Legal Issues in Employee Selection - Objectives: 1. Understand the legal process involving employment law 2. Know what classes of people are protected by federal law 3. Be able to determine the legality of an employment practice 4. Understand the concept of adverse impact 5. Understand affirmative action Equal Employment Opportunity Commission (EEOC) is a branch of department of labor charged to investigate and prosecute complaints of employment discrimination Grievance System is a process in which an employee files a complaint with the organization and a person or committee within the organization makes a decision regarding the complaint Department of Labor and Employment – Bureau of Local Employment - is a ‘bureau’ under the Department of Labor and Employment which aims to improve the local labor and employment situation in the Philippines. - Its mission is to promote full employment by facilitating access of Filipino jobseekers to local employment opportunities through policy researches, standards setting, strategy development, labor market analysis and provision of technical assistance to regional implementers in support of employment service operations. Civil Service Commission - The Civil Service Commission of the Philippines (Filipino: Komisyon ng Serbisyo Sibil, abbreviated as CSC) is one of the three Constitutional Commissions of the Philippines with responsibility over the civil service. It is tasked with overseeing the integrity of government actions and processes. LEGAL PROCESS - Mediation is a method of resolving conflicts in which a neutral third party is asked to help the two parties reach an agreement - Arbitration resolves conflict in which a neutral third party is asked to choose which side is correct - Binding Arbitration will ask the third party to choose which side is correct but in which either party is allowed may appeal the decision Non-Binding Arbitration will ask the third party to choose which side is correct but in which either party may appeal the decision DETERMINING WHETHER EMPLOYMENT DECISION IS LEGAL THE Case Law is the interpretation of a law by a court through a verdict in a trial, setting precedent for subsequent court decision Protected Class is any group of people for whom protective legislation has been passed Age Discrimination in Employment Act (ADEA) forbids discrimination against an individual who is over the age of 40 Vocational Rehabilitation Act of 1973 prohibits discrimination against the physically and mentally handicapped Pregnancy Discrimination Act 1978 protects the rights of pregnant women Republic Act 10354: The Responsible Parenthood and Reproductive Health Act of 2012 - The State recognizes and guarantees the human rights of all persons including their right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood. - Under Section 23 of Republic Act 10354, otherwise known as the Reproductive Health Act of 2012, pregnancy or the number of children shall not be a ground for non-hiring or termination from employment. Violation of which is punishable by imprisonment ranging from one (1) month to six (6) months or a fine of Ten thousand pesos (P10,000.00) to One hundred thousand pesos (P100,000.00), or both such fine and imprisonment. Race on the basis of the Civil Rights Acts of 1866, 1964 and 1991, as well as the Fifth and Fourteenth Amendments to the U.S. Constitution, it is illegal to discriminate against a person. Color as protected by the Civil Rights Acts is color. Though commonly used as a synonym for race, the reference to color protects individuals against discrimination based specifically on variations in skin color. Sex on The Civil Rights Acts, as well as the Equal Pay Act of 1963, prohibit discrimination based on sex. Bona Fide Occupational Qualification (BFOQ) is a selection requirement that is necessary for the performance of job-related duties and for which there is no substitute Adverse Impact is an employment practice that results in members of a protected class being negatively affected at a higher rate than members of the majority class. Adverse impact is usually determined by the four-fifth rule Four and Fifth Rule is when the selection ratio for one group is less than 80% of the selection ratio for another group adverse impact is said to exist National Origin is protected under the Civil Rights Acts. Note that Hispanics are protected under national origin, not race. Claims of discrimination based on national origin have increased greatly over the past few years. One of the most common complaints is about “English only” or “understandable English” speaking requirements. Religion it is illegal to use an individual’s religion as a factor in an employment decision unless the nature of the job is religious. The Civil Rights Acts also require organizations to make accommodations for religious beliefs unless to do so would be an undue hardship REPUBLIC ACT No. 10911 (Anti-Age Discrimination in Employee Act) - An Act Prohibiting Discrimination Against Any Individual in Employment on Account of Age and Providing Penalties Therefor Disability Discrimination against people with disabilities by the federal government is forbidden by the Vocational Rehabilitation Act of 1973, and discrimination against the disabled by any other employer with 15 or more employees is forbidden by the Americans with Disabilities Act (ADA). Republic Act No. 10524 (Otherwise Known as the Magna Carta for Persons with Disability) – An Act Expanding the Positions Reserved for Persons with Disability, amending for the Purpose Republic Act No. 7277, as Amended Job Related is the extent to which a test or measure taps knowledge, skill, ability, behavior or other characteristic needed to successfully perform job HARASSMENT is not an issue limited to the United States. Though the United States has taken the lead in preventing and punishing harassment, Canada, the United Kingdom, Australia, New Zealand, Ireland, and the European Union also have laws prohibiting sexual harassment (Gutman, 2005). Types of Harassment Quid Pro Quo is a type of sexual harassment in which the granting sexual favors is tied to an employment decision. Hostile Environment is characterized by a pattern of unwanted conduct related to gender that interferes with an individual’s work performance (display of demeaning posters, signs or cartoons) Organizational Liability for Sexual Harassment Preventing Sexual Harassment To avoid liability, the organization must have a well-conceived policy regarding sexual harassment, must have communicated that policy to its employees Preventing Sexually Harassing Behavior If an employee complains of sexual harassment, it is essential that the organization investigate the complaint quickly and then promptly take any necessary action to rectify the situation and punish the offender. To reduce an organization’s liability for sexual harassment Correcting Sexually Harassing Behavior 5. Both the accused and the accuser must be given due process, and care must be taken to avoid an initial assumption of guilt. 6. The results of the investigation must be communicated in writing to both parties. 7. The severity of the punishment (if any) must match the severity of the violation. RA 7877 (Anti-Sexual Harassment Act of 1995) – An act declaring sexual harassment unlawful in the employment, education and training environment and for other purposes AFFIRMATIVE ACTION Affirmative Action Strategies Monitoring Statistics If an employee complains of sexual harassment, it is essential that the organization investigate the complaint quickly and then promptly take any necessary action to rectify the situation and punish the offender. To reduce an organization’s liability for sexual harassment, Jacobs and Kearns (2001) advise the following: 1. All complaints, no matter how trivial or farfetched they appear, must be investigated. 2. The organization’s policy must encourage victims to come forward and afford them multiple channels or sources through which to file their complaint. 3. Complaints must be kept confidential to protect both the accused and the accuser. Information from the investigation should be kept in a file separate from the employee’s personnel file. 4. Action must be taken to protect the accuser during the time the complaint is being investigated. Actions might include physically separating the two parties or limiting the amount of contact between them. Intentional Applicants Hiring and Promotion Organizations must write affirmative action plans in which they monitor adverse impact as well as compare the percentages of women and minorities in the organization with the percentages of women and minorities in the qualified workforce. Recruitment of Minority Efforts might include advertising in magazines and newspapers with a minority readership, recruiting at predominantly minority or female universities, visiting minority communities, or paying current employees a bonus for recruiting a member of a protected class. Identification and Removal of Employment Practices against Minority Applicants and Employees A third affirmative action strategy is to identify and remove practices that might discourage minority applicants from applying to an organization or minority employees from being promoted within an organization. Such practices might involve company policy, supervisor attitudes, or the way in which an organization is decorated Preferential Hiring and Promotion of Minorities This is certainly the most controversial and misunderstood of the affirmative action strategies. Under this strategy, minority applicants will be given preference over an equally qualified nonminority applicant. It is important to note that in no way does affirmative action require an employer to hire an unqualified minority over a qualified non-minority Involuntary : Government Regulation These mandatory affirmative action plans typically involve analyses of all major job categories and indicate which categories have under representations of the protected classes, as well as goals and plans for overcoming such under representations. Involuntary: Court Order When a court finds a public agency such as a police or fire department guilty of not hiring or promoting enough members of a protected class, it can order the agency to begin an affirmative action program. Voluntary: Consent Decree If a discrimination complaint has been filed with a court, a public agency can “voluntarily” agree to an affirmative action plan rather than have a plan forced on it by the court. With a consent decree, the agency agrees that it has not hired or promoted enough members of a protected class and is willing to make changes. Voluntary: Desire to Be a Good Citizen Rather than wait for a discrimination complaint, some organizations develop affirmative action programs out of a desire to be good citizens. That is, they want to voluntarily ensure that their employment practices are fair to all groups of people. Consequences - Affirmative action programs are an important tool in ensuring equal opportunity, they can result in some negative consequences for people hired or promoted as the result of affirmative action (Kravitz et al., 1997). - The Heilman and Kravitz studies suggest that affirmative action programs can have negative consequences for their recipients. Affirmative action programs may also have negative consequences for an organization. Silva and Jacobs (1993) found that hiring minorities above their level of representation in the applicant pool (affirmative action) resulted in decreased organizational performance. PRIVACY ISSUES As discussed previously in the chapter, an employment practice is illegal if it results in adverse impact and is not job related. An employment practice can also be illegal if it unnecessarily violates an individual’s right to privacy. 1. Drug Testing 2. Office and Locker Searches 3. Psychological Test 4. Electronic Surveillance Data Privacy Act of 2012 (RA 10173) - It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected. OTHER CONSIDERATION PHILIPPINE SETTING IN THE DO no. 102-10 (Guidelines for the Implementation of HIV and AIDS prevention and Control in the Workplace Program) -The Law provides that discrimination of people living with HIV and AIDS during preemployment to post employment based on actual, perceived or suspected HIV status is prohibited. This includes hiring, promotion, assignment or termination from work. DO no. 05 s. 2010 (Workplace Policy and Program oh Hepatitis B) – information and education programme should be implemented that will raise awareness and reduce stigma and discrimination associated with Hepatitis B. DO no. 53-03 (Guidelines for The Implementation of a Drug-Free Workplace Policies And Programs For The Private Sector) - It shall be mandatory for all private establishments employing ten (10) or more workers to formulate and implement drug abuse prevention and control programs in the workplace, including the formulation and adoption of company policies against dangerous drug use. Establishments with less than ten (10) workers are also encouraged to formulate and adopt drug-free policies and programs in the workplace. DO no. 208 (Guidelines for the Implementation of Mental Health Workplace Policies and Programs for the Private Sector) – An Act strengthening Compliance with occupational Safety and Health Standards and Providing Penalties for Violations Thereof. It is mandatory for all workplace and establishments to formulate a mental health workplace policy and program, which shall include raising awareness, prevent stigma and discrimination, provide support to workers who at risk and/or with mental health condition and facilitate access to medical health services. Labor Advisory No. 17 “highly encourages” workfrom-home and telecommuting for employees in businesses and industries already allowed to resume operations under the modified enhanced community quarantine or general community quarantine. These alternative work schemes include: 1. Transfer of employee to another branch; 2. Assignment of employee to another function or position, in the same or another branch or outlet; 3. Reduction of normal workdays or workhours; 4. Job rotations; 5. Partial closure of an establishment while some department or unit is continued; and 6. Other schemes that is necessary or peculiar for the survival of a specific business or establishment.
