Business Finance - Management Chapter 4 Assignment Dropbox Assignment

Question #6, in the Chapter end questions is the case of Pingatore v. Union Pacific Railroad Company, 530 S.W.3d 372, Ark. App. 459 (2017) is a good discussion regarding drug testing and the manner in which it is conducted in the workplace. Answer the questions posed in the Chapter 4 rubric for this assignment.

Preview Rubric Chapter 4 Rubric-Legal Construction of the Employment Environment

Management 5070-W4, Fall II 20… MP Ma!hew Pankey

Content Tasks Communica"on Resources

Chapter 4 Rubric-Legal Construction of the Employment Environment Course: Management 5070-W4, Fall II 2023 – Ft Campb

Total

Overall Score

Criteria Possible Points Criterion Score

State the name and citation of the case / 0.5

Briefly state what the court held in this drug testing

case, and why the court held as it did. (minimum 200

words)

/ 3

Do you think this manner of drug testing in the

workplace was fair to the employees? Why or why not?

(minimum 200 words)

/ 3

Suggest other ways in which drug testing in the

workplace can be conducted that is less offensive to

employees (minimum 100 words)

/ 3

Answer in 14 point Ariel font, double spaced, with no

spelling or grammatical errors. The answer must be

long enough to clearly discuss the subject matter and

answer the question.

/ 0.5

0.5 points

3 points

0.5 points

Level 2 0 points minimum

10/27/23, 11:33 AM Page 1 of 1

Chapter 4 Legal Construction of the Employment

Environment

4-2

Learning Objectives 1

• Explain why employers should 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.

• Explain how the employer might be liable under the theory of negligent hiring.

4-3

Learning Objectives 2

• Identify the circumstances under which an employer may be responsible for an employee’s compelled self- publication, thus liable for defamation.

• Explain the difference between testing for eligibility and testing for ineligibility, and provide examples of each.

• Identify the key benefits of performance appraisal structures, as well as their areas of potential pitfalls.

4-4

Evolution of the Employment Relationship

Recruitment, management of appropriate candidates through:

• Hiring.

• Testing.

• Performance appraisals.

• Discipline

4-5

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.

4-6

Recruitment 2

Many state employment laws aim to expand federal statutes or closely mirror Title VII provisions.

Common law recruitment violations.

• Fraud.

• Misrepresentation.

• Material facts.

4-7

Application of Regulation to Recruitment

Practices Advertisements.

• Scenario 1.

Word-of-mouth recruiting.

Promoting from within.

Venue recruiting.

Walk-in applicants.

Neutral solicitation.

Note: use of Artificial Intelligence screening aids does not

insulate employer from discrimination risk.

4-8

Information Gathering and Selection 1 • The Application phase: Application form is source of

information for screening-out applicants based on job requirements.

• Monitor questions for relevance, current need-to-know, discriminatory potential (“Maiden” name)

• EEOC pandemic-related factors

• Recognize/correct for unconscious bias (even names)

• Understand state law variations

• The interview.

• Training critical, standardization of inquiries and evaluation desirable.

4-9

Information Gathering and Selection 2

Background or reference checks.

• Misrepresentation of academic credentials and work experience on résumés is rampant.

• Background checks: Get needed permissions, verify candidate information from Application and interview.

• References: Ask those references to give a name of someone else who has worked alongside the candidate as a peer.

• Potential referrer liability → trend away from useful information source

• Recognize Negligent hiring risk.

• Note potential impacts and coverages of local, state ‘Ban-the- Box’ laws

4-10

Grounds for Negligent Hiring Claim

4-11

Employer Liability and Protection

Reference checks – Employers may be held liable for negligent misrepresentation based on misleading statements made in employment references.

• Compelled self-publication: Occurs when an ex-employee is forced to repeat the reason for her or his termination.

• Gives the ex-employee the basis for a claim for defamation.

“After-acquired evidence” used in defense of wrongful termination suits.

• Documentation of failure to hire useful, avoids presumption of illegality, provides self-audit opportunity.

• Communication of reason(s) to applicants dubious.

4-12

Exhibit 4.11 – Balancing the Interests in the

Testing Debate

4-13

Testing in the Employment Environment

Pre-employment testing.

• Eligibility Tests to find the best individual for a position.

• Ineligibility Tests to ensure that the individual is free from problems that would prevent her or him from performing the position’s functions.

Individual privacy rights.

• Courts do a balancing test to determine the legality of ineligibility testing to protect individual employee rights.

4-14

Legality of Eligibility Testing 1

Eligibility testing: Tests conducted to ensure the capability and qualification of a 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 the knowledge, skills, and abilities required to perform the work.

4-15

Legality of Eligibility Testing 2

Validation: Evidence that shows that a test evaluates what it says it evaluates.

Strategies to validate tests.

• Criterion-related validation.

• Content validation.

• Construct validity.

4-16

Legality of Eligibility Testing 3

Integrity and Personality Tests.

• Psychological tests are used by 40% of Fortune 100 companies.

• Attention-to-detail has a strong correlation to on-the-job behavior.

• Integrity, personality testing are trending. Quality varies widely, as do usefulness and defensibility of use.

Physical Ability Tests, keyed to job description.

Medical Tests, general and specific to job

4-17

Legality of Ineligibility Testing 1

Portions of state constitutions, state statutes, and local laws establish private-sector requirements for workplace testing.

Drug and Alcohol Tests.

• Economic and human costs of substance abuse in the workplace enormous and affect productivity, injuries, turnover, etc.

• 70% of big companies use drug tests on more than 40% of jobs

• Costs vary from $30 – 200/test, privacy concerns, changing attitudes

• Cost/benefit analysis unclear

4-18

Legality of Ineligibility Testing 2

Federal and state laws vary widely as to underlying legality, and drug-testing requirements

• Successful employer plans incorporate:

(1) a written drug policy that has been drafted after input from employees,

(2) a supervisory training program,

(3) an employee education and awareness program

(4) access to an employee assistance program, and

(5) a drug-testing program, where appropriate.

Case: National Treasury Employees Union v. Von Raab.

4-19

Legality of Ineligibility Testing 3

• Drug Testing and “Legal” Marijuana Use

• Laws in transition as societal norms on marijuana evolve

• 39 states allow medicinal uses, growing number include recreational uses.

• States vary as to continuing viability of testing and consequences. employer punishment.

• Americans with Disabilities Act implications

• Re medicinal uses, drug may be considered treatment of qualifying disability; its continuing use may qualify as a reasonable accommodation.

• Case: Nofsinger v. SSC Niantic Operating Co., LLC

4-20

Polygraphs 1

Polygraph: ‘Lie-detecting’ device that measures biological reactions in individuals when questioned. • Rate and depth of respiration, Cardiovascular activity, Perspiration.

• Accuracy rates range 50 to 90 percent. (flipping a coin = 50%).

• Per Employee Polygraph Protection Act, employers cannot:

• Require or cause any employee to take any lie detector test

• Use, accept, refer to, or inquire about the results of any lie detector test of any job applicant or current employee.

• Discharge, discipline, etc. any prospective or current employee who refuses to take or submit to a lie detector test or who fails such a test.

• With some employer exemptions and exceptions (see Exhibit 4.15)

• 27 states concur.

4-21

Genetic Tests 1

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA)

• Prohibits the use of genetic information in making employment decisions.

• Restricts employers from requesting, requiring, or purchasing genetic information.

• Strictly limits the disclosure of genetic information.

4-22

Genetic Tests 2

GINA:

• Does not apply to employers who have fewer than 15 employers.

• Does not cover people in the military.

• However, 38 states concur with ban, by statute.

Genetic irregularities may be considered protected disabilities under the Americans with Disabilities and Vocational Rehabilitation Act

4-23

Unique Considerations of HIV/AIDS Testing

Individualized assessment required.

Per ADA, pre-employment inquiry, testing limitation

• Only if positive HIV status poses Direct Threat (see chapter 13)

• Inquiry, test made post-offer

• Same inquiry, test made of/on all applicants in same job category

Note: EEOC regs use phlebotomist example as not meeting Direct threat standard for exclusion from consideration

4-24

Management Considerations: Testing

Three possible corporate approaches for testing employees for ineligibility.

• Employer may establish mandatory testing – Testing for drug or alcohol use or some other form of ineligibility.

• Employer may implement probable cause testing, where an employer tests employees only if there is suspicion of ineligibility.

• Some employers may implement random testing.

Strategic decision considering cost/benefit, corporate culture and local laws that may restrict use. Regardless of choice, policy must be clear and clearly communicated, evenly applied and quality assured.

4-25

Performance Appraisals, Evaluation, and

Discipline Systems 1 Performance appraisal (PAs): Periodic assessment of an employee’s performance – essence of management

The purpose of performance appraisals.

• Identify performance characteristics employer hopes employee will accentuate.

• Identify opportunities for improvement via training, attention

• Discourage performance characteristics not in keeping with the organization’s objectives.

Potential for discriminatory effect depends on the manner in which the appraisal is conducted.

4-26

Performance Appraisals, Evaluation, and

Discipline Systems 2

Realities about performance evaluations.

• Employers might be liable for giving a negative reference even when based on valid PA. (Note general cautions re references)

• Employers need not lower standards or qualifications to accommodate employee’s or applicant’s needs.

• Performance appraisal systems should maximize reliance on objective measures.

• Performance incentive systems recognize outstanding performance and leadership.

• Legal challenges are found mostly in the areas of implementation, monitoring, and accountability.

4-27

Legal Implications of PA Systems Disparate Impact.

• Four-fifths rule: Minority group must perform at least 80 percent (four-fifths) as well as the majority group under a screening device or the test is shown to have a disparate impact on the minority group.

• Subject to Business Justification defense (see Chapter 2).

Disparate Treatment (per McDonnell Douglas framework)

Case: Carabello-Carabello v. Corr. Admin.

Scenario 3

Defamation

PAs Considerations under ADA: uniform standards, but ‘essential functions’ and ‘reasonable accommodation’ (Chap 13)

4-28

Discipline 1

Employment at-will, but “Just cause” disciplinary approach bolsters any needed defenses v. discrimination claims

How is “just cause” determined?

• Due process.

• Adequate evidence.

• Appropriateness of penalty/progressive discipline .

Documentation(!) assures employees of adequate feedback and helps avoid lawsuits.

4-29

Discipline 2

4-30

Management Tips

• Maintain proper documentation of performance appraisals.

• Train supervisors on nonbiased reporting and evaluations.

• Take precautions against inappropriate disclosures.

• Evaluate performance frequently, systematically, and as stated in the employee manual or other materials.

Slide 1: Chapter 4 Legal Construction of the Employment Environment
Slide 2: Learning Objectives 1
Slide 3: Learning Objectives 2
Slide 4: Evolution of the Employment Relationship
Slide 5: Recruitment 1
Slide 6: Recruitment 2
Slide 7: Application of Regulation to Recruitment Practices
Slide 8: Information Gathering and Selection 1
Slide 9: Information Gathering and Selection 2
Slide 10: Grounds for Negligent Hiring Claim
Slide 11: Employer Liability and Protection
Slide 12: Exhibit 4.11 – Balancing the Interests in the Testing Debate
Slide 13: Testing in the Employment Environment
Slide 14: Legality of Eligibility Testing 1
Slide 15: Legality of Eligibility Testing 2
Slide 16: Legality of Eligibility Testing 3
Slide 17: Legality of Ineligibility Testing 1
Slide 18: Legality of Ineligibility Testing 2
Slide 19: Legality of Ineligibility Testing 3
Slide 20: Polygraphs 1
Slide 21: Genetic Tests 1
Slide 22: Genetic Tests 2
Slide 23: Unique Considerations of H I V/A I D S Testing
Slide 24: Management Considerations: Testing
Slide 25: Performance Appraisals, Evaluation, and Discipline Systems 1
Slide 26: Performance Appraisals, Evaluation, and Discipline Systems 2
Slide 27: Legal Implications of PA Systems
Slide 28: Discipline 1
Slide 29: Discipline 2
Slide 30: Management Tips

Business Finance – Management Chapter 4 Assignment Dropbox Assignment

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