Hotel Restaurant and Travel Law A Preventive Approach

Introduction o o Employer-employee relationship is a fertile ground for lawsuits against an employer

Introduction o o (continued) Can take one of two forms: n Lawsuit by employee

Fair Labor Standards Act o FSLA—federal law adopted in 1938 to eliminate unfair methods

Fair Labor Standards Act o Mandates: n n o (continued) Minimum wages Overtime pay

Minimum Wage o o o (continued) With few exceptions, employers involved in interstate commerce

Minimum Wage o o (continued) States may specify a minimum wage higher than Congress

Low Sales Exception o Employers with less than $500, 000 in annual sales are

Tips Exception o o Employees who routinely receive at least $30/month in tips are

Tips Exception o o (continued) As of August 2006, up to 59 percent of

Youth Minimum Wage Exception o o o Employers can pay a lower wage to

Overtime Pay o Employees who are paid on an hourly basis and who work

Exempt Employees o o Executive, administrative, and professional employees are exempt from overtime and

Executive Employees o o Exempt from minimum wage and overtime requirements To qualify as

Administrative and Professional Employees o Also exempt from minimum wage and overtime requirements o

Administrative and Professional Employees (continued) o To qualify as professional: n n Must be

Time Worked o o FSLA identifies what constitutes as time worked for purposes of

Time Worked o (continued) Counts as time worked: n n n Coffee and snack

Split and Partial Shifts o o Employee is entitled to payment only for the

Equal Pay for Equal Work o o 1963 amendment to FSLA called Equal Pay

Equal Pay for Equal Work o o o (continued) Issue that arises is whether

Comparable Worth o o Jobs requiring different skills and responsibilities that have equal value

Retaliatory Discharge o EPA prohibits an employer from discharging or otherwise discriminating against an

Restriction on Child Labor o FSLA provides a minimum age for employees n o

Restriction on Child Labor—Hours o During school year (age 14 to 15): n n

Restriction on Child Labor— Hours (continued) o During vacation: n n n o o

Restriction on Child Labor—Tasks o Under age 18 cannot operate: n n n Meat

Enforcement of FSLA o An employee whose rights have been violated has two options

Family and Medical Leave Act o FMLA, effective in 1993, entitles eligible employees to

Family and Medical Leave Act (continued) o To be eligible employee must have: n

Family and Medical Leave Act (continued) o o To be covered by FMLA, employers

Family and Medical Leave Act (continued) o o o If the employee is unable

At-Will Employment o Employment contract between an employer and an employee is indefinite in

Illegal Job Discrimination o Employers cannot discriminate against workers on the basis of protected

Illegal Job Discrimination o o (continued) In some locales, sexual orientation has been added

Title VII of the Civil Rights Act of 1964 o Makes unlawful: n n

Title VII of the Civil Rights Act of 1964 (continued) o o Disparate treatment—intentional

Title VII of the Civil Rights Act of 1964 (continued) o o o Title

Filing a Complaint o o o Discrimination charges must be filed with the EEOC

Remedies o Until 1991, remedies were limited to: n n Injunction precluding the company

Remedies o o (continued) Back pay refers to the difference between the amount of

Remedies o o (continued) Categories of plaintiffs were greatly expanded by the Civil Rights

Punitive Damages o o Can be awarded only when the employer engaged in illegal

Expert Witness Fees o Important addition because most discrimination cases require one or more

Defense of Bona Fide Occupational Qualifications o BFOQ relieves an employer from liability for

Defense of Bona Fide Occupational Qualifications o Two elements necessary to qualify: n n

Defense of Business Necessity o Criterion has an obvious relationship to job performance COPYRIGHT

Prohibited and Permitted Interview Questions o o o Law bars employers from asking certain

Prohibited and Permitted Interview Questions (continued) o Ban applies to all aspects of the

Race o o o One of the grounds on which Title VII outlaws discrimination

Race o Outlawed discrimination includes: n n o (continued) Refusal to hire Resistance to

Racially Hostile Work Environment o An employment atmosphere that permits racially derogatory comments, jokes,

Reverse Discrimination o Discrimination against a person of a majority race COPYRIGHT © 2008

National Origin o o o Another protected class Refers to the country where people

Fluency in English o Refusing to hire someone whose English is faltering may constitute

National Origin and Accent Discrimination o o “Accent and national origin are inextricably intertwined”

Religion o o Accommodating religion-based requests for days off can be complicated Employer has

Religion o (continued) If such an accommodation would cause undue hardship to the business,

Reasonable Accommodations o o Requires an employer to give unpaid time off for religious

Reasonable Accommodations (continued) o Employee must establish that the religious foundation for the requested

Gender o o An employer cannot refuse to grant women or men a benefit

Competency Required o Plaintiffs must establish that they are qualified for the position they

Glass Ceiling o o Artificial barriers that have held women and minorities back from

Glass Ceiling o o (continued) Report that was issued in 1995 concluded that substantial

Glass Ceiling o (continued) Major contributors: n n Persistent bias Negative stereotypes Prejudice concerning

Glass Ceiling o (continued) Commission’s recommendations for removing barriers: n n n CEO must

Glass Ceiling o (continued) Commission’s recommendations: n n n (continued) Businesses should prepare minorities

Glass Ceiling o o (continued) Companies should review their policies and practices Modify them

Gender-Differentiated Grooming Standards o o A number of cases involve male employees fired for

Gender-Differentiated Grooming Standards (continued) o o Objective of Title VII is to equalize employment

Sexual Harassment o Form of sexual discrimination and constitutes a violation of Title VII

Sexual Harassment o (continued) Includes two types of illegal action: n n Quid pro

Frequency of Offending Conduct o To qualify as sexually harassing conduct, the objectionable behavior

Same Gender Sexual Harassment o o o Sexual harassment is most often a male

Sexual Orientation Sexual Harassment o Harassing conduct based on the harasser’s animus toward sexual

Sexual Stereotyping Sexual Harassment o Sexual harassment resulting from failing to conform to a

Unwelcome Conduct o o Critical factor for sexual harassment is that the activity be

Unwelcome Conduct o o (continued) In some circumstances, the unwelcome nature of the conduct

Employer Liability o Employers often try to avoid liability by claiming that a supervisor’s

Employer Liability—Quid Pro Quo o o Harasser’s employer is liable The theory is that

Employer Liability—Hostile Environment o An employer can escape liability if three elements are satisfied:

Importance of Remedial Action o An employer who fails to take appropriate and effective

Sexual Harassment by Coworkers o o An employer may be liable for sexual harassment

Sexual Harassment by Customers o An employer who takes prompt and substantial action to

Outside Scope of Employment o If sexual harassment conduct occurs outside the scope of

Policies and Complaint Procedures o o Employers should develop a company policy clearly establishing

Policies and Complaint Procedures (continued) o o Should include a complaint procedure that authorizes

Policies and Complaint Procedures (continued) o When warranted, appropriate and prompt remedial action should

Pregnancy o o o Pregnant women have historically been subject to termination They now

Pregnancy o (continued) Employer cannot terminate a pregnant woman whose doctor requires her not

Pregnancy o (continued) Business necessity n n If an employer can show that a

Reinstatement after Giving Birth o o Policies must be the same as for other

Abortion Issue o Discharging an employee on the basis of a statement that she

Age o o o The American workforce has aged Issues of age discrimination arise

Age o o (continued) If an employer opts to not to hire or fires

Age o o (continued) ADEA attempts to balance the needs of seasoned workers with

Age o o (continued) Requires employers to make employment decisions based on legitimate reasons

Retaliatory Discharge o o It is llegal for an employer to retaliate against an

Mixed Types of Discrimination o Sometimes an employer will discriminate against a worker on

Americans with Disabilities Act o o o ADA became effective in 1992 Uncompromising proclamation

Americans with Disabilities Act (continued) o o ADA seeks to eliminate the barrier of

Essential Functions o Core responsibilities of a job as distinguished from marginal or incidental

Essential Functions o (continued) To determine what functions are essential, a court will consider:

Essential Functions o (continued) Circumstances that may render a job function essential: n n

Reasonable Accommodation o o If a disabled employee can perform essential functions but needs

Reasonable Accommodation o o o (continued) Employers have expressed concerns about the cost of

Reasonable Accommodation o (continued) Employer’s duty to provide reasonable modifications applies not only to

Undue Hardship o An accommodation that requires significant difficulty or expense on the part

Preference Not Required o o An employer is not required to give preference to

ADA Impacts on Application Process o o o ADA permeates all aspects of the

Drugs and Illnesses o o o A job applicant who uses illegal drugs is

Past Disabilities and Caregivers o o An employer cannot refuse to hire a recovered

Pursuing an ADA Case o o ADA encourages plaintiffs to resolve complaints through mediation

Pursuing an ADA Case o (continued) Potential liabilities include: n n n Compensatory damages

Pursuing an ADA Case o o (continued) ADA encourages employers to attempt reasonable accommodation

Inability to Perform Essential Elements o o Responsibilities of employers to disabled employees and

Mandatory Verification of Employment Status o o Not everyone in our country is legally

Mandatory Verification of Employment Status (continued) o o o To immigrate to the United

Immigration Reform and Control Act o o IRCA—federal law passed in 1986 that enlists

Immigration Reform and Control Act (continued) o o o Purpose of form is to

Immigration Reform and Control Act (continued) o o The employee has 21 days to

Immigration Reform and Control Act (continued) o Penalties for hiring illegal aliens: n Cease

Immigration Reform and Control Act (continued) o o Civil Rights Acts outlaws discrimination based

Resumé Fraud o Misrepresentations contained in a resumé n n n n College attended

Resumé Fraud o o o (continued) Any data found to be false lays the

Occupational Safety and Health Administration o o o OSHA—federal agency that ensures that workplaces

Occupational Safety and Health Administration (continued) o Regulations include n n n Proper labeling

Occupational Safety and Health Administration (continued) o o Agency hires and trains inspectors who

Unions o o Organizations of workers whose mission includes negotiating for higher wages, better

Unions o o o (continued) Collective bargaining agreement— resulting contract between workers and management

National Labor Relations Act o o o NLRA—federal law enacted in 1935 Protects employees’

National Labor Relations Board o o Enforcement of NLRA is done by NLRB Has

Emerging Issues in Employment Law o Negligent hiring o Employee blogging o Handling employee

Slides: 133

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Introduction o o (continued) Can take one of two forms: n Lawsuit by employee against employer n Action brought by the government Employment law is far-reaching COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Fair Labor Standards Act o FSLA—federal law adopted in 1938 to eliminate unfair methods of compensation and labor conditions injurious to the health and efficiency of workers COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Fair Labor Standards Act o Mandates: n n o (continued) Minimum wages Overtime pay (time and one-half) Equal pay for equal work Restrictions on child labor Has been amended and updated numerous times since passage COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Minimum Wage o o o (continued) With few exceptions, employers involved in interstate commerce pay at least the minimum wage set by Congress As of April 2007—$5. 65/hour Prior to 2007, last increase was in 1996 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Minimum Wage o o (continued) States may specify a minimum wage higher than Congress For failure to pay minimum wage, employees can sue for unpaid wages COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Tips Exception o o Employees who routinely receive at least $30/month in tips are exempt from minimum wage requirement Employer can credit a percentage of the tips against the hourly minimum wage COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Tips Exception o o (continued) As of August 2006, up to 59 percent of minimum wage can be replaced by tips Credit cannot exceed the tips actually received by the employee COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Youth Minimum Wage Exception o o o Employers can pay a lower wage to a limited class of young employees The amount is 85 percent of federal minimum wage Employers are prohibited from displacing employees to hire young people at the training wage COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Overtime Pay o Employees who are paid on an hourly basis and who work more than 40 hours in one week are to be paid at least one-and-one-half times their regular pay for hours in excess of 40 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Exempt Employees o o Executive, administrative, and professional employees are exempt from overtime and minimum wage To qualify as exempt: n n Employee must pass a salary test and a duties test Employees paid an hourly wage are nonexempt regardless of their duties COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Executive Employees o o Exempt from minimum wage and overtime requirements To qualify as an executive employee: n n Must be compensated on a salary basis of at least $455/week Primary duty must be managing the business or a department or other subdivision Must regularly direct the work of at least two full-time employees Must have the authority to hire or fire other employees COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Administrative and Professional Employees o Also exempt from minimum wage and overtime requirements o To qualify as administrative: n n n Must be compensated on a salary or fee basis of at least $455/week Primary duty must be performance of office (nonmanual) work directly related to the management or general business operations Includes the exercise of discretion and independent judgment with respect to matters of importance COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Administrative and Professional Employees (continued) o To qualify as professional: n n Must be compensated on a salary or fee basis of at least $455/week Primary duty is the performance of work requiring advanced knowledge in a field of science or learning COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Time Worked o o FSLA identifies what constitutes as time worked for purposes of determining number of hours for which an employee is entitled to hourly pay For determining whether an employee has worked overtime COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Time Worked o (continued) Counts as time worked: n n n Coffee and snack breaks Meetings to discuss daily operations problems Rest periods of 20 minutes or less Travel from job site to job site or to customers Required training Clearing a cash register or totaling receipts after regular work hours COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Split and Partial Shifts o o Employee is entitled to payment only for the hours worked and not for hours off in the middle of the split shift Also, an employee who is sent home partway through a shift because of lack of work is only entitled to payment for hours worked COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Equal Pay for Equal Work o o 1963 amendment to FSLA called Equal Pay Act (EPA) Requires that men and women who do the same job, or jobs that require equal skill, effort, and responsibility, be paid the same or according to the same pay schedule COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Equal Pay for Equal Work o o o (continued) Issue that arises is whether jobs are the same Test is whether they have a “common core” of tasks—are they virtually identical Act protects both men and women; most lawsuits involve women who were paid less than a man COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Comparable Worth o o Jobs requiring different skills and responsibilities that have equal value to the employer Courts have rejected the argument that comparable worth requires equal pay COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Retaliatory Discharge o EPA prohibits an employer from discharging or otherwise discriminating against an employee who has complained or filed a lawsuit COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Restriction on Child Labor o FSLA provides a minimum age for employees n o o 14 Restricts the number of hours they can work Limits the tasks they can perform COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Restriction on Child Labor—Hours o During school year (age 14 to 15): n n n Cannot work more than 18 hours a week Not more than 3 hours on a school day No earlier than 7 a. m. or later than 7 p. m. COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Restriction on Child Labor— Hours (continued) o During vacation: n n n o o Can work up to 8 hours a day Cannot exceed 40 hours a week Not earlier than 7 a. m. or later than 9 p. m. No federal law restricts number of hours a 16 or 17 -year-old can work Some states have additional, stricter hours that further limit the hours young people can work COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Restriction on Child Labor—Tasks o Under age 18 cannot operate: n n n Meat grinders, meat-slicing machines, meat/bone cutting saws, power-driven knives Dough mixers, batter mixers, breadslicing and wrapping machines, cakecutting band saws Delivering messages, food, other goods between hours of 10 p. m. and 5 a. m. COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Enforcement of FSLA o An employee whose rights have been violated has two options in pursuing the case: n n File a claim with the Wage and Hour Division of the United States Department of Labor Commence a lawsuit against the employer seeking damages and attorney fees COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Family and Medical Leave Act o FMLA, effective in 1993, entitles eligible employees to take up to 12 weeks of unpaid leave per year for: n n n Childbirth Adoption Foster placement To care for child, spouse, or parent with serious health condition Employee’s own health situation COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Family and Medical Leave Act (continued) o To be eligible employee must have: n n Worked for at least 12 months before leave starts Worked at least 1, 250 hours during the 12 -month period immediately prior to the leave COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Family and Medical Leave Act (continued) o o To be covered by FMLA, employers must carry at least 50 employees for each working day for at least 20 weeks per year Employee must be reinstated to the position (or one comparable with equal pay and benefits) held before the leave COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Family and Medical Leave Act (continued) o o o If the employee is unable to perform the tasks of the job, the employer is not obligated to reinstate that employee FMLA prohibits retaliation against employees who exercise their rights under the Act An employee who violates company rules during the leave can be terminated COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

At-Will Employment o Employment contract between an employer and an employee is indefinite in duration and can be terminated by either party for any reason or no reason at any time without liability COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Illegal Job Discrimination o Employers cannot discriminate against workers on the basis of protected classes: n n n n n Race Skin color Religion Gender Pregnancy National origin Disability Age—if the employee is at least 40 Union membership COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Illegal Job Discrimination o o (continued) In some locales, sexual orientation has been added as a protected class Cases are based on: n Civil Rights Act of 1964 n Civil Rights Act of 1991 n Americans with Disabilities Act COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Title VII of the Civil Rights Act of 1964 o Makes unlawful: n n To fail or refuse to hire or to discharge any individual or discriminate with respect to compensation, terms, conditions, or privileges of employment Discrimination in promotion, access to training, disciplining, work assignments, shift assignments, and vacation time COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Title VII of the Civil Rights Act of 1964 (continued) o o Disparate treatment—intentional discrimination based on considerations of race, color, religion, gender, or national origins Disparate impact—neutral practices that result, often unintentionally, in unequal treatment COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Title VII of the Civil Rights Act of 1964 (continued) o o o Title VII covers employers with 15 or more employees Created the Equal Employment Opportunity Commission (EEOC) Federal agency that is charged with enforcing Title VII’s mandates COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Filing a Complaint o o o Discrimination charges must be filed with the EEOC has specific rules and procedures for filing and strict time limits within which cases must be pursued EEOC has a sizable backlog and cannot fully investigate every claim COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Remedies o Until 1991, remedies were limited to: n n Injunction precluding the company from continuing offending conduct Court order requiring the employer to adopt a policy forbidding discrimination Attorney’s fees Back pay COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Remedies o o (continued) Back pay refers to the difference between the amount of money the plaintiff would have earned absent discrimination and amount of money the plaintiff actually earned as the victim Prior to 1991, compensatory and punitive damages were available only to a plaintiff who could prove intentional discrimination COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Punitive Damages o o Can be awarded only when the employer engaged in illegal discrimination with “malice or with reckless indifference to the federally protected rights” Requires proof of evil motive or intent or callous indifference COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Defense of Bona Fide Occupational Qualifications o BFOQ relieves an employer from liability for disparate treatment whereby selection of an employee is reasonably necessary for the normal operation of the business COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Defense of Bona Fide Occupational Qualifications o Two elements necessary to qualify: n n o (continued) Job must require a worker of a particular gender, religion, age, or national origin Such requirement must be necessary to the essence of the business’ operation BFOQ is not a defense to a claim of racial discrimination COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Prohibited and Permitted Interview Questions o o o Law bars employers from asking certain questions at employment interviews Permissible questions relate to the job the candidate is seeking Prohibited questions seek information about a candidate’s potential membership in a protected class COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Prohibited and Permitted Interview Questions (continued) o Ban applies to all aspects of the hiring process n n n Application form Interview Testing materials COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Race o o o One of the grounds on which Title VII outlaws discrimination Main objective was to eliminate discrimination against blacks Bars “discrimination preference for any racial group, minority or majority” COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Race o Outlawed discrimination includes: n n o (continued) Refusal to hire Resistance to promote Unjustified firings Terminating a white employee for associating with a black colleague Employer can defend against discriminatory firing by establishing a legitimate nondiscriminatory reason for firing COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Racially Hostile Work Environment o An employment atmosphere that permits racially derogatory comments, jokes, and conduct has been determined to significantly and adversely affect the psychological well -being of an employee COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

National Origin o o o Another protected class Refers to the country where people were born or from which their ancestors came Also protects “hyphenated-Americans” COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

National Origin and Accent Discrimination o o “Accent and national origin are inextricably intertwined” Unlawful discrimination does not occur when a plaintiff’s accent affects ability to perform the job effectively COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Religion o o Accommodating religion-based requests for days off can be complicated Employer has an affirmative duty to attempt to accommodate religious observances and practices of employees COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Reasonable Accommodations o o Requires an employer to give unpaid time off for religious holidays if the employer can reasonably dispense with the employee’s services An employer might provide a means of communication between employees to find substitutes COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Gender o o An employer cannot refuse to grant women or men a benefit of employment based on their gender Hiring only one gender for a particular job generally constitutes discrimination COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o o Artificial barriers that have held women and minorities back from promotion to management Civil Rights Act of 1991 established Glass Ceiling Commission COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o o (continued) Report that was issued in 1995 concluded that substantial barriers exist at the highest levels of business White males hold the vast majority of all senior management positions of vice president or higher COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o (continued) Major contributors: n n Persistent bias Negative stereotypes Prejudice concerning women and racial minorities Inadequate laws COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o (continued) Commission’s recommendations for removing barriers: n n n CEO must demonstrate commitment to diversity Affirmative action should be used as a tool to ensure equal opportunity Senior managers should be sought from nontraditional sources and backgrounds COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o (continued) Commission’s recommendations: n n n (continued) Businesses should prepare minorities and women for senior positions Businesses should provide training to sensitize employees about gender, racial, ethnic, and cultural differences Recognizing that women are still primarily responsible for home and family, companies should adopt policies that accommodate the balance between work and family COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Glass Ceiling o o (continued) Companies should review their policies and practices Modify them where needed to facilitate the achievement of diversity and the advancement of all segments of the workforce COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Gender-Differentiated Grooming Standards o o A number of cases involve male employees fired for failing to comply with grooming standards imposed on men but not women Law is now clear that minor differences in an employer’s appearance rules for men and women reflect customary modes of grooming for one sex but not the other do not violate Title VII COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Gender-Differentiated Grooming Standards (continued) o o Objective of Title VII is to equalize employment opportunities “An employer is permitted to exercise legitimate concern for the business image created by the appearance of its employees” COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Sexual Harassment o (continued) Includes two types of illegal action: n n Quid pro quo—unwelcome sexual advances or requests for sexual favors in return for job benefits Hostile environment—verbal or physical conduct of a sexual nature that creates an intimidating, hostile, or offensive work environment COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Same Gender Sexual Harassment o o o Sexual harassment is most often a male harassing a female Can also be perpetrated by a female against a male Can also occur between two people of the same gender COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Unwelcome Conduct o o Critical factor for sexual harassment is that the activity be unwelcome by the employee and this fact is known by the harasser Consent alone does not establish that the conduct is welcome COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Unwelcome Conduct o o (continued) In some circumstances, the unwelcome nature of the conduct can be implied from the nature of the activity Other times, the conduct’s offensiveness will be less clear and the employee must relay that it is not appreciated COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Employer Liability o Employers often try to avoid liability by claiming that a supervisor’s harassing conduct should not be attributable to the employer COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Employer Liability—Quid Pro Quo o o Harasser’s employer is liable The theory is that the employer is liable for the wrongful acts of an employee done in furtherance of the employee’s job responsibilities COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Employer Liability—Hostile Environment o An employer can escape liability if three elements are satisfied: n n n No adverse employment action was taken against the employee The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior The plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Sexual Harassment by Coworkers o o An employer may be liable for sexual harassment when coworkers harass an employee To be liable, the employer must be aware of the harassment n n Occurs openly and blatantly Harassed employee reports it to a supervisor COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Sexual Harassment by Customers o An employer who takes prompt and substantial action to protect employees from customer harassment will avoid liability COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Outside Scope of Employment o If sexual harassment conduct occurs outside the scope of a supervisor’s employment responsibilities and not in furtherance of the employer’s business, the employer will not be liable COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Policies and Complaint Procedures o o Employers should develop a company policy clearly establishing that sexual harassment will not be tolerated Posted and published to all employees COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Policies and Complaint Procedures (continued) o o Should include a complaint procedure that authorizes employees to file complaints with high-level employees not in their line of supervision Complaints should be treated seriously and investigated thoroughly COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Policies and Complaint Procedures (continued) o When warranted, appropriate and prompt remedial action should be taken n n Quid pro quo—changing the work site of the harasser, terminating the harasser, and denying promotions and raises Hostile environment—mandating that the objectionable conduct stop, penalizing those who caused the hostile environment, and requiring employee training about sexual harassment COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pregnancy o o o Pregnant women have historically been subject to termination They now have protection against discrimination under Title VII Adverse job action can only be taken based on the inability to work COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pregnancy o (continued) Employer cannot terminate a pregnant woman whose doctor requires her not to work if the employer allows workers with other disabilities to take a leave of absence COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pregnancy o (continued) Business necessity n n If an employer can show that a business necessity renders pregnant employees unfit Employer can require pregnant employees to take a leave of absence pending wellness following birth COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Reinstatement after Giving Birth o o Policies must be the same as for other employees returning to work after absences due to other temporary disabilities Determination of recovery time should be made in the same manner adopted for other disabilities COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Abortion Issue o Discharging an employee on the basis of a statement that she is considering an abortion, has had one, or intends to have one constitutes illegal pregnancy discrimination COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Age o o o The American workforce has aged Issues of age discrimination arise with greater frequency and take on heightened importance Employer may prefer a 25 -year-old over a 60 -year-old for a job COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Age o o (continued) If an employer opts to not to hire or fires an older worker because of age, employer will be liable for age discrimination Age Discrimination in Employment Act (ADEA) bars an employer from discriminating against an employee on the basis of being 40 years of age or older COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Age o o (continued) ADEA attempts to balance the needs of seasoned workers with those of the business community ADEA does not mandate employers hire people over 40 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Age o o (continued) Requires employers to make employment decisions based on legitimate reasons other than age— qualifications An employer can refuse to hire older workers if it can show that youth is a legitimate business necessity COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Retaliatory Discharge o o It is llegal for an employer to retaliate against an employee who files a complaint with EEOC Only employees can sue for unlawful retaliation COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Americans with Disabilities Act o o o ADA became effective in 1992 Uncompromising proclamation of this country’s commitment to equal opportunity for the disabled 43 million Americans with disabilities COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Americans with Disabilities Act (continued) o o ADA seeks to eliminate the barrier of those stereotypes for disabled persons who are able to perform on the job ADA applies only to employers with a minimum of 15 employees COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Essential Functions o (continued) To determine what functions are essential, a court will consider: n n n The employer’s judgment as to which functions are essential Written job descriptions drafted before the job was advertised or interviewing began Amount of time on the job allocated to performing the function COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Essential Functions o (continued) Circumstances that may render a job function essential: n n Reason the position exists is to perform that function Only a limited number of employees are available who can perform the task Function may be highly specialized Reason for hiring a particular person is their expertise or ability to perform that duty COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Reasonable Accommodation o o If a disabled employee can perform essential functions but needs reasonable accommodations, the employer may be obligated to make the adjustment Employers are not required to provide personal use items COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Reasonable Accommodation o o o (continued) Employers have expressed concerns about the cost of accommodations Studies show that over 70 percent of accommodations cost less than $500 50 percent cost less than $50 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Reasonable Accommodation o (continued) Employer’s duty to provide reasonable modifications applies not only to applicants for employment but also to employees already on staff who are or become disabled and cannot perform their original jobs without some restructuring COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Undue Hardship o An accommodation that requires significant difficulty or expense on the part of the employer, or major modification of the employer’s business, taking into account such factors as the nature of the business, cost of accommodation, and the business’ resources COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Preference Not Required o o An employer is not required to give preference to a disabled person, but can instead hire the most qualified applicant Employer cannot make employment decisions based on inability to perform nonessential (marginal tasks) functions of the job COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

ADA Impacts on Application Process o o o ADA permeates all aspects of the hiring decision During an interview, an employer cannot ask applicants about the nature of a disability An employer cannot require an applicant to submit to a medical exam prior to extending a job offer COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Drugs and Illnesses o o o A job applicant who uses illegal drugs is not protected by ADA does not require a restaurateur to hire as a food handler a person with an infectious disease Persons with HIV/AIDS are considered disabled for purposes of protection under ADA COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Past Disabilities and Caregivers o o An employer cannot refuse to hire a recovered cancer patient Also protected are people who have a relationship with or are caregivers for a disabled person (spouse or parent) COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pursuing an ADA Case o o ADA encourages plaintiffs to resolve complaints through mediation rather than litigation Potential liability to defendant is significant COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pursuing an ADA Case o (continued) Potential liabilities include: n n n Compensatory damages Punitive damages Attorney’s fees Expert witness fees Reinstatement (if plaintiff was wrongly terminated) Back pay COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Pursuing an ADA Case o o (continued) ADA encourages employers to attempt reasonable accommodation For plaintiffs to win punitive damages, they must prove that the employer acted with malice or reckless indifference to the rights guaranteed under ADA COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Inability to Perform Essential Elements o o Responsibilities of employers to disabled employees and applicants are triggered only when a disabled person is able to perform essential elements of the job with or without reasonable accommodation ADA does not protect a person who cannot perform essential elements COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Mandatory Verification of Employment Status o o Not everyone in our country is legally entitled to work here Entrance to this country is restricted by law COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Mandatory Verification of Employment Status (continued) o o o To immigrate to the United States to attend school, work, or otherwise live here requires permission from the Immigration and Naturalization Service (INS) Immigrant—citizen of another country who enters this country with authorization from INS Illegal alien—one who enters this country without necessary approval COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Immigration Reform and Control Act o o IRCA—federal law passed in 1986 that enlists employers in the effort to prevent illegal aliens from working in this country An employer must complete and retain an Employment Eligibility Verification Form (Form I-9) COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Immigration Reform and Control Act (continued) o o o Purpose of form is to verify that the individual is authorized to work in the United States The employee must present identification and proof that he has permission from the INS to work here The employer is required to examine the document(s) to determine whether it “reasonably appears on its face to be genuine” COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Immigration Reform and Control Act (continued) o o The employee has 21 days to produce necessary documents When reviewing documents, it is the employer’s responsibility to check expiration dates COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Immigration Reform and Control Act (continued) o Penalties for hiring illegal aliens: n Cease and desist order n Fine that ranges from $250 to $2, 000 per unauthorized alien for the first offense n Fines can range up to $5, 000 per illegal worker for a second offense n Up to $10, 000 per illegal worker for a third offense COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Immigration Reform and Control Act (continued) o o Civil Rights Acts outlaws discrimination based on national origin; does not include noncitizens as a protected class Employer cannot refuse to hire, based on citizenship status, a qualified alien authorized to work COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Resumé Fraud o Misrepresentations contained in a resumé n n n n College attended Degrees received Prior employers Prior job responsibilities Salary history Certifications earned Virtually any other factor contained in a vita COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Resumé Fraud o o o (continued) Any data found to be false lays the foundation for a civil case in fraud or criminal case for perjury Penalties for perjury include jail, fines, and probation Consequences for civil fraud include reimbursement to employer of expenses incurred as a result of the false information COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Occupational Safety and Health Administration o o o OSHA—federal agency that ensures that workplaces in the United States are safe Enforces laws passed by Congress as well as regulations adopted by OSHA Some states adopt their own safety standards, which can be more stringent than OSHA’s COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Occupational Safety and Health Administration (continued) o Regulations include n n n Proper labeling and storing of hazardous materials Mandated safety devices for meat cutting machinery Procedures to prevent spread of diseases COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Occupational Safety and Health Administration (continued) o o Agency hires and trains inspectors who visit workplaces to ensure compliance Trade associations of restaurants and hotels provide training and awareness materials COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Unions o o Organizations of workers whose mission includes negotiating for higher wages, better benefits, greater job stability, and safer workplaces Collective bargaining—process whereby representatives of the union negotiate with representatives of management COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

Unions o o o (continued) Collective bargaining agreement— resulting contract between workers and management Membership customarily enhances the bargaining power of workers Management usually prefers a nonunionized workplace COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

National Labor Relations Act o o o NLRA—federal law enacted in 1935 Protects employees’ rights to form, join, or assist a union The employer violates NLRA if it refuses to hire an applicant because of union activity or retaliates against a union activist COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.

National Labor Relations Board o o Enforcement of NLRA is done by NLRB Has authority to prevent employers from engaging in unfair labor practices COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED.