Chapter 4
Legal Construction of
the Employment
Environment
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reproduction or distribution without the prior written consent of
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Learning Objectives (1)
 Explain why employers might be concerned
about ensuring protections for equal opportunity
during recruitment, in particular
 Describe how the recruitment environment is
regulated, by both statutes and common law
 Describe the employer’s opportunities during the
information-gathering process to learn as much
as possible about hiring the most effective
workers
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Learning Objectives (2)
 Explain how the employer might be liable under
the theory of negligent hiring
 Identify the circumstances of employee’s
compelled self-publication, and defamation risk
 Explain the difference between testing for
eligibility and testing for ineligibility, and provide
examples of each
 Identify key benefits of performance appraisals,
and potential pitfalls to avoid
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Evolution of the Employment
Relationship
 Recruitment of appropriate candidates
 Hiring
 Testing
 Performance appraisals
 Termination
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Recruitment (1)
 First step in the evolution of the employment
relationship
 Federal statutory regulation of recruitment
 Title VII of the Civil Rights Act of 1964
 Age Discrimination in Employment Act of 1967
 Immigration Reform and Control Act of 1986
 Vocational Rehabilitation Act of 1973 and the
Americans with Disabilities Act of 1990
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Recruitment (2)
 State employment law regulations vary by
statute and common law
 Common law recruitment violations
 Fraud
 Misrepresentation
 Material facts
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Application of Regulation to
Recruitment Practices
 Advertisements
 Scenario 1
 Word-of-mouth recruiting
 Promoting from within
 Venue recruiting
 Walk-in applicants
 Neutral solicitation
 Case: EEOC v. Consolidated Service System
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Information Gathering and Selection
 The application phase: manage info for need
 The interview
 Team make-up , pre-training, selection criteria sought
 Background or reference checks
 Resume fraud rampant
 Background checks: manage information of-interest
 References: manage rules for giving and getting
 Negligent hiring risk(next slide)
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Exhibit 4.60 – Grounds for Negligent
Hiring Claim
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Exhibit 4.9 – Content on Candidates’ Web
Sites Leading Employers Not to Hire
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Employer Liability and Protection
 Reference checks – potential liability for
providing references
 Compelled self-publication: Occurs when an exemployee is forced to repeat the reason for her or his
termination
 “After-acquired evidence” in defense in wrongful
termination suits
 Documentation of failure to hire
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Exhibit 4.13 – Balancing the Interests in
the Testing Debate
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Testing in the Employment
Environment
 Pre-employment testing
 Tests to find the best individual for a position
(eligibility)
 Tests to ensure that the individual is free from
problems that would prevent her or him from
performing the position’s functions (ineligibility)
 Individual privacy
 Testing is illegal when the invasion of privacy is
“substantially and highly offensive to the reasonable
person”
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Legality of Eligibility Testing
 Eligibility testing: Tests conducted to ensure
capability and qualification of potential employee
 To be legally validated, an employer must show
that the eligibility test is:
 Job-related
 Consistent with business necessity
 Job analysis data: Information about nature of
work and skills required to perform the work
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Legality of Eligibility Testing
 Validation: Evidence that shows that a test
evaluates precisely what it claims to evaluate
 Test validity
 Criterion-related validation
 Content validation
 Construct validation
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Legality of Eligibility Testing
 Integrity and Personality Tests
 Used by 40% of Fortune 100 companies
 Conscientiousness

job performance
 basic intelligence testing is one of the best predictors
of job performance across all jobs
 Physical Ability Tests
 Medical Tests
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Legality of Ineligibility Testing
 Why is testing done?
 Reduce workplace injury or to provide a safer working
environment
 Predict employee performance or deter poor
performance
 Reduce the employer’s financial responsibility to the
worker’s compensation system
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Polygraphs (1)
 Polygraph: A lie-detecting device that measures
biological reactions in individuals when
questioned
 A polygraph measures
 Rate and depth of respiration
 Cardiovascular activity
 Perspiration
 Accuracy rates range from 50 (e.g., random) to
90 percent
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Polygraphs (2)
 Federal Employee Polygraph Protection Act
(EPPA)
 Generally not allowed in employment context, with
(odd) exceptions
 Certain specific workplace investigations
 Sensitive Occupations
 33 states have statutes prohibiting or restricting
the use of polygraphs in making employment
decisions
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Drug and Alcohol Tests
 Drug-Free Workplace Act of 1988
 Only applies to federal employees
 Some private sector firms use Act’s guidelines
 Coverage varies with technology used
 Immunoassay test
 Radio-immunoassay of hair
 Drug-Free Workplace Act of 1998
 Case: Nat’l. Treasury Employees Union v. Von Raab
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Genetic Tests
 Genetic Information Non-Discrimination Act and
state statutory coverages -> restricted use
 Issues
 Employers might discriminate based on the potential
for a debilitating disease
 Employees may not want to know results
 Genetic testing is not perfect
 Genetic irregularities may be considered protected
disabilities under the Americans with Disabilities and
Vocational Rehabilitation Act
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Unique Considerations of HIV/AIDS
Testing
 Why is it inappropriate?
 For justification, test must serve legitimate business
purpose
 Test reports only the subject’s status as of several
weeks or months in the past
 HIV-positive employee may be protected under
 Federal Vocational Rehabilitation Act
 Americans with Disabilities Act (see Chapter 13
coverage)
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Management Considerations: Testing
 A workplace substance abuse program should
incorporate
 A written abuse policy
 A supervisory training program
 An employee education and awareness program
 Access to an employee assistance program
 A drug testing program, where appropriate
 Mandatory, “probable cause,” and/or random testing
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Performance Appraisals, Evaluation,
and Discipline Systems (1)
 Performance appraisal: A periodic assessment
of an employee’s performance
 The purpose of performance appraisals
 identify performance characteristics employer hopes
employee will accentuate
 Discourage performance characteristics not in
keeping with the organization’s objectives
 The potential for discriminatory effect
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Performance Appraisals, Evaluation,
and Discipline Systems (2)
 Realities about performance evaluations
 Monitor for discrimination risk
 No need to lower its standards or qualifications to
accommodate employee’s or applicant’s needs
 Objective measures of performance preferred, tighten
subjective criteria
 Inadequate system can risk defamation, negligence
 Legal challenges found mostly in the areas of
implementation, monitoring and accountability
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Discipline
 “Just cause” disciplinary approach
 How is “just cause” determined?
 Due process
 Adequate evidence
 Appropriateness of penalty
 Documentation (!) (in general and here
specifically)
 Progressive discipline
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Management Tips
 Maintain proper documentation of performance
appraisals
 Train supervisors on non-biased reporting and
evaluations
 Take precautions against inappropriate
disclosures
 Evaluate performance frequently, systematically,
and as stated in the employee manual or other
materials
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