Chapter 4

Legal Construction of
the Employment
Environment

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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 employers 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 employees
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

4-9
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 ex-
employee 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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Is Testing Legal?
Most tests are legal if they are directly related to
the job.
It is fair to test typing skills if you are hiring,
qualifying or promoting a stenographer.
It is not fair or legal to test typing skills if you are
hiring an electrician

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Types of Testing
Aptitude
Residency although not specifically employment there was an
issue in Lewiston-Auburn about a county commissioner who was
removed because she moved from the town she was elected to
represent to another town
Physical and skills tests
Personality and Integrity tests
Honesty
Psychological
Substance abuse Maine has a specific law regarding this
**** All tests have to relate to the specific job

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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 positions 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 employers financial responsibility to the
workers compensation system

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Polygraph Testing
Congress passed the Employee Polygraph
Protection Act and then exempted the federal
government. That is why the feds conduct
polygraphs.
There are also some polygraph specific
allowances around national security, high
hazards, and other high end jobs

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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 Acts guidelines
Coverage varies with technology used
Immunoassay test
Radio-immunoassay of hair
Drug-Free Workplace Act of 1998
Case: Natl. 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 subjects 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 employees performance
The purpose of performance appraisals
identify performance characteristics employer hopes
employee will accentuate
Discourage performance characteristics not in
keeping with the organizations 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 employees or applicants 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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