Employment Law for Human Resource Practice, Seventh Edition
David J. Walsh
Contents
Preface xvii
Acknowledgments xxiii
Introduction to Employment Law
Chapter 1 Overview of Employment Law 2
Heard at the Staff Meeting 2
U.S. Employment Law Is a Fragmented
Work in Progress 3
Sources of Employment Law 3
Constitutions 4
Statutes 4
Executive Orders 4
Regulations, Guidelines, and Administrative
Decisions 4
Common Law 5
Substantive Rights under Employment Laws 5
Nondiscrimination and Equal Employment
Opportunity 5
Freedom to Engage in Concerted Activity and
Collective Bargaining 6
Terms and Conditions of Employment That Meet
Minimum Standards 6
Protection of Fundamental Rights 6
Compensation for Certain Types of Harm 6
Warner v. United Natural Foods, Inc. 7
Determining Which Employment Laws Apply 10
Public- or Private-Sector Employment 10
Unionized or Nonunion Workplace 11
Employer Size 11
Geographic Location 13
Government Contracts 13
Industry and Occupation 13
Historical Development of U.S. Employment
Law 14
Procedures for Enforcing Employment Laws 16
What Does an Employee Decide to Do When She
Believes That Her Rights Were Violated? 16
How Long Does the Employee Have to Bring a
Case? 17
Can a Lawsuit Be Brought? By Whom? 19
Class-Action Lawsuits 20
Is There an Administrative Prerequisite to a
Lawsuit? 21
Must the Employee Exhaust Internal Dispute
Resolution Mechanisms Before Proceeding? 22
Enforceability of Arbitration Agreements 24
OTO, L.L.C. v. Kho 25
Remedies for Violations of Employment Laws 32
EEOC v. AutoZone 33
The Role of Managers in Legal Compliance 39
Key Terms 40
Chapter Summary 40
Practical Advice Summary 41
Chapter Questions 41
Chapter 2 The Employment Relationship 43
The Importance of Determining Whether
an Employment Relationship Exists 44
Who Is an Employee? 45
Independent Contractors 46
Acosta v. Off Duty Police Services, Inc. 50
The ABC Test and the Employment Status of “Gig Workers” 56
People v. Uber Technologies, Inc. 59
Using Independent Contractors 65
Temporary Workers 66
Students and Interns 66
Volunteers 70
Partners 71
Other Issues Concerning Employee Status 73
Who Is the Employer? 73
Agency 74
Integrated Enterprise 74
Joint Employers 76
Salinas v. Commercial Interiors 76
Key Terms 84
Chapter Summary 84
Practical Advice Summary 85
Chapter Questions 86
Chapter 3 Overview of Employment Discrimination 90
The Continuing Reality of Employment
Discrimination 90
The Concept of Employment Discrimination 93
Protected Classes 95
Types of Discrimination 96
Disparate Treatment: A Closer Look 100
Types of Disparate Treatment Cases 100
Pretext: Indirect Method of Analyzing Disparate
Treatment Cases 102
Jones v. Oklahoma City Public Schools 109
Direct Method of Analyzing Disparate Treatment
Cases 111
Robertson v. Riverstone Communities, LLC. 112
Subordinate Bias Theory of Liability 118
Disparate Impact: A Closer Look 119
Analyzing Disparate Impact Cases 121
Retaliation: A Closer Look 123
Analyzing Retaliation Cases 123
Strothers v. City of Laurel 125
Robertson v. Wisconsin Department of Health
Services 134
Key Terms 140
Chapter Summary 140
Practical Advice Summary 142
Chapter Questions 142
The Hiring Process
Chapter 4 Recruitment 146
Recruitment Methods 147
Want Ads and Job Announcements 147
Employment Agencies 148
Nepotism and Word-of-Mouth Recruiting 149
Enlisting Day Laborers 151
Proving Discrimination in Recruitment: Statistical
Evidence 152
NAACP v. North Hudson Regional Fire &
Rescue 154
Affirmative Action 157
Reasonable Self-Analysis 159
Reasonable Basis for Affirmative Action 160
Reasonable Affirmative Actions 160
Recruiting Foreign Nationals for U.S.
Employment 162
Visa Programs 162
Labor Trafficking 165
Application Process 168
EEOC v. Target Corp. 169
Preemployment Inquiries 173
Helmuth v. Troy University 177
No-Poaching Agreements 186
Statements by Employers 187
Spears v. Amazon.com. KYDC LLC 188
Statements by Employees 193
Key Terms 195
Chapter Summary 195
Practical Advice Summary 197
Chapter Questions 199
Chapter 5 Background Checks, References, and Verifying Employment Eligibility 202
Background Checks 202
Employer Responsibility for Employee
Wrongdoing 203
Negligent Hiring 204
Hammer v. Lee Memorial Health System 209
Doe v. Yum! Brands, Inc. 211
Privacy Rights and Background Checks 216
Criminal Records 217
Credit Reports 222
Fair Credit Reporting Act 222
References 226
Defamation 226
Moraes v. White 228
Negligent Referral 237
Verifying Employment Eligibility 238
The Immigration Reform and Control Act 239
Key Terms 243
Chapter Summary 243
Practical Advice Summary 244
Chapter Questions 246
Chapter 6 Employment Tests 249
Drug Tests 249
Drug-Testing Procedures 253
Use of Drug Test Results 255
Medical Examinations 257
Limitations on the Use of Medical Examinations
under the ADA 258
EEOC v. McLeod Health, Inc. 261
Genetic Tests 265
Polygraphs and Honesty Tests 267
Scored Tests of Ability 268
Examining Test Items 269
Examining Test Results 271
Establishing That Tests Are Job-Related and
Consistent with Business Necessity 272
United States EEOC v. Stan Koch & Sons
Trucking 273
Determining Appropriate Cutoff Levels for Test
Scores 282
Bauer v. Lynch 283
Accommodating Disabled Persons in Testing 289
Key Terms 289
Chapter Summary 290
Practical Advice Summary 290
Chapter Questions 292
Chapter 7 Hiring and Promotion Decisions 295
Facially Discriminatory Policies/Practices: BFOQ
Defense 295
Grounds for Recognizing BFOQs 297
Ambat v. City & County of San Francisco 300
Sex-Plus Cases 306
Affirmative Action Preferences 306
The Legality of Affirmative Action Preferences
under Title VII 307
The Legality of Affirmative Action under
the U.S. Constitution 308
Weight and Appearance 310
Sex Stereotyping 314
Lewis v. Heartland Inns of America 315
Discrimination against Caregivers 319
Subjective Criteria 320
Interviews 324
Hilde v. City of Eveleth 326
Offering and Accepting Employment 330
Promotions 331
Glass Ceilings 335
Key Terms 337
Chapter Summary 337
Practical Advice Summary 339
Chapter Questions 341
Managing a Diverse Workforce
Chapter 8 Harassment 346
Harassment as a Form of Discrimination 346
Because of Sex 347
Parker v. Reema Consulting Services 348
Recognizing Harassment 354
Which Behaviors Constitute Harassment? 354
Harassment That Results in Tangible
Employment Actions 355
Hostile Environment Harassment 357
Gerald v. University of Puerto Rico 359
Are the Harassing Behaviors Unwelcome? 364
Liability for Harassment 366
Harassment by Top Officials, Managers, and
Supervisors 367
Wyatt v. Nissan North America, Inc. 368
Harassment by Coworkers or Third Parties 380
Eliminating Harassment 383
Harassment Policies and Complaint
Procedures 383
Responding to Reports of Harassment 386
Investigating Reports of Harassment 388
Key Terms 392
Chapter Summary 392
Practical Advice Summary 393
Chapter Questions 395
Chapter 9 Reasonably Accommodating Disability and Religion 399
Reasonable Accommodation of Disability 400
Disability 401
Hostettler v. College of Wooster 408
Reasonable Accommodation 414
The Process of Reasonably Accommodating
Disability 415
What Makes an Accommodation
Reasonable? 418
Fisher v. Nissan North America, Inc. 419
Bilinsky v. American Airlines 426
When Does an Accommodation Impose Undue
Hardship? 432
Reasonable Accommodation of Religion 433
Religion 433
Failure to Reasonably Accommodate Religion 435
Davis v. Fort Bend County 439
Religious Advocacy and Religious
Harassment 445
Religious Organization Exemption 447
Key Terms 451
Chapter Summary 451
Practical Advice Summary 452
Chapter Questions 454
Chapter 10 Work–Life Conflicts and Other Diversity Issues 459
Leave Policies under the Family and Medical Leave
Act 461
Who Is Entitled to FMLA Leave? 461
What Are FMLA Qualifying Events? 463
What Must Employees Do to Obtain Leave? 466
Ramji v. Hospital Housekeeping Systems, L.L.C. 467
What Does the FMLA Require Employers to
Provide? 474
How Should Employers Respond to Requests for
FMLA Leave? 479
Leave Policies under the Pregnancy Discrimination
Act 479
Durham v. Rural Metro Corp. 480
Leave to Perform Civic Duties 486
Leave for Military Service 486
Huhmann v. Fed. Express Corp. 489
Language Requirements and National Origin
Discrimination 493
English Fluency and Accents 494
English-Only Rules 496
Discrimination Based on Sexual Orientation and
Gender Identity 497
Sexual Orientation 497
Protection under Federal Law 498
Bostock v. Clayton County 499
Gender Identity 507
Key Terms 508
Chapter Summary 508
Practical Advice Summary 509
Chapter Questions 511
Pay, Benefits, Terms and Conditions of Employment
Chapter 11 Wages, Hours, and Pay Equity 516
Wage and Hour Standards: Fair Labor Standards
Act 518
Minimum Wage 519
Overtime Pay 520
Determining Compliance with Wage and Hour
Standards 522
Compensation Received 522
Compensable Time 523
Peterson v. Nelnet Diversified Solutions, LLC 529
Exemptions from FLSA Requirements 537
White-Collar Exemptions 537
Hobbs v. Evo, Inc. 542
Other Wage Laws 550
What about Farmworkers? 551
Limitations on Work Hours 552
Discrimination in Pay: Equal Pay Act 554
Proving Pay Discrimination under the Equal Pay
Act 555
Equal Work 555
Factors Other Than Sex 557
Riser v. QEP Energy 559
Title VII 563
Salary History 564
Pay Secrecy Policies 564
Key Terms 565
Chapter Summary 565
Practical Advice Summary 566
Chapter Questions 568
Chapter 12 Benefits 571
Which Benefits Must Employers Provide? 571
What Does ERISA Require? 572
Inform Employees about Their Benefits 573
Deliver on Promised Benefits 575
Garner v. Central States 576
Provide Claims and Appeals Procedures 579
Manage Plans Wisely and in Employees’
Interests—Fiduciary Duties 580
Refrain from Interference or Retaliation 581
Pensions 582
Vesting and Participation 582
Types of Pension Plans 584
Hughes v. Northwestern University 590
Health Insurance 593
Health Insurance Reform 593
Maintaining Coverage: COBRA 598
Randolph v. East Baton Rouge Parish School
System 599
Retiree Health Benefits 602
Discrimination and Benefits 603
Wellness Programs 604
Key Terms 606
Chapter Summary 607
Practical Advice Summary 608
Chapter Questions 611
Chapter 13 Unions and Collective Bargaining 613
The Idea of Collective Bargaining 614
The National Labor Relations
Act (NLRA) 615
Employee Rights under the NLRA 616
NLRB v. Maine Coast Regional Health
Facilities 619
Unfair Labor Practices 629
Union Organizing and Representation
Elections 633
Union Organizing Campaigns 633
Employer Responses to Union Organizing 636
AutoNation, Inc. v. NLRB 639
Representation Election Procedures 648
Bargaining 652
Duty to Bargain in Good Faith 653
NLRB v. Whitesell Corp. 655
What Happens When Parties Cannot Reach
Agreement? 659
Labor Agreements 665
Enforcing Labor Agreements: Grievance Procedures
and Arbitration 666
Key Terms 668
Chapter Summary 668
Practical Advice Summary 670
Chapter Questions 672
Chapter 14 Occupational Safety and Health 676
The Occupational Safety and Health Act 676
How Safe Is “Safe Enough”? 677
Southern Hens, Inc. v. OSHRC 679
F & H Coatings, LLC v. Acosta 690
How Is the OSH Act Enforced? 696
Recording and Reporting Requirements 701
Mine Safety and Health Act 702
Preventing Occupational Injuries and
Illnesses 704
Workers’ Compensation 707
Exclusive Remedy 709
Arising Out of and In the Course of
Employment 711
“Arising Out of Employment” 714
Intercontinental Hotels Group. v. Utah Labor
Commission 715
Tripp v. Scott Emergency Communication
Center 720
Responding to Workplace Injuries 726
Key Terms 727
Chapter Summary 727
Practical Advice Summary 728
Chapter Questions 730
Chapter 15 Privacy on the Job 733
Overview of Workplace Privacy Protections 734
Constitutional Protection 734
United States v. Shelton 735
Common Law Protection 740
Martin v. Mooney 742
Statutory Protection of Privacy 746
Handling Records and Employee Information 747
Personnel Records 747
Medical Information 748
Monitoring and Surveillance
of Employees 752
Video Surveillance 754
Koeppel v. Speirs 755
Electronic Communications 760
Ehling v. Monmouth-Ocean Hospital Service
Corp. 765
Dittman v. UPMC 772
Investigation of Employee Conduct 776
Searches 776
Interviews and Interrogations 778
Polygraphs 781
Acting on Results of Investigations 781
Key Terms 783
Chapter Summary 783
Practical Advice Summary 785
Chapter Questions 786
Chapter 16 Terminating Individual Employees 790
Constructive Discharge 791
Employment at Will with Exceptions 794
Impermissible Grounds for Termination 795
Breach of an Implied Contract 796
Reynolds v. Gentry Financial Corp. 799
Retaliation for an Act Supporting
Public Policy 806
Meehan v. Medical Information Technology,
Inc. 810
Whistleblower Protection Statutes 816
Rhinehimer v. U.S. Bancorp Invs., Inc. 818
Discriminatory Termination 828
Just Cause/Due Process 831
Unionized Employees 831
Public Employees 835
Civil Service and Tenure Laws 836
Constitutional Protections 837
Moser v. Las Vegas Metropolitan Police
Department 845
Montana Wrongful Discharge from Employment
Act 850
Performance Appraisals 852
Handling Terminations 854
Key Terms 858
Chapter Summary 858
Practical Advice Summary 860
Chapter Questions 862
Chapter 17 Downsizing and Post-Termination Issues 867
Downsizing 867
The Decision to Downsize 868
Informing Employees Prior to Downsizing:
The WARN Act 873
Varela v. AE Liquidation, Inc. (In re AE Liquidation,
Inc.) 876
Selecting Employees for Downsizing 884
Barnett v. PA Consulting Group 887
Early Retirement Incentives 895
Effects of Bankruptcy on Employee
Rights 898
Post-Termination Issues 899
Unemployment Insurance 899
Restrictive Covenants 903
CNG Financial Corp. v. Brichler 905
Denson v. Donald J. Trump for President, Inc. 919
A Concluding Thought 924
Key Terms 925
Chapter Summary 925
Practical Advice Summary 926
Chapter Questions 928
Glossary 931
Case Index 947
Subject Index 956
Part 5