decision had a reverberating effect throughout society. In 1964, Congress passed the Civil Rights Act to legislate integration in schools, housing, restaurants, transportation, shopping, and employment. Title VII of the Civil Rights Act speaks to employment, (Moran, 2008, p. 171). It prohibits discrimination because of religion, race, color, sex, and national origin, (Moran, 2008, p. 171).

There are two main types of discrimination: disparate impact, which is discrimination against a class of people, and disparate treatment, which is discrimination against an individual, (Moran, 2008, p. 171). The key to establishing an affirmative action plan is to obtain the commitment of management, Moran, 2008, p. 199). Once committed, management can emphasize its importance and lead by example. An assessment must be made of the number of women and minorities and their current status within the organization. This data will prove invaluable as a benchmark against which the program's progress can be measured, (Moran, 2008, p. 99). Once the problem areas are identified, then recruitment and promotion issues must be addressed. A critical look at the current methods utilized must be taken, and a plan must be instituted to remedy its deficiencies. To bolster acquirement, notification should be sent to the placement office of schools with significant or exclusive women or minority populations. Women and minority organizations can also be advised of the need for prospective candidates. Advertisements in newspapers, magazines, radio, and television designed for women and minorities will enable a company to tap into that particular circle, (Moran, 2008, p. 99). Company tours for students and community groups are also beneficial. "Relying solely on referrals and traditional recruitment techniques will only reinforce discrimination," (Moran, 2008, p. 199). Career counseling to direct women and minorities toward career paths and training programs to help them realize these accomplishments must be created or embellished. The fact that counseling and training programs exist is not sufficient. They must be made available or specifically developed with women and minorities in mind.

Job descriptions must also be perused for possible barriers against women and minorities, (Moran, 2008, p. 199). If found, the descriptive narration must be rethought. All requirements must be Job- related. Any that are not should be eliminated, especially unnecessary education or experience; otherwise, discrimination will continue. Testing should also be restricted to when it is absolutely necessary and its reality and Job-relatedness can be proved, (Moran, 2008, p. 199). The assignment of grade levels to Jobs must also be reviewed for bias in favor of men, (Moran, 2008, p. 199).

If discovered, such bias must be readjusted. Interviewers must be indoctrinated to no longer believe that women and minorities can perform only certain Jobs - those involving routine ministerial tasks (Moran, 2008, p. 199). They must avoid asking women and minorities personal questions about marital status, other sources of income, number of children, criminal record, and other issues that are not Job-related and are not routinely asked of white and in-house rules and regulations must be redrafted to be gender-neutral, both in written communications and pictorials, (Moran, 2008, p. 199). Sexual harassment is defined as (1) a sexual advance or request for sexual favor made by one employee to another that is unwelcome and not consented to; and (2) touching, Joking, commenting, or distributing material of a sexual nature that an employee has not consented to and finds offensive, (Moran, 2008, p. 89). Although the court- appointed test for determining what constitutes sexual harassment is a reasonable person standard and what is reasonable may vary depending on the work environment, it is the purpose of this policy on sexual harassment to avoid litigation, not to win lawsuits.

Therefore, employees are forewarned that the use of certain terms may give rise to a woman's filing a sexual harassment complaint and are therefore prohibited, (Moran, 2008, p. 289). If a complaint is filed with the company's human resources department on any of these allegations, it will be investigated immediately, (Moran, 2008, p. 289). The investigation shall consist of questioning the complainant, alleged perpetrator, coworkers, superiors, and subordinates, (Moran, 2008, p. 89). If a determination is made that a valid complaint had been issued against an employee, that employee will be entitled to a hearing to which he or she may be assisted by outside counsel. If a conclusion is reached that the conduct complained of meets one of the aforementioned criteria, then the employee shall be dismissed forthwith, (Moran, 2008, p. 289). Furthermore, the victim will be afforded counseling services, if needed.

Every effort will be made by the company to aid the victimized employee in overcoming the emotional trauma of the unfortunate ordeal, (Moran, 2008, p. 289). Finally, the company will sponsor in-house workshops explaining this policy on sexual harassment, warning employees against engaging in it, and encouraging those affected by sexual harassment to come forward with the details of their encounter with it in order for the company to investigate and resolve the dilemma and service the needs of the victimized employee, (Moran, 2008, p. 289).

The Americans with Disabilities Act requires employers having 1 5 or more employees to refrain from administrating against any individual who has an impairment that limits major life activities, such as impairment to sight, speech, hearing, walking, and learning, (Moran, 2008, p. 389). Also included are people with cancer, heart conditions, AIDS, and disfigurement, as well as people recovering from substance abuse. The forerunner of the DAD was the Rehabilitation Act of 1 973. It prohibited disability discrimination in federal employment and with federal contractors.

The percentage of disabled workers who are unemployed is much greater than that of the general population, (Moran, 2008, p. 08). Public access and specific Job accommodations have gone a long way to aid the gainful employment of many of the disabled. Encouraging a change in the mind-set of employers remains a formidable task. Many employers view disabled applicants as inferior to others. They represent an additional worry employers do not need. However, with reasonable accommodation, many disabled employees have proven to work as effectively as other workers because their disability has been alleviated, (Moran, 2008, p. 08). They are operating on a level playing surface with the rest of the work population. Collective bargaining is the negotiation process undertaken by a union on behalf of a contract after the resolution of labor issues," (Moran, 2008, p. 420). The contract, known as the collective bargaining agreement, is binding on all union members. The advantage of collective bargaining is that the union has greater bargaining strength than an individual employee would have in attempting to negotiate the best possible deal, (Moran, 2008, p. 420).

The Occupational Safety and Health Act of 1 970 (OSHA) was designed to set forth a standard that would provide for the safety and health of employees while on the Job, (Moran, 2008, p. 450). Employers are required to provide a place of employment free from occupational hazards. Employees are required to follow rules and regulations established to promote their safety and to use equipment designed to ensure their safety, (Moran, 2008, p. 450). Permanent standards are the standards originally introduced when OSHA was created as well as standards promulgated thereafter, (Moran, 2008, p. 452).

The latter are referred to as National Consensus Standards. When OSHA develops a new standard, it is published in the Federal Register, (Moran, 2008, p. 452). The public, especially employees, has 30 days to request a hearing. If requested, notice of a public hearing will be made. After the hearing, OSHA must publish the standard incorporating the changes, if any, and the date of its commencement, within 60 days. The Secretary of Labor must explain the need for the new standard, or else it will be null and void. He or she may delay the date of its commencement. In one case, a delay of 4 years was imposed.

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