Rent 9780130200389 | Personnel Law | Sovereign, Kenneth @knetbooks.com

Summary Table of Contents

The Fourth Edition offers a comprehensive treatment of personnel law that reflects the author's personal experience both as a practicing lawyer and personnel director. Written in simple language that bridges the gap between law and human relations management, the new edition explores the legal considerations that occur when an employer-employee relationship is established, and focuses on permissible activities in handling personnel problems, when to seek legal counsel, and how to stay out of court.

PREFACE

xvii

1 INFLUENCE OF THE LAW ON THE PERSONNEL FUNCTION

(13)

Evolution of the Personnel Function

(1)

... MORE

Merging of the Law into the Personnel Function

(1)

Effect of the Merger

(1)

Elimination of Pseudo Practices

(1)

Management Resistance

(1)

Federal Laws Most Frequently Encountered in Personnel

(1)

Education of Workers as to their Rights

(2)

Worker Education Programs

(1)

Legal Advertising

(1)

Relationship of Personnel Problems to Legal Problems

(2)

Problems Encountered in Personnel Administration

(1)

Exposure to a Lawsuit

(1)

Living Economically with the Law

(1)

Changing Personnel Practices

(1)

Establishment of Written Policies

(3)

How Much or How Little Policy?

(1)

Drafting a Policy Manual or Handbook

(1)

Drafting Policy Manuals or Handbooks

(1)

Recommendations for Drafting Policies

(1)

Revision of Present Policies

(1)

Essential Procedures to Avoid Exposure to Lawsuits

(1)

Is Diversity a Can of Worms?

(3)

Consumer Consideration

(2)

2 EXPLANATION OF THE COURT STRUCTURE

(13)

Structure of the Federal Courts

(1)

Structure of the Supreme Court

(1)

Explanation of Legal Documents

(2)

Increase in Litigation

(3)

When to Use Legal Counsel

(2)

A Litigation-Happy Society

(1)

Growth of the Legal Profession

(1)

Economic Use of Legal Counsel

(1)

Attorney Fees-Reasonable or Unreasonable

(1)

Contingent Fees

(1)

Referral Fees

(1)

Nonrefundable Retainers

(1)

Use of Legal Counsel

(3)

Distinction between Personnel and Legal Function

(1)

Relationship of Legal Counsel to Employees

(1)

Use of In-House Counsel

(1)

Obtaining Legal Opinions

(1)

Oral versus Written Opinions

(1)

Making a Risk Analysis

(2)

Cost Compared to Importance of Issue

(1)

3 ALTERNATIVE DISPUTE RESOLUTION? (ADR)

(6)

What is Alternative Dispute Resolution?

(2)

Why ADR?

(1)

Types of ADR

(1)

Selection of the Process

(1)

Effectiveness of ADR

(1)

A Successful ADR

(1)

Definition of Mediation

(1)

Mediation Training

(1)

Role-Playing

(1)

The Impasse

(1)

Unsuccessful ADR

(1)

There Is Not a Settlement

(1)

Settlement Documents

(1)

Contents of a Definitive Document

(1)

Federal Courts Enforce ADR

(2)

Ethics in ADR

(2)

4 DISCRIMINATION UNDER CIVIL RIGHTS ACT OF 1866 AND TITLE VII

(13)

The Law of Discrimination

(1)

Application and Coverage of Civil Rights Act of 1866 and Its Amendments

(1)

Personal Liability

(1)

Differences from Other Antidiscrimination Laws

(1)

Discrimination under Title VII

(8)

Definition of Discrimination

(1)

Prime Facie Evidence

(1)

Distinction between Equal Employment and Equal Opportunity

(1)

Protection from Retaliation

(1)

Retaliation Defense

(1)

Role of Trade Unions under Title VII

(1)

Business Necessity as a Reason for Discrimination

(1)

A Nondiscriminatory Reason for an Employment Decision

(1)

Out-of-Court Settlements

(3)

Factors to Be Reviewed

(1)

Alternative Dispute Resolution

(1)

Considerations for Out-of-Court Settlements

(1)

The Settlement Agreement

(2)

5 SELECTING QUALIFIED APPLICANTS

(21)

The Civil Rights Act of 1991 (CRA91)

(1)

Preemployment Procedures

(4)

Recruitment

(1)

Relying on One Method

(1)

Word of Mouth Recruiting

(1)

Preemployment Inquiries on Application Forms

(3)

Selection Process

(11)

The Use of the Weighted Application Blank

(2)

WAB as a Defense to Questions Asked

(2)

Preemployment Testing

(1)

Restrictions on Testing

(3)

Validation of Tests

(1)

Determination of Disparate Impact Threshold

(1)

Types of Test Validation

(1)

Preemployment Physicals

(1)

Establishing Criteria for Selection

(1)

Use of Job Descriptions and Job Analysis

(1)

Obsolete Job Descriptions

(1)

Litigation and Job Descriptions

(1)

Use of Applicant Pool to Eliminate Crisis Hiring

(1)

National Origin Discrimination

(1)

Dress and Grooming Codes

(1)

Immigration Reform and Control Act of 1986 (IRCA)

(2)

Verification of Employability

(1)

Penalties

(1)

Discrimination Provisions

(1)

The Selection Audit

(2)

Recruiting Practices

(1)

Application Review

(1)

Interviewing

(1)

6 ACCOMMODATION FOR RELIGION AND PHYSICAL HANDICAPS

(22)

What is a Disabled Person?

(1)

Accommodation for Physical Handicaps

(1)

What is a Disability Under ADA

(5)

Rehabilitation Act of 1973 and ADA

(1)

Rehabilitation Act of 1973

(1)

Definition of a Handicapped Person

(1)

Judicial Definition of a Handicapped Person

(1)

Accommodation for Handicapped Persons

(1)

BFOQ as Applied to Accommodation

(1)

Bona Fide Effort to Accommodate

(1)

Accommodations under Rehabilitation Act Relating to AIDS

(1)

Accommodation for Religious Beliefs

(2)

The Concept of Accommodation

(1)

Duty to Make Reasonable Effort to Accommodate

(1)

Alternative Accommodations

(1)

Accommodation for Union Dues

(1)

Habitual (or Controllable) Handicaps

(2)

Smoking Problems in the Workplace

(1)

Legal Rights of Smokers and Nonsmokers

(1)

Recommendations for a Smoking Policy

(1)

Drug and Alcohol Problems

(6)

Need for a Drug-Testing Policy

(1)

Essential Elements of a Policy

(1)

Surveillance for Presence of Drugs

(1)

Testing Procedure for Drug Abuse

(1)

Regulation of Off-Duty Drug Abuse Activity

(1)

Correction of Drug Abuse by Employer

(1)

Policy on Alcohol Abuse

(1)

Surveillance for Alcohol Abuse

(1)

Preemployment Procedures in Substance Abuse

(1)

Policy Needed to Avoid Lawsuits

(1)

Employer Third Party Liability for Inebriated Employees

(1)

Dealing with AIDS in the Workplace

(5)

Basic Understanding of the Disease

(1)

Transmission of the Disease

(1)

Statutory Protection of AIDS

(1)

Tests for AIDS

(1)

Problems with Co-workers of AIDS Victims

(1)

Arbitrators Position of Disabled Employees

(1)

Recommendations for Dealing with AIDS

(1)

Policy on Life-Threatening Disease

(1)

7 WORKING CONDITIONS BASED ON SEX

(23)

Historical Dominance of the Male in the Workplace

(1)

Title VII Restrictions on Sex Discrimination

(3)

Grooming and Dress Code as Preferential Treatment

(1)

BFOQ as a Defense in Sex Discrimination

921

(1)

Discrimination because of Marriage

Sex Discrimination in Work Assignments

Harassment-Definition and Control

(10)

Sexual Harassment in the Workplace

(1)

Legal Basis of Sexual Harassment

(1)

Reverse Sexual Harassment

(1)

Third Party Actions

(1)

Effect of CRA91 on Sexual Harassment

(1)

The Meritor Case

(1)

Unwelcomed Harassment

(1)

Job Opportunities or Hostile Environment

(1)

Hostile Environment-A Definition

(1)

Knowledge Imputed to Employer-State of the Law

(1)

Control of Harassment

(1)

Investigation of a Complaint

100

(1)

Need for Immediate Investigation

100

(1)

Steps in an Investigation

100

(1)

Necessary Ingredients for Policy

100

(1)

Reporting Procedure for Policy Violation

101

(1)

Training to Prevent Liability

101

(2)

When Off-Duty Conduct Comes Into the Office

103

(1)

Control of Social Relationships

103

(1)

Discipline for Off-Duty Conduct

104

(1)

An Overview of the Equal Pay Act

104

(6)

Definition of Equal Work

105

(1)

Measurement of Equal Skills

106

(1)

Job Responsibility to Justify a Differential

106

(1)

Misuse of Term "Merit Pay"

107

(1)

Necessary Elements for a Bona Fide Merit Plan

107

(1)

Factors Other Than Sex to Justify a Differential

108

(1)

EEOC Regulations Interpreting Equal Pay Act

108

(1)

Failure of EPA to Correct Differentials between Sexes

109

(1)

Audit of EPA Compliance

110

(1)

Comparable Pay for Comparable Worth

110

(2)

Legal Death of Comparable Worth Theory

111

(1)

8 PROTECTION AGAINST AGE DISCRIMINATION IN EMPLOYMENT

112

(11)

An Overview of ADEA

113

(1)

Exemptions under ADEA

113

(1)

Problems in Defending Employment Decisions

113

(1)

Age as a Factor in Making a Decision

114

(2)

Early Retirement Programs

116

(1)

ERISA Does Not Prohibit Use of Early Retirement Pension Waivers

116

(4)

Waiver Requirements under OWBPA

116

(1)

Elements of an Early Retirement Option

117

(1)

Reduction in Force (RIF)

118

(1)

Selection of Employees for RIF

119

(1)

Severance Pay as an Exposure

119

(1)

Punitive Damages under ADEA

120

(1)

Avoiding Litigation

120

(3)

Procedures to Avoid Litigation

120

(1)

Retirement Counseling

121

(2)

9 AFFIRMATIVE ACTION AND PERFORMANCE APPRAISALS

123

(14)

Scope and Purpose of Affirmative Action

123

(3)

The Difference Between Affirmative Action and Diversity

124

(1)

The Value of an Affirmative Action Plan

124

(1)

Basic Elements of an Affirmative Action Plan

125

(1)

Implementation of the Plan

125

(1)

Reverse Discrimination and Affirmative Action

126

(4)

Affirmative Action in Selection

126

(1)

Affirmative Action when Reducing Work Force

126

(1)

Affirmative Action in Promotion

127

(1)

Recommendations for an Acceptable Plan

128

(2)

Employer Posture in a Compliance Review

130

(1)

Seniority and Antidiscrimination Laws

130

(1)

Seniority System That Perpetuates Discrimination

130

(1)

Seniority as a Defense

131

(1)

Exposure of Performance Appraisal Plans

131

(6)

Reasons for Failure of Appraisal Systems

132

(1)

Judicial Review of Performance Appraisals

132

(1)

Need to Change Performance Appraisals

133

(1)

Recommendations for Validating Appraisal Plans

134

(1)

Removing Subjectivity from Appraisal Results

134

(1)

Suggestions for a Judicially Acceptable Appraisal Plan

134

(3)

10 REGULATION OF BENEFIT PLANS AND EFFECTIVE USE OF EMPLOYEE AGREEMENTS

137

(19)

Family and Medical Leave Act of 1993

138

(1)

Worker Adjustment and Retraining Notification Act (WARN)

139

(1)

Reduction of the Notification Period

139

(1)

Regulation of Pregnancy Disability Benefits

139

(2)

State Laws Concerning Pregnancy Disability

140

(1)

Difference between Pregnancy and Other Illnesses

140

(1)

Case Law on Pregnancy Disability

141

(1)

Reemployment Rights after Military Service

141

(2)

Probationary Period for Returning Veteran

142

(1)

Employment and Reemployment Rights

142

(1)

General Pay Increase While in the Service

142

(1)

Accommodation for Reserve Duty

143

(1)

Effect of Statutes on Unpaid Leave of Absence Policy

143

(1)

Restrictions on Vacation Policy

144

(1)

Granting Vacation Pay in Lieu of Time Off

144

(1)

Enforcement of Vacation Pay as Wages

144

(1)

Effect of "Use It or Lose It" Policy

145

(1)

Regulation of Health Care Benefits and Pensions

145

(6)

Sex Differences in Benefits

145

(1)

Older Workers Benefit Protection Act (OWBPA) of 1990

146

(1)

Requirement of Alternative Health Care Plan (HMO)

146

(1)

Consolidated Omnibus Budget Reconciliation Act (COBRA)

147

(1)

Gross Misconduct

148

(1)

Health Care Insurance for Retirees

148

(1)

Employee Retirement Income Security Act

149

(1)

Purpose of ERISA

149

(1)

Problem Areas under ERISA

149

(1)

ERISA and Employee Rights

150

(1)

Preemption over State Laws

150

(1)

Effective Use of Employment Agreements

151

(5)

Need for Employment Agreements

151

(1)

Use of Employment Agreements

151

(1)

Provisions in a Typical Employment Agreement

151

(1)

Confidentiality and Convenants Not to Compete

152

(1)

Conflict-of-Interest Clauses

152

(1)

Enforcement of Employment Agreements

153

(1)

Arbitration of Employment Agreements

153

(1)

Alternative Dispute Resolution

153

(1)

Use of Agreements with Employment Agencies

154

(1)

Guidelines in Drafting an Employment Agency Agreement

155

(1)

11 THE AT-WILL DOCTRINE

156

(15)

Definition and History of Employment-at-Will Doctrine

156

(3)

Harshness of the Rule

157

(1)

Property Right in a Job

157

(1)

Judicial Application of At-Will Doctrine

158

(1)

Statutes that Void At-Will Doctrine

159

(2)

Major Federal Statutes That Limit Employment-at-Will Doctrine

159

(1)

Retaliation in an Antidiscrimination Statute

159

(1)

Retaliation

160

(1)

Mixed Reasons for Discharge

160

(1)

Mixed Discharge

160

(1)

State Whistle-Blower Statutes

160

(1)

State Statutes That Require Just Cause

161

(1)

Public Policy Exception to At-Will Doctrine

161

(2)

Exercise of Employee Right Under a Statute

162

(1)

Refusal to Disobey a Law

163

(1)

Discharge for Whistle-Blowing

163

(1)

Malice and Bad Faith

163

(1)

The Employment Relationship as a Contract

163

(1)

Implied Contract That Modifies At-Will Doctrine

164

(3)

Implied Contract

164

(1)

Quoting an Annual Salary

164

(1)

Hiring Strike Replacements

165

(1)

Handbooks and Policy Manuals

165

(1)

Changing the Implied Contract

166

(1)

Use of Term Probationary Period in a Handbook

166

(1)

Risk in Use of a Probationary Period

166

(1)

Constructive Discharge

167

(4)

Definition of Intolerable Conditions

167

(1)

Constructive Discharge under the NLRA

167

(1)

Intolerable Working Conditions as Determined by Courts

168

(1)

What Are Intolerable Conditions?

168

(1)

Demotion or Transfer

169

(1)

Discrimination

169

(1)

Alternative of Resigning or Discharge

169

(1)

Prevention of Constructive Discharge Claims

170

(1)

12 PREVENT WRONGFUL DISCHARGE LITIGATION

171

(15)

Preventing Wrongful Discharge Exposure

172

(3)

The At-Will Clause

172

(1)

Audit of the Interviewing Process

173

(1)

The Job Offer Letter

173

(1)

Effectiveness of a Complaint Procedure

173

(1)

Audit of Performance Appraisals

174

(1)

Audit of Just-Cause Policy

174

(1)

Writing a Handbook or a Policy Manual

175

(5)

Need for a Handbook

176

(1)

Problem Areas in a Handbook

176

(1)

Contents of a Well-Written Handbook

177

(1)

Disclaimer Clauses in a Handbook

178

(1)

Audit of a Handbook

179

(1)

Language of the Handbook

180

(1)

The Discharge Process

180

(4)

Exposure to Lawsuits Is Expensive

181

(1)

Proper Discharge Procedure

181

(1)

Causes of Provocation

181

(1)

How to Prevent Provocation

182

(1)

Timing and Place of Discharge

182

(1)

Why on Friday?

182

(1)

Final Steps in Discharging

183

(1)

A Second Fresh Look

183

(1)

The Exit Interview

183

(1)

Employment Agreements at Time of Hiring

184

(1)

The Use of Waivers or Releases

184

(2)

Purpose of Discharge Procedure

185

(1)

Checklist to Prevent Exposure to Wrongful Discharge Litigation

185

(1)

13 BALANCING EMPLOYEE PRIVACY RIGHTS AND EMPLOYER'S RIGHT TO KNOW

186

(24)

Use of Personnel Records and Requirements to Retain

186

(4)

Definition and Purpose of Personnel Records

186

(1)

Statutory Requirements to Retain Certain Records

187

(1)

Record Retention as a Personnel Policy

188

(1)

Statutory Requirements of Disclosure

188

(1)

Disclosure Rights of Public Employees

189

(1)

Overview of Privacy Rights in Employer-Employee Relationship

190

(2)

Technology and Training

190

(1)

Technology and Privacy

191

(1)

Employer Invasion of Privacy

192

(1)

Rights in Public Sector

192

(1)

Use of Polygraph Tests

192

(3)

Employee Polygraph Protection Act

193

(1)

Recommended Policies for Polygraph Testing

194

(1)

Employer Right of Search and Seizure

195

(2)

Fourth Amendment Protection in the Public Sector

195

(1)

Limitation of Searches by Labor Agreement

195

(1)

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