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i will give source material, case study document and the requirements bottom of my questions human_resource_management_strategic_staffing_4481.docx ppt_ch03.ppt ppt_ch04.ppt Unformatted Attachment Preview Human Resource Management Strategic Staffing 4481 Case 1 Study - Personally Yours Negligent Hiring/Retention This case explores the legal responsibilities an employer has to conduct background searches and to dismiss employees who pose a potential danger to co-workers and/or clients. Three roles that will be involved: Human Resource Supervisor (Gary Garcia), Branch Manager (Violet Jennings), and Human Resource Manager (Alyssa Williams). Scenario: Human resource supervisor Gary Garcia leaves a meeting at the local SHRM chapter with some great ideas about how Personally Yours could improve their HR operations. Overall, things are running pretty efficiently; Personally Yours is a quickly-growing medium-sized organization, though, and in many ways it still operates like the small, family-owned and -operated business it was just a few years ago. For example, existing hiring processes are standardized at headquarters and at the branch offices. Each job applicant completes a standardized application, submits a résumé (if appropriate for the position), does pre-employment testing, and undergoes a background check (which includes contacting references and former employers and conducting a criminal background check). However, this was not the case when the company was first started, and many longtime employees have never undergone a background check. This is extremely troubling to Garcia, in light of the fact that their employees work in clients’ homes and have contact with vulnerable individuals (e.g., children, elderly, infirm). Activity: This is a two-part scenario. Part 1 – You are to determine if background checks on all employees are necessary. In order to do this, you should research Background Checks and what is required from those individuals who have contact with the elderly, children and the infirmed . You are to write a protocol to conduct them (e.g., which employees, how thorough). Part 2 – It has come to Jennings’ attention that one of her longtime employees, Jackson Tibbits, a handyman, is on the Florida Sexual Offender list. After doing more research, she learns that 17 years ago, when Tibbits was 24, he was convicted of having unlawful sexual contact with a 15-year-old female. As a registered sexual offender, Tibbits cannot live within 1,000 yards of a school and must register with the state anytime he moves. Also, he is prohibited by law from holding positions such as schoolteacher and health care professional. You must decide Personally Yours should terminate Tibbits based on this newly discovered information. Once you have made a decision, you are to write a justification for your answer. © 2009 Society for Human Resource Management. Angela T. Hall, Ph.D., J.D., SPHR 5 Case 2 study COPYRIGHT © 2015 PEARSON EDUCATION, INC. 1-1 Chapter 3 – The Legal Context COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-2 Learning Objectives After studying this chapter, you should be able to: ▪ Explain why complying with staffing laws can be strategic. ▪ Discuss different types of employment relationships. ▪ Describe different types of staffing-related lawsuits. ▪ Discuss the role affirmative action and equal employment opportunity play when in a firm’s staffing process. ▪ Describe various barriers to legally defensible staffing. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-3 How Can Legal Compliance Be Strategic? ▪Avoid the expense of lawsuits ▪Avoid the negative public relations that comes with litigation ▪Allows companies to capitalize on the strengths of diversity and perform better because they focus more on performance and merit ▪Be better able to hire quality people from all segments of the labor force COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-4 Why Do Employment Laws Exist? ▪Because the employer typically has disproportionate power in the employment relationship ▪Help to promote fairness and consistent treatment among different employees by prohibiting unfair discrimination in employment and providing equal employment opportunity for everyone COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-5 Complying With Employment Laws ▪Enhances hiring quality ▪Enhances the firm’s reputation and image as an employer ▪Promotes fairness perceptions among job candidates ▪Reduces spillover effects (for example, rejected applicants not becoming customers or discouraging others from applying for jobs) ▪Reinforces an ethical culture ▪Enhances organizational performance by ensuring that people are hired or not hired based on their qualifications, not biases ▪Promotes diversity, which can enhance an organization’s ability to appeal to a broader customer base COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-6 Types of Employment Relationships Employee: someone hired by another person or business for a wage or fixed payment in exchange for personal services, and who does not provide the services as part of an independent business Independent contractor: performs services wherein the employer controls or directs only the result of the work Contingent workers: any job in which an individual does not have a contract for long-term employment ▪ Temporary workers ▪ Leased workers ▪ Part-time and seasonal workers ▪ Unionized workers (e.g., hiring electricians for a project from a union hall) ▪ Outsourced work COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-7 Employment at Will ▪Definition: either party can terminate the employment relationship at any time, for just cause, no cause, or any cause that is not illegal, with no liability as long as there is no contract for a definite term of employment ▪Following formal discipline and termination procedures whenever possible is still advised to help avoid discrimination and wrongful termination claims ▪Best used as a legal defense to keep the organization from being forced to follow its own policies inflexibly ▪Signing an employment application or to acknowledge receipt of an employee handbook produces a written record that the policy has been read and understood COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-8 Exceptions to Employment at Will ▪Retaliatory discharge (prohibited by EEO laws) ▪Implied employment contract (when an employer’s personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a procedural process for firing) ▪Implied covenant of good faith and fair dealing (e.g., firing an employee to prevent their vesting in the pension plan next month) ▪Federal or state discrimination protection supersedes employment at will COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-9 Labor Unions ▪Legally representing workers, organizing employees and negotiating the terms and conditions of union members’ employment ▪The conditions of employment are contained in a contract called a collective bargaining agreement or a collective employment agreement COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-10 Four Union Models ▪A closed shop exclusively employs people who are already union members. An example is a compulsory hiring hall, where the employer must recruit directly from the union. ▪A union shop employs both union and non-union workers, but new employees must join the union within a specified time limit. ▪An agency shop requires non-union workers to pay a fee to the union for its services in negotiating their contract. ▪An open shop does not discriminate based on union membership in employing or keeping workers. Some workers benefit from a union or the collective bargaining process despite not contributing to the union. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-11 Laws and Regulations COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-12 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-13 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-14 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-15 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 1-16 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 1-17 COPYRIGHT © 2015 PEARSON EDUCATION, INC. 1-18 Improper Interview Questions ▪How many children do you have? ▪What is your native language? ▪What clubs or social organizations do you belong to? ▪Are you planning any medical procedures? COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-19 EEO, AA, and Quotas Equal employment opportunity: employment practices are designed and used in a “facially neutral” manner Affirmative action: the proactive effort to eliminate discrimination and its effects, and to ensure nondiscriminatory results in employment practices in the future ▪ An affirmative action plan describes in detail the actions to be taken, procedures to be followed, and standards to be adhered to, when it comes to establishing an affirmative action program Staffing Quotas: establish specific requirements, that certain percentages of disadvantaged groups be hired to equalize their proportional representation of under-represented groups in the company’s workforce, with their proportions in the organization’s relevant labor market COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-20 Affirmative Action Plans Involving Preferential Treatment ▪Should be remedial in nature ▪Should not exclude all non-minorities ▪Should be temporary ▪Should be formalized COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-21 Equal Employment Opportunity Commission (EEOC) Enforces the following federal statutes: ▪ Title VII of the Civil Rights Act of 1964 ▪ The Age Discrimination in Employment Act of 1967 (ADEA) ▪ Pregnancy Discrimination Act of 1978 ▪ Title I and V of The Americans with Disabilities Act (ADA) of 1990 ▪ Sections 501 and 503 of the Rehabilitation Act of 1973 ▪ Sections 102 and 103 of The Civil Rights Act of 1991 ▪ The Equal Pay Act of 1963 ▪ The Genetic Information Nondiscrimination Act of 2008 (GINA) The EEOC receives over 90,000 charges each year. Even companies with large, sophisticated staffing functions are vulnerable The EEOC encourages and facilitates voluntary compliance through tailored programs to meet the needs of employers and through programs to educate the public on EEO laws COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-22 The Office of Federal Contract Compliance Programs (OFCCP) Part of the U.S. Department of Labor’s Employment Standards Administration. Responsible for administering and enforcing three equal employment opportunity programs that apply to federal contractors and subcontractors: ▪ Executive Order 11246 (later expanded by Executive Order 11375) ▪ Section 503 of the Rehabilitation Act of 1973 ▪ The affirmative action provisions of the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 Ensures that federal contractors with at least 50 employees and who receive $50,000 or more in grants, goods, and services take affirmative action to promote equal employment opportunity and annually file appropriate affirmative action plans. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-23 The Office of Federal Contract Compliance Programs (OFCCP), cont. The OFCCP’s mission is to ensure non-discrimination, to expand opportunities, and to make sure that all employment decisions are inclusive and supportive of diversity. Primarily relies on compliance reviews and complaint investigations. Although the OFCCP does enforce affirmative action compliance, it focuses to a greater extent on class action discrimination. Conducts systemic reviews of employers’ employment practices to search out discrimination. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 1-24 Who is an “Applicant?” The legal definition of an applicant is particularly important with regard to two employment law issues: 1. Only “applicants” may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes 2. Employers must determine who qualifies as an “applicant” in order to identify the gender and race of all applicants to evaluate whether its hiring practices have an adverse impact on men, women, or minorities The question of who is an applicant is critical to establishing the proportions of the applicant pool belonging to different legally protected groups (e.g., sex, race, national origin, etc.). Understanding the definition of an applicant can help employers minimize risk and protect themselves from costly audit defense. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-25 How the OFCCP Defines “Applicant” The OFCCP considers a person applying via the Internet and related technologies to be an applicant if all four of the following criteria are satisfied: 1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies; 2. The contractor considers the individual for employment in a particular position; 3. The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and 4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-26 Disparate Treatment ▪The intentional discrimination based on a person’s protected characteristic ▪Can be direct, for example resulting from a company’s policy to not hire older workers ▪Can be inferred from situational factors or result from a combination of permissible and prohibited factors COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-27 Inferring Disparate Treatment To establish this type of case of discrimination under the theory of disparate treatment, the plaintiff must show: ◦ That he or she belongs to a group protected from discrimination (race, gender, etc.). ◦ That he or she applied for the job and was qualified for the job for which the employer was seeking applicants. ◦ That despite being qualified he or she was rejected. (The plaintiff does not need to prove that he or she was rejected because of his protected status, only that despite his or her qualifications, he or she was rejected.) ◦ That after being rejected, the position remained open and the employer continued to seek applicants whose qualifications were similar to those of the plaintiff. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-28 Inferring Disparate Treatment, cont. ▪The burden then shifts to the employer to show that the discrimination is the result of a bona fide occupational qualification that is reasonably necessary for the normal operation of the business or the plaintiff wins the case. ▪If the employer shows that the discrimination is based on a business necessity, the plaintiff then has the opportunity to present evidence showing that the employer’s stated reason for the rejection was false and merely a pretext. ▪To establish a case allowed to go to court, the plaintiff need not prove that discrimination was the motivating factor in the hiring or promotion decision, only raise an inference that such misconduct occurred. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-29 Mixed Motive Case of Disparate Treatment ▪Employer is accused of having both, a legitimate, and an illegitimate reason for making the employment decision. ▪It is sufficient to show that a protected characteristic (race, sex, etc.) was a motivating factor in an employment decision, even if other legitimate factors (such as absences) also motivated the decision. ▪A plaintiff only needs to prove that the protected characteristic was a motivating factor – one of the reasons for the decision – no matter how small a role it played. ▪If a plaintiff satisfies the burden of proof that discrimination was a motivating factor in the employer’s adverse employment action, the employer is found liable. ▪The burden of proof then shifts to the employer to eliminate or reduce a plaintiff’s monetary damages by proving to the jury that they would have made the same employment decision in the absence of the discriminatory motive. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-30 Disparate Treatment and Mixed Motive Cases ▪Under the mixed motive analysis, the burden of proof is on the defendant to show that the decision would have been the same despite plaintiff’s race or sex. ▪Under the disparate treatment method, the burden of proof is on the plaintiff to disprove the same thing. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-31 Adverse Impact ▪Definition: When an action has a disproportionate effect on a protected group, regardless of the employer’s intent ▪The only defense for adverse impact is when the adverse impact is justified by business necessity or job relatedness (a bona fide occupational qualification or BFOQ) ▪Assessment scores cannot be altered or changed to reduce the adverse impact on protected groups ▪Assessment test results cannot be ignored simply because they have an adverse impact on a protected group COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-32 Adverse Impact Statistics Stock statistics: compare the percentage of men, women, or minorities employed in a job category with their availability in the relevant population of qualified people interested in the position COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-33 Adverse Impact Statistics Flow statistics: compare the percentage of applicants hired from different subgroups to determine if they are significantly different from each other The Uniform Guidelines on Employee Selection Procedures states that organizations must keep records of applicant flow statistics and applicant selection rates must be calculated: ▪ ▪ ▪ ▪ For each job category, For both internal and external selection decisions, For each step in the selection process, and By applicant race and sex. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-34 The 4/5 (or 80\%) Rule The 80\% rule: a selection rate for any race, sex, or ethnic group which is less than 4/5 (or 80\%) of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact ▪ Only a guideline; provides for exceptions based on issues surrounding statistical and practical significance of the differences in selection rates (such as small sample sizes) COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-35 Adverse Impact Statistics Concentration statistics: compare the percentages of men, women, or minorities in various job categories to see if men, women, or minorities are concentrated in certain workforce categories ▪ If half of an organization’s employees are female but women tend to comprise 90\% of the clerical workforce and men tend to comprise 90\% of the managerial workforce women may be underutilized in managerial positions and men underutilized in clerical positions COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-36 Establishing an Adverse Impact Case The plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group. ▪ The defendant can then criticize the statistical analysis or offer different statistics. If the plaintiff establishes disparate impact, the employer must prove that the challenged practice is “job-related for the position in question and consistent with business necessity.” Even if the employer proves business necessity, the plaintiff may still prevail by showing that the employer has refused to adopt an alternative employment practice that would satisfy the employer’s legitimate interests without having a disparate impact on a protected class. COPYRIGHT © 2015 PEARSON EDUCATION, INC. 3-37 Defending Failure-to-Hire Lawsuits ▪Failure-to-hire lawsuits can be difficult to defend because of the lack of work history with the plaintiff to rely on. ▪Providing all recruits ... Purchase answer to see full attachment