Posted: April 24th, 2025

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Employment Law for Human Resource Practice 6th Ed., David J. Walsh, ISBN: 978-0357233252, Publisher: Cengage Learning, 2019.

Employment Law
for Human Resource Practice
Sixth Edition

DAVID WALSH

9 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

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Chapter 1 – Overview of Employment Law
Chapter Outline (1 of 2)

U.S. Employment Law is a Fragmented Work in Progress

Sources of Employment Law

Substantive Rights Under Employment Laws

Determining Which Employment Laws Apply

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Chapter 1 – Overview of Employment Law
Chapter Outline (2 of 2)

Historical Development of U.S. Employment Law

Procedures for Enforcing Employment Laws

Enforceability of Arbitration Agreements

Remedies for Violations of Employment Laws

The Role of Managers in Legal Compliance

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U.S. Employment Law Is a Fragmented
Work in Progress

Employment Law is a patchwork of federal, state and local laws

Whether and how laws apply depends on:

Whether employees work for the government or a private employer

Whether they have union representation

The size of their employer

Employment law is dynamic, and changes daily

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Sources of Employment Law (1 of 3)

Constitutions

These address the relationships between federal and state government, and between governments and citizens; state action must be present if an employee seeks to sue

In practical terms, only employees of government agencies (not employees of private corporations) may find constitutional protection in the workplace

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Sources of Employment Law (2 of 3)

Statutes

Laws affecting employment: Title VII of the Civil Rights Act, the Labor Relations Act, the Equal Pay Act; more

Executive Orders

Example: EO #11246 prohibiting discrimination by federal government contractors

Regulations, Guidelines, Administrative Decisions

Example: OSHA safety standards

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Sources of Employment Law (3 of 3)

Common Law

Courts are sometimes asked to resolve disputes over matters that have not been objects of legislation or regulation

Over time, courts have recognized common law claims to enforce private agreements and to remedy certain types of harm

Examples: Courts interpret contracts, decide tort claims

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Substantive Rights Under Employment Laws (1 of 2)

The starting point for determining substantive rights is the doctrine of Employment at Will

Many people believe they cannot be fired if they are doing a good job, but this is not true

Unless the employee has an employment contract for a certain term, the employer can fire the employee at any time for any reason, unless specifically prohibited by law

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Substantive Rights Under Employment Laws (2 of 2)

Nondiscrimination and Equal Employment Opportunity

Freedom to Engage in Concerted Activity and Collective Bargaining

Terms and Conditions of Employment That Meet Minimum Standards

Protection of Fundamental Rights

Compensation for Certain Types of Harm

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Determining Which Employment Laws Apply (1 of 2)

Public Sector or Private Sector Employment

Unionized or Nonunion Workplace

Employer Size

Employees are counted by the payroll method

Geographic Location

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Determining Which Employment Laws Apply (2 of 2)

Government Contracts

Federal, state, and local governments sometimes use the contracting process as leverage to get employers to implement desired workplace practices

Industry and Occupation

Most employment laws apply to any industry, but some are narrowly targeted

Example: The Omnibus Transportation Employees Testing Act mandates extensive drug and alcohol testing of employees regulated the Department of Transportation

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Historical Development of U.S. Employment Law

1900: Essentially no employment law existed

1900s: State workers’ compensation laws

1930s: National Labor Relations Act

1960s: Title VII, Civil Rights Act; Age Discrimination Act; Equal Pay Act

1980s: Common law claims such as wrongful discharge

1990s: Americans with Disabilities Act

2000: Genetic Information Nondiscrimination Act

Employment laws reflect the work of social movements

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Procedures for Enforcing Employment Law (1 of 7)

Many enforcement procedures exist for bringing and resolving claims for violations

What Does an Employee Decide to Do When She Believes That Her Rights Were Violated?

Are the rights enforced by a government agency?

Seeking to enforce rights is expensive, protracted, uncertain and an emotionally draining process

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Procedures for Enforcing Employment Law (2 of 7)

How Long Does the Employee Have to Bring a Case?

What is the limitations period?

Does equitable tolling apply?

For pay discrimination cases, the Lily Ledbetter Fair Pay Act established that each discriminatorily low paycheck is a separate violation that starts the limitations period anew

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Procedures for Enforcing Employment Law (3 of 7)

Can a Lawsuit Be Brought? By Whom?

Most employment laws enable employees to enforce their rights through lawsuits against their employers

When a lawsuit is filed, considerable managerial time is spent responding to requests for records, answering interrogatories, and the like

Best advice: Answer questions truthfully and succinctly and have documentation to back you up

Settlements are a common outcome of litigation

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Procedures for Enforcing Employment Law (4 of 7)

Can a Lawsuit be Brought? By Whom? (cont)

A federal court case begins at the district court

Many cases filed against employers are dismissed without a trial pursuant to a summary judgment

This means that even if what plaintiff says is true, it does not state a legal claim; plaintiff bears the burden of proof

These decisions can be appealed to a federal appeals court, and to the Supreme Court if it grants certiorari

Judges follow stare decisis, for consistency

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Procedures for Enforcing Employment Law (5 of 7)

Class-Action Lawsuits

Most lawsuits are brought by one or a few named plaintiffs for themselves

In class-action lawsuits, plaintiffs sue on behalf of themselves and some larger group, alleging similar injuries

Plaintiffs must prove commonality among the class

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Procedures for Enforcing Employment Law (6 of 7)

Is There an Administrative Prerequisite to a Lawsuit?

Some employment laws require that a charge be filed with an administrative agency, which seeks conciliation to resolve the dispute before the employee can go to court

If conciliation fails, the EEOC, for example, issues a right to sue letter, permitting the employee to sue in court

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Procedures for Enforcing Employment Law (7 of 7)

Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding?

The law is changing regarding the answer to this question

An employer may escape liability for harassment by a supervisor if an employee unreasonably refuses to avail herself of the employer’s complaint procedure

A more fundamental change has been the rise of alternative dispute resolution (ADR) procedures to replace lawsuits, including mediation and arbitration

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Enforceability of Arbitration Agreements (1 of 2)

Employment agreements requiring employees to arbitrate rather than sue are generally enforceable

Such agreements are governed by the Federal Arbitration Act (FAA), except for transportation workers

These agreements are subject to contract defenses:

Contracts are unconscionable when the process involves a “take it or leave it” offer by a more powerful party (procedurally unconscionable), and its terms are largely one-sided (substantively unconscionable)

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Enforceability of Arbitration Agreements (2 of 2)

Courts have also considered whether adequate notification was given of the arbitration agreement

Was there a clear offer and acceptance? There must be a binding agreement, not merely a company policy

Generally, employees should read and sign the agreements

Practical Considerations: Would you advise an employer to use arbitration agreements? Why or why not?

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Remedies for Violations of Employment Laws

Remedies available in employment cases include:

Attorneys’ fees

Court orders

Back pay

Front pay

Reinstatement

Hiring

Liquidated damages (for serious, intentional violations)

Compensatory damages (including pain and suffering), and

Punitive damages (intended to punish the employer)

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The Role of Managers in Legal Compliance (1 of 3)

Recognize, analyze and deal effectively with employment law issues

Put in place sound policies and practices that PREVENT legal problems from arising in the first place

Enforce compliance with established law and develop strategies for dealing with unclear legal issues

Know when to seek legal advice

Define the employer’s legal compliance strategy

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The Role of Managers in Legal Compliance (2 of 3)

Practical Considerations: Which of the following legal compliance strategies would you advise an employer to adopt? Why?

“Pushing the envelope” in areas of legal uncertainty or erring on the side of caution?

Doing no more than the minimum required by the law or going well beyond that?

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The Role of Managers in Legal Compliance (3 of 3)

Practical Considerations: (cont)

Responding to legal problems as they arise or proactively investing in policies and practices designed to avoid legal problems?

Litigating aggressively or attempting to work things out with employees who believe that they have been wronged?

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Chapter 2 – The Employment Relationship

Who is an employee?

Who is the employer?

Does an employment relationship even exist?

The answers may surprise you

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Employment Law
for Human Resource Practice
Sixth Edition

DAVID WALSH

9 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

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Chapter 4 – Recruitment
Chapter Outline

Recruitment Methods

Proving Discrimination in Recruitment: Statistical Evidence

Affirmative Action

Recruiting Foreign Nationals for U.S. Employment

Application Process

Statements by Employers

Statements by Employees

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Chapter 4 – Recruitment

To establish an employment relationship, an employer must first communicate information about the availability of an employment opportunity, and persons interested in pursuing the opportunity must make their interest known to the employer

These essential first steps in the process of becoming employed are recruitment

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Recruitment Methods (1 of 5)

Want Ads and Job Announcements

Typical early steps are to:

Produce documents that announce the job

Describe the job and its requirements; and

Tell prospective applicants what they must do to apply

These documents are printed in newspapers or professional magazines posted on bulletin boards and the Internet, or otherwise made available

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Recruitment Methods (2 of 5)

Want Ads and Job Announcements (cont)

Title VII of the CRA is explicit about employers’ obligations in producing such materials:

It is unlawful for an employer to print or publish such a notice indicating any preference, limitation, specification or discrimination, based on race, color, religion, sex, or national origin

The wording of such ads must be a neutral message

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Recruitment Methods (3 of 5)

Employment Agencies

These agencies are covered by antidiscrimination laws and are expressly prohibited from discriminating against employees in referrals or in any other manner

The difficulty is that they are businesses, and do well when they make their customers happy, so may be tempted to cater to such preferences

Employers must not request that such agencies refer only employees with particular protected class characteristic, or attempt to obtain such information about applicants

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Recruitment Methods (4 of 5)

Nepotism and Word-of-Mouth Hiring

Nepotism refers to favoritism toward family members and other relatives

Nepotism is not a per se violation of Title VII, but when the work force is predominantly white, nepotism operates to exclude minorities as effectively as any intentionally discriminatory policy

Word-of-Mouth recruiting has similar potential to result in discrimination

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Recruitment Methods (5 of 5)

Enlisting Day Laborers

Day laborers are those who, rather than having a fixed place of employment, perform temporary work such as gardening, tree trimming, yard cleanup, moving, construction work, house cleaning and elder care

Many, but not all, day laborers find work outside home supply stores, etc., because they are undocumented immigrants ineligible to work in the U.S.

The situation does not excuse employers from basic legal obligations such as the payment of promised wages

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Proving Discrimination in Recruitment:
Statistical Evidence (1 of 2)

Unless recruiting efforts reach a broad spectrum of the available workforce and successfully convey the employer’s sincere desire that all qualified candidates apply, the most careful and unbiased selection process will not result in equal employment opportunity

Discrimination in recruitment is especially insidious and difficult to combat

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Proving Discrimination in Recruitment:
Statistical Evidence (2 of 2)

Cases challenging discriminatory recruitment practices are often brought by the EEOC

Discrimination affects the applicant pool in a way that makes the discrimination harder to detect

There may be a “pattern or practice” of intentional discrimination; women and minorities may be excluded from even applying, knowing the employer is hostile to them

Statistical evidence requires comparing the applicant pool of the employer to the relevant labor market

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Affirmative Action (1 of 4)

Affirmative action has been defined as:

“those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity”

Firms that do business with the federal government must comply with Executive Order 11246, requiring them to have a nondiscrimination clause in their contracts, and to affirmatively promote equal opportunity

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Affirmative Action (2 of 4)

Similar requirements apply under The Rehabilitation Act of 1973, and VEVRAA

Compliance is monitored by the Office of Federal Contract Compliance Programs (OFCCP)

An affirmative action program may be required by a consent decree

For most employers, adoption of an affirmative action plan is voluntary and requires a written affirmative action plan

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Affirmative Action (3 of 4)

The affirmative action plan must include:

Reasonable Self-Analysis

Do employment practices exclude certain groups?

Reasonable Basis for Affirmative Action

Does underutilization exist?

Practical Considerations: To analyze their workforces and determine whether affirmative action is needed, employers must document the protected class characteristics of their employees. How can this be accomplished in an effective and legal manner?

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Affirmative Action (4 of 4)

The affirmative action plan must include: (cont)

Reasonable Affirmative Actions

The plan sets goals for improvement in the utilization of women and minorities and timetables or achieving those goals, which are reasonably obtainable through good faith effort

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Recruiting Foreign Nationals for U.S. Employment (1 of 2)

Visa Programs

Foreign nationals who do not have a green card must obtain visas permitting them to work in the U.S.

Visa classifications include:

H-1B visas (granted to those in specialty occupations)

H-1B dependent employers must meet additional requirements

H-2 visas (for foreign nationals working temporarily)

L-1 visas (to temporarily transfer staff from foreign facilities to operations in the U.S.)

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Recruiting Foreign Nationals for U.S. Employment (2 of 2)

Labor Trafficking

Labor trafficking has been defined as the “recruitment, harboring, transportation, provision, or obtaining of a person” for the purpose of obtaining his or her labor or services, “through the use of force, fraud, or coercion,” and that subjects the person “to involuntary servitude, peonage, debt bondage, or slavery”

The common elements in trafficking cases are recruitment wit false promises, indebtedness, isolation, dependence on the employer, and severe mistreatment

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Application Process (1 of 8)

By and large, employers are free to decide

Whether applications will be accepted from anyone

What must be done to apply

How long applications will be accepted; and

How long submitted applications will remain valid

Practical Considerations: What, if any, legal obligation do employers have to reasonably accommodate disabled job applicants during the recruitment process? Which types of modifications to the recruiting process might be called for?

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Application Process (2 of 8)

Application forms and other records produced in the hiring process must be kept for at least one year

The federal governments definition of applicant is broad

An internet applicant is one who expresses interest in employment via the internet

Preemployment Inquiries

Employers must not ask questions whose answers reveal the protected class characteristics of job candidates (for example, on applications, during interviews, or during informal chatting with the applicant)

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Application Process (3 of 8)

Preemployment Inquiries (cont)

Inadvisable preemployment inquiries fall into four general categories; Employers:

Should not directly inquire about protected class characteristics

Should not indirectly inquire about protected class characteristics

Should avoid questions about requirements or criteria that are not uniformly applied to all job candidates

Should avoid questions about requirements that have a high probability of producing disparate impact

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Application Process (4 of 8)

Preemployment Inquiries (cont)

Medical Inquiries Prior to a Conditional Offer of Employment

The ADA differs from other federal antidiscrimination laws in directly prohibiting preemployment inquiries that might reveal the existence, nature, or severity of an applicant’s disability

Employers must refrain from seeking medical information from all applicants, disabled or not

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Application Process (5 of 8)

Preemployment Inquiries (cont)

Medical Inquiries Prior to a Conditional Offer of Employment (cont)

Medical inquiries include questions about disabilities, medical and psychological conditions, medical histories, medications taken and workers’ compensation claims filed

Employers should seek that information ONLY after job candidates have been conditionally offered employment based on their qualifications

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Application Process (6 of 8)

Preemployment Inquiries (cont)
Statements by Employers

Recruitment entails extracting information from job candidates, but also providing information and attempting to persuade candidates to accept job offers

Fraud, negligent misrepresentation and breach of contract may result from misrepresentations and unfulfilled promises

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Application Process (7 of 8)

Preemployment Inquiries (cont)

Statements by Employers (cont)

Practical Considerations: To the extent that doing so is permitted by state law, would you recommend that an employer examine job candidates’ social media activity in the recruiting process? Why or why not? If you think that this approach should be used, how should it be implemented?

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Application Process (8 of 8)

Preemployment Inquiries (cont)
Statements by Employees

In cases where employers must defend their refusal to hire, courts regard refusal to hire due to falsification or omission by the applicant as a legitimate, nondiscriminatory reason for not hiring

Cases involving after-acquired evidence of deception may result in dismissal for the deception, even after the employee has filed a valid claim

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Next Class:

Chapter 5 – Background Checks, References, and Verifying Employment Eligibility

Must you check the background of every applicant? What, specifically, do you need to check?

Why?

The answers to these questions and more are next

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Next Class:

Chapter 6 – Employment Tests

When may you use tests to screen applicants?

What kinds of tests can you use, and what kinds are prohibited?

The answers to these questions and more are next

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