by
Robinson, Franklin, and Wayland
Chapter 1
Impact of Regulation on Human
Resource Practices
Fall 2009

Date Statute
1927 Railway Labor Act
1932 Labor Disputes Act (Norris-LaGuardia Act)
1935 National Labor Relations Act (Wagner Act)
1935 Social Security Act
1938 Fair Labor Standards Act
1947 Labor Management Relations Act (Taft-Hartley Act)
1959 Labor Management Reporting and Disclosure Act
1963 Equal Pay Act
1964 Civil Rights Act (as amended)
1970 Occupational Safety and Health Act (OSHA)

Date Statute
1972 Equal Employment Opportunity Act
1973 Vocational Rehabilitation Act (as amended)
1974 Employee Retirement Income Security Act (ERISA)
1974 Vietnam Era Veteran’s Readjustment Assistance Act.
1976 Age Discrimination in Employment Act (ADEA)
1978 Pregnancy Discrimination Act
1978 Civil Service Reform Act (CSRA 78)
1986 Immigration Reform and Control Act (IRCA)
1986 Consolidated Omnibus Budget Reconciliation Act
(COBRA)
1988 Worker Adjustment and Retraining Notification Act
(WARN)

Date Statute
1988 Drug-Free Workplace Act
1988 Polygraph Protection Act
1990 Americans with Disabilities Act (ADA)
1991 Civil Rights Act (CRA 91)
1993 Family and Medical Leave Act (FMLA)
1996 Health Insurance Portability and Accountability Act
(HIPAA)

Recruiting
Selection/Hiring
Harassment
Performance Appraisal
Promotions Training
Work Assignments Development
Layoffs
Terminations
Worker Safety
Worker Security
Disciplinary Actions Wage and Salary

Year
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
1992
Total Charge Receipts % Change
77,990
80,680
79,591
-10.9
+3.5
-1.3
77,444 -2.7
79,896 +3.2
80,840 +1.2
84,442 +4.5
81,293 -3.7
79,432 -2.3
75,428 -5.0
75,768 +0.5%
72,302 +4.8

1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
Year EEOC FEPA Total % FEPA
Receipts Receipts Receipts
80,680 69,854 150,534 46.4
79,591 65,678 145,269 45.2
77,444 61,708 139,152 44.3
79,896
80,840 58,303 139,143 41.9
84,442 62,774 147,216 42.6
81,293 61,998 143,291 43.3
79,432 57,318 136,750 41.9
75,428 55,928 131,359 42.6
75,768 48,926 124,694 39.2
82,792
95,402

443 U.S.
193, 205 (1979)
42 U.S.C. § 2000e-2 (2000)
29 C.F.R. § 1608.4 (2000)

Abbreviations Law Reporter
U.S.
S.Ct.
F.3d
F.2d
F.Supp.
F.Supp. 2d.
United States Reports
Supreme Court Reporter
Federal Reporter, 3 rd Series
Federal Reporter, 2 nd Series
Federal Supplement
Federal Supplement, 2 nd Series
U.S.C.
Stat.
C.F.R.
United States Code
Statutes at Large
Code of Federal Regulations

443 U.S.
193 , 205 (1979)
Volume
Legal
Reporter
Beginning
Page
Specific page on which information is found
Year of
Decision

Title VII is found at :
42 U.S.C. § 2000e-2 (2000), it can also be cited as:
78 Stat. 255 , and
Pub. L. 88-352, Title VII,
§ 703 , (July 2, 1964)


Statutes (legislative branch)

Laws are like sausages. It's better not to see them being made.
Otto von Bismarck (1815 - 1898)

Regulations (executive branch)

Case Law (judicial branch)

th



Civil Rights Act of 1866 - removed annual labor contracts.
Civil Service Reform Act of 1883 provided protection for civil servants from the spoils system.
Interstate Commerce Act of 1887 – governed transportation to benefit the public interest.

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





Railway Labor Act of 1926
Labor Dispute Act of 1932 (a.k.a., Norris-
LaGuardia Act)
Federal Communications Act of 1934
Securities and Exchange Act of 1934
National Labor Relations Act of 1935 (a.k.a.,
Wagner Act)
Civil Aeronautics Act of 1938
Labor Management Relations Act of 1947
(a.k.a., Taft-Hartley Act)
Labor Management Reporting and Disclosure
Act of 1959 (a.k.a., Landrum-Griffin Act)




Jim Powell (2004). FDR’s Folly
Gene Smiley (2003).
Depression
Rethinking the Great
Amity Schlaes (2007). The Forgotten Man


Creation of Vertical Agencies


Industry Specific.


FCC - Federal Communications Act of
1934
CAB - Civil Aeronautics Act of 1938.

SEC - Securities and Exchange Act of
1934.
Primarily concerned with the competitive health of the specific industry that the agency regulated.



John Kennedy’s
Johnson’s
New Frontier and Lyndon
Great Society .

Equal Pay Act of 1963.
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


Clean Air Act of 1963.
Civil Rights Act of 1964.
E.O. 11246.
Age Discrimination in Employment Act of 1967.
Subsequent administrations.

Occupational Safety and Health Act of 1970.
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

American’s with Disabilities Act of 1990.
Civil Rights Act of 1991.
Family Medical Leave Act of 1993.


Creation of Horizontal Agencies


Across Industries.

EEOC - Civil Rights Act of 1964

EPA – Clean Air Act of 1963

OSHA - Occupational Safety and Health
Act of 1970.
Concerned only with compliance.

America as a Litigious Society



DECADES OF LAWSUIT ABUSE have managed to catch up with even the trial lawyers. After 60 years, the Association of Trial Lawyers of America
(ATLA) has realized its name and reputation are anything but spotless.
Their answer: get a new name, the American
Association for Justice . But removing the words
“trial” and “lawyers” from their name won’t erase the harm caused to working families and consumers every day. Frivolous lawsuits eliminate American jobs, destroy small businesses, and add millions each year to the price of everything from medicine and cars to housing—even groceries!
Source: The U.S. Chamber of Commerce and the U.S. Chamber Institute for Legal Reform 1615 H Street, NW, Washington, DC 20062-2000

America as a Litigious Society



A culture obsessed with “rights.”


NAAFA (National Association to Advance Fat
Acceptance).
Gay rights (Gay and Lesbian Alliance Against Defamation and Lambda Legal).
Jackson, Lewis, Schmitzler & Krupman:

57% of firms had at least 1 litigation in past 5 years.
2000, litigation costs in the U.S. were $179
billion (2.2% of GDP).

Source: Tillinghast-Towers Perrin. U.S. Tort Costs 2000 .

America as a Litigious Society


After weeks of mediation with the San Francisco
Human Rights Commission, Jazzercise Inc. (the world's biggest dance-fitness organization) agreed to change company policy.
Jennifer Portnick, a 240-pound San Francisco aerobics instructor rejected by Jazzercise because of her size, has reached an agreement under which the firm will drop its requirement that instructors look fit .

America as a Litigious Society


In 2003, Caesar Barber sued the fast food industry for making him fat. Mr.
Barber, a 5-foot-10-inch, 272-pound maintenance worker, said he had heart attacks in 1996 and 1999.
Specifically named in the suit are his favorite fast food restaurants: KFC,
Wendy’s, Burger King and McDonalds.



Administrative Costs - documentation, record keeping, buying new equipment, filing reports cost could range between
$51.9B to $134.4B per year (Mercatus
Group study, 2001).
Litigation Costs


Court and attorney’s fees average $240,000 per employment trial.
Punitive and compensatory damages under Title
VII may run as high as $300,000 per aggrieved party.

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Opportunity Costs - avoid important decisions to also avoid potential litigation.

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
Retaining less productive employees.
Not disciplining disruptive workers.
Delays in product introduction.
Loss of Corporate Legitimacy



Texaco $176.1M (1997).
Toyota $8B (2001) largest to date.
How society views an organization’s actions.

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
Equal Employment Opportunity
Commission (EEOC)
National Labor Relations Board (NLRB)
Occupational Safety and Health
Administration (OSHA)
The Office of Federal Contract Compliance
Programs (OFCCP)
Office of Labor Management Standards
Wage and Hour Division (WHD)



Agency: Independent
Enforces:






Equal Pay Act of 1963
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act of 1967
§§ 501 & 505 of the Rehabilitation Act of
1973
Title I and Title V of the Americans with
Disabilities Act of 1990
Civil Rights Act of 1991



Stuart J. Ishimaru , Acting Chair [ Bush -
2012 ]
Commissioners:




Constance S. Barker [ Bush - 2011 ]
Christine M. Griffin [ Bush – 2009 ]
Commissioner [ Vacant ]
Commissioner [ Vacant ]



Agency: Department of Labor
Enforces:

Occupational Safety and Health Act



Agency: Department of Labor
Enforces:


E.O. 11246
Revised Order No. 4 (41 C.F.R Part 60-2 )



Agency: Department of Labor
Enforces:

Fair Labor Standards Act

Minimum wage

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Overtime
Child labor

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Davis-Bacon Act
Service Contract Act
Polygraph Protection Act
Family Medical Leave Act

Structure of the Federal Courts
Supreme Court*
Circuit Courts of Appeal
(First through Eleventh Circuits, the District of
Columbia Circuit, and the Federal Circuit)
* writ of certiorari
District Courts
(94 Districts)



Created by the Judiciary Act of 1789, 28 U.S.C. §
1332 et. seq. (2005).
Initially the Supreme Court of six justices, including one Chief Justice and five associate justices.

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
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1807 expanded to 7.
1807 expanded to 9.
1863 expanded to 10.
1866 reduced to 9.
1867 reduced to 8.
1869 expanded to 9.



Nine Justices appointed by the president and approved by the Senate.

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
JOHN G. ROBERTS , 54 (Chief Justice – Bush II)
JOHN PAUL STEVENS , 89 (Ford)
ANTONIN SCALIA , 73 (Reagan)
ANTHONY M.KENNEDY
, 73 (Reagan)
SONIA SOTOMAYOR , 55 (Obama)




CLARENCE THOMAS , 61 (Bush I)
RUTH BADER GINSBURG , 76 (Clinton)
STEPHEN G. BREYER , 73 (Clinton)
SAMUEL A. ALITO , 59 (Bush II)
Decisions apply to the United States and its
Territories.

Circuit Courts of Appeal




There are 13 judicial circuits , each with a court of appeals.
The smallest court is the First Circuit , with six judgeships.
The largest court is the Ninth Circuit , with 28 judgeships.
The most overturned circuit is the Ninth
Circuit .

Circuit Courts of Appeal



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
First : Massachusetts, Maine, New Hampshire,
Rhode Island, and Puerto Rico.
Second : Connecticut, New York, and Vermont.
Third : Delaware, New Jersey, Pennsylvania, and Virgin Islands.
Fourth : Maryland, North Carolina, South
Carolina, Virginia, and West Virginia.
Fifth : Louisiana, Mississippi, and Texas.
Sixth : Kentucky, Michigan, Ohio, and
Tennessee.

Circuit Courts of Appeal



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

Seventh : Illinois, Indiana, and Wisconsin.
Eighth : Arkansas, Iowa, Minnesota, Missouri,
Nebraska, North Dakota, and South Dakota.
Ninth : Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, Washington,
Guam, Northern Mariana Islands.
Tenth : Colorado, Kansas, New Mexico,
Oklahoma, Utah, and Wyoming.
Eleventh : Alabama, Florida, and Georgia.
District of Columbia : District of Columbia.
Federal: Various Federal Courts.

Circuit Courts of Appeal



Decisions only apply to their geographic jurisdiction.
Approximately 44% of all cases appealed by employers are reversed.
Only 6% of cases appealed by
employees are reversed.
Source: Eisenberg, T. and Schwab, S. J. (2001). Double Standard on Appeal .
Cornell University Study.




In most cases, the court of original jurisdiction (the court where the trial of the case begins and where remedies are imposed).
Ninety-four districts through out the U.S. and its territories (District of Columbia,
Guam, and the Northern Mariana Islands).
Decisions only apply within the geographic confines of their districts.



Congressional Intent - the court must view the issue in terms of what Congress was trying to accomplish at the time the statute was enacted.
Precedent - the legal principle of stare decisis which means to adhere to previously decided cases.



Judicial Activism - views the judicial branch of government as a means to achieve social justice.


Often at the expense of precedent.
Views the Constitution as a “living document.”
Judicial Restraint - views the judicial branch of government as restricting its activities to enforcing existing laws, not creating new ones.

Views the Constitution as a constraining document.

Unlawful employment practices
(a) It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to 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 ;
Source: 42 U.S.C § 20003-2(a)(1) (2000)






1600 --EMPLOYEE RESPONSIBILITIES AND CONDUCT
1601 --PROCEDURAL REGULATIONS
1602 --RECORDKEEPING AND REPORTING
REQUIREMENTS UNDER TITLE VII AND THE ADA
1603 --PROCEDURES FOR PREVIOUSLY EXEMPT STATE
AND LOCAL GOVERNMENT EMPLOYEE COMPLAINTS OF
EMPLOYMENTDISCRIMINATION UNDER SECTION 321
OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
1604 --GUIDELINES ON DISCRIMINATION BECAUSE OF
SEX

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




1605 --GUIDELINES ON DISCRIMINATION BECAUSE OF
RELIGION
1606 --GUIDELINES ON DISCRIMINATION BECAUSE OF
NATIONAL ORIGIN
1607 --UNIFORM GUIDELINES ON EMPLOYEE
SELECTION PROCEDURES (1978)
1608 --AFFIRMATIVE ACTION APPROPRIATE UNDER
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED
1610 --AVAILABILITY OF RECORDS
1611 --PRIVACY ACT REGULATIONS






1612 --GOVERNMENT IN THE SUNSHINE ACT
REGULATIONS
PART 1613. EQUAL EMPLOYMENT
OPPORTUNITY IN THE FEDERAL GOVERNMENT.
1650 --DEBT COLLECTION
1690 --PROCEDURES ON INTERAGENCY
COORDINATION OF EQUAL EMPLOYMENT
OPPORTUNITY ISSUANCES
1691 --PROCEDURES FOR COMPLAINTS OF
EMPLOYMENT DISCRIMINATION FILED
AGAINST RECIPIENTS OF FEDERALFINANCIAL
ASSISTANCE


By Fall 2008, there were 395 Supreme Court decisions referencing some aspect of Title
VII.
Source: LEXIS-NEXIS, a division of Reed Elsevier Inc.
®
Some creations of the Courts:
Legal proofs for disparate treatment
Disparate Impact
Permissible affirmative action
Racial harassment
Sexual harassment
Testers




Monitor the legal environment
(external) for changes in compliance requirements.
Update existing personnel policies when necessitated by changes in the legal environment.
Continually audit the current employment practices (internal) to ensure compliance.



Provide training and information to management and supervisory employees.
Provide training and information to nonsupervisory employees.