Chapter 7 Legally Selecting Employees. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Legally Selecting Employees Employee.

Chapter 7Chapter 7

Legally Legally Selecting Selecting EmployeesEmployees

© 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc.All Rights Reserved

Legally Selecting EmployeesLegally Selecting Employees

Employee Selection Employee Selection Discrimination In The Selection Discrimination In The Selection

Process Process Verification Of Eligibility To Work Verification Of Eligibility To Work The Employment Relationship The Employment Relationship


In This Chapter, You Will Learn:In This Chapter, You Will Learn:

1.1. To utilize job descriptions, To utilize job descriptions, qualifications, and other tools for qualifications, and other tools for legally selecting employees. legally selecting employees.

2.2. To avoid charges of discrimination To avoid charges of discrimination by knowing the classes of workers by knowing the classes of workers who are protected under the law. who are protected under the law.


In This Chapter, You Will Learn:In This Chapter, You Will Learn:

3.3. To understand the procedure for To understand the procedure for verifying the work eligibility of potential verifying the work eligibility of potential employees before offering them employees before offering them employment. employment.

4.4. To distinguish the rights of both To distinguish the rights of both employers and employees under the at-employers and employees under the at-will employment doctrine. will employment doctrine.

5.5. To understand the concept of collective To understand the concept of collective bargaining and the legal obligations bargaining and the legal obligations when interacting with labor unions. when interacting with labor unions.


Employee SelectionEmployee Selection

Job DescriptionsJob Descriptions Job QualificationsJob Qualifications

Bona Fide Occupational Qualifications (BFOQ)Bona Fide Occupational Qualifications (BFOQ) Applicant ScreeningApplicant Screening

ApplicationsApplications InterviewsInterviews Preemployment TestingPreemployment Testing Background ChecksBackground Checks ReferencesReferences Placing Classified AdvertisementsPlacing Classified Advertisements



Legalese:Legalese:

Job Description Job Description - A written, itemized - A written, itemized listing listing of a specific jobof a specific job’’s basic s basic responsibilities responsibilities and reporting and reporting relationships.relationships.



Legalese:Legalese:

Job Qualifications Job Qualifications - The knowledge or - The knowledge or skill(s) required to perform the skill(s) required to perform the

responsibilities and tasks listed in a responsibilities and tasks listed in a job job description. description.



Legalese:Legalese:

Bona Fide Occupational Qualification Bona Fide Occupational Qualification (BFOQ) (BFOQ) - A job qualification, - A job qualification,

established in good faith and established in good faith and fairness, fairness, that is necessary in that is necessary in order to safely or order to safely or adequately adequately perform the job.perform the job.


Bona Fide Occupational Bona Fide Occupational QualificationQualification

Physical attributes necessary to complete the Physical attributes necessary to complete the duties of the jobduties of the jobThe ability to lift a specific amount of weightThe ability to lift a specific amount of weightEducationEducationCertificationsCertificationsRegistrationsRegistrationsLicensingLicensingLanguage Skills Language Skills Knowledge of equipment operationKnowledge of equipment operationPrevious experience Previous experience Minimum age requirementsMinimum age requirements


Analyze the Situation 7.1Analyze the Situation 7.1

Cruz Villaraigosa owns and Cruz Villaraigosa owns and manages The Cruz Cantina, a lively manages The Cruz Cantina, a lively bar and dance club that serves bar and dance club that serves Cuban and other Caribbean-style Cuban and other Caribbean-style cuisine. The club has a dance floor, cuisine. The club has a dance floor, small tables, and serves outstanding small tables, and serves outstanding food. food.



Cruz's clientele consists mainly of 20-40 Cruz's clientele consists mainly of 20-40 year-old males, who frequent the Cantina for year-old males, who frequent the Cantina for its good food, as well as the extremely low-its good food, as well as the extremely low-cut, Spanish-style blouses worn by the young cut, Spanish-style blouses worn by the young female Servers who bring the food and drinks female Servers who bring the food and drinks to the tables. The Cruz Cantina advertises to to the tables. The Cruz Cantina advertises to women and families, as well as to young men, women and families, as well as to young men, but the reputation of the facility is predicated but the reputation of the facility is predicated upon the physical attractiveness of the upon the physical attractiveness of the women whom Cruz has hired to serve the women whom Cruz has hired to serve the guests, and the uniforms these Servers wear. guests, and the uniforms these Servers wear.



Cruz employs women and men of all Cruz employs women and men of all races and nationalities, but all Food and races and nationalities, but all Food and Drink Servers are female. When Cruz elects Drink Servers are female. When Cruz elects not to hire a young man for a job as a not to hire a young man for a job as a server, Cruz is contacted by the young server, Cruz is contacted by the young man's attorney. The attorney alleges the man's attorney. The attorney alleges the young man has been illegally denied a young man has been illegally denied a server's job at the Cantina because of his server's job at the Cantina because of his gender, and that sex cannot be a bona fide gender, and that sex cannot be a bona fide occupational qualification for a Food and occupational qualification for a Food and Beverage Server position.Beverage Server position.



Cruz replies that her operation employs Cruz replies that her operation employs both men and women, but that one necessary both men and women, but that one necessary job qualification for all servers is that they be job qualification for all servers is that they be ““attractive to men,attractive to men,”” and that the qualification of and that the qualification of ““attractiveness to menattractiveness to men”” is a legitimate one, is a legitimate one, given the importance of maintaining the given the importance of maintaining the successful image, atmosphere, and resulting successful image, atmosphere, and resulting business the Cantina enjoys. She maintains that business the Cantina enjoys. She maintains that the servers not only serve food and beverages, the servers not only serve food and beverages, but also play a role in advertising and marketing but also play a role in advertising and marketing the unique features of the Cantina. the unique features of the Cantina.



Cruz also maintains that attractiveness is Cruz also maintains that attractiveness is indeed an occupational characteristic that indeed an occupational characteristic that she can use to promote her facility, citing she can use to promote her facility, citing modeling agencies and TV casting agents modeling agencies and TV casting agents as examples of employers who routinely as examples of employers who routinely use attractiveness as a means of selecting use attractiveness as a means of selecting employees. Cruz states that her right to employees. Cruz states that her right to choose employees she feels will best choose employees she feels will best benefit her business is unconditional, as benefit her business is unconditional, as long as she does not unfairly discriminate long as she does not unfairly discriminate against a protected class of workers.against a protected class of workers.



1.1. Do you think that the requirement that Do you think that the requirement that servers be servers be ““attractive to malesattractive to males”” is a bona is a bona fide occupational requirement and fide occupational requirement and ““necessarynecessary”” for the continued successful for the continued successful operation of The Cruz Cantina? operation of The Cruz Cantina?

2.2. If you were on a jury, would you allow Cruz If you were on a jury, would you allow Cruz to hire female servers exclusively, if she so to hire female servers exclusively, if she so desired? Why or why not? desired? Why or why not?

3.3. What damages, if any, do you feel a male What damages, if any, do you feel a male job applicant, not selected for employment job applicant, not selected for employment at the Cantina, would be entitled to? at the Cantina, would be entitled to?



Legalese:Legalese:

Negligent Hiring Negligent Hiring - Failure on the part - Failure on the part of an of an employer to exercise employer to exercise reasonable care reasonable care in the selection of in the selection of employees.employees.



Legalese:Legalese:

Defamation Defamation - False statements that - False statements that cause cause someone to be held in someone to be held in contempt, contempt, lowered in the lowered in the estimation of the estimation of the community, or to community, or to lose employment lose employment status or earnings status or earnings or otherwise suffer a or otherwise suffer a damaged damaged reputation.reputation.


Discrimination in the Selection Discrimination in the Selection ProcessProcess

Civil Rights Act of 1964, Title VIICivil Rights Act of 1964, Title VII Americans with Disabilities ActAmericans with Disabilities Act Age Discrimination in Employment Age Discrimination in Employment

ActAct



Legalese:Legalese:

Interstate Commerce Interstate Commerce - Commercial - Commercial trading trading or the transportation of or the transportation of persons or persons or property between or property between or among states.among states.



Legalese:Legalese:

Affirmative Action Affirmative Action - A federally - A federally mandated mandated requirement that requirement that employers who meet employers who meet certain criteria certain criteria must actively seek to must actively seek to fairly employ fairly employ recognized classes of recognized classes of workers. (Some workers. (Some state and local state and local legislatures have also legislatures have also enacted enacted affirmative action affirmative action requirements.)requirements.)



Jetta Wong is the owner and Jetta Wong is the owner and manager of the Golden Dragon manager of the Golden Dragon oriental restaurant. The restaurant is oriental restaurant. The restaurant is large, inexpensive, and enjoys an large, inexpensive, and enjoys an excellent reputation. Business is excellent reputation. Business is good, and the restaurant serves a good, and the restaurant serves a diverse clientele. diverse clientele.



Ms. Wong places a classified ad for a Ms. Wong places a classified ad for a table busser in the employment section of table busser in the employment section of her local newspaper. The response is good, her local newspaper. The response is good, and Ms. Wong narrows the field of potential and Ms. Wong narrows the field of potential candidates to two. One is of the same candidates to two. One is of the same ethnic background as Ms. Wong and the ethnic background as Ms. Wong and the rest of the staff. The second candidate is rest of the staff. The second candidate is Danielle Hidalgo, the daughter of a Mexican Danielle Hidalgo, the daughter of a Mexican citizen and an American citizen. Ms. Hidalgo citizen and an American citizen. Ms. Hidalgo was born and raised in the United States. was born and raised in the United States.



While both candidates are While both candidates are pleasant, Ms. Wong offers the position pleasant, Ms. Wong offers the position to the candidate who matches the to the candidate who matches the background of the restaurant and Ms. background of the restaurant and Ms. Wong. Her rationale is that, since both Wong. Her rationale is that, since both candidates are equal in ability, she has candidates are equal in ability, she has a right to select the candidate she feels a right to select the candidate she feels will best suit her business. Because it is will best suit her business. Because it is an oriental restaurant, Ms. Wong feels an oriental restaurant, Ms. Wong feels diners will expect to see oriental diners will expect to see oriental servers and bussers. servers and bussers.



No one was discriminated against, No one was discriminated against, she maintains, because Ms. Hidalgo she maintains, because Ms. Hidalgo was not denied a job on the basis of was not denied a job on the basis of race, but rather on the basis of what race, but rather on the basis of what was best for business. Ms. Wong was best for business. Ms. Wong simply selected her preference from simply selected her preference from among two equal candidates. Ms. among two equal candidates. Ms. Wong relates her decision to Ms. Wong relates her decision to Ms. Hidalgo. Hidalgo.



Ms. Hidalgo maintains that she Ms. Hidalgo maintains that she was not selected because of her was not selected because of her Hispanic ethnic background. She Hispanic ethnic background. She threatens to file a charge with the threatens to file a charge with the EEOC unless she is offered EEOC unless she is offered employment.employment.



1.1. Do you think Ms. Hidalgo was Do you think Ms. Hidalgo was denied the position because of her denied the position because of her ethnicity? ethnicity?

2.2. In the situation described above, In the situation described above, does Ms. Wong have the right to does Ms. Wong have the right to consider race as a bona fide consider race as a bona fide occupational qualification? occupational qualification?

3.3. How should Ms. Wong advertise How should Ms. Wong advertise jobs in the future to avoid charges jobs in the future to avoid charges of discrimination? of discrimination?


Americans with Disabilities ActAmericans with Disabilities Act

There are three different groups of There are three different groups of individuals who are protected under the ADA:individuals who are protected under the ADA:

1.1. An individual with a physical or mental An individual with a physical or mental impairment that substantially limits a major life impairment that substantially limits a major life activity. Some examples of what constitutes a activity. Some examples of what constitutes a ““major life activitymajor life activity”” under the act are: seeing, under the act are: seeing, hearing, talking, walking, reading, learning, hearing, talking, walking, reading, learning, breathing, taking care of oneself, lifting, sitting breathing, taking care of oneself, lifting, sitting and standing.and standing.

2.2. A person who has a record of a disability.A person who has a record of a disability.3.3. A person who is A person who is ““regarded asregarded as”” having a disability. having a disability.


Accommodating Disabled Accommodating Disabled EmployeesEmployees

1.1. Can the applicant perform the essential Can the applicant perform the essential functions of the job with or without functions of the job with or without reasonable accommodation?reasonable accommodation?

2.2. Is the necessary accommodation reasonable? Is the necessary accommodation reasonable? Will this accommodation create an undue Will this accommodation create an undue financial or administrative hardship on the financial or administrative hardship on the business.business.

3.3. Will this accommodation or the hiring of the Will this accommodation or the hiring of the person with the disability create a direct person with the disability create a direct threat to the health or safety of other threat to the health or safety of other employees or guests in the workplace? employees or guests in the workplace?


Search the Web 7.1Search the Web 7.1Go to: Go to: www.eeoc.gov.www.eeoc.gov.1.1. Under About EEOC, select: Laws, Regulations, Under About EEOC, select: Laws, Regulations,

Guidance, & MOUs.Guidance, & MOUs.2.2. Select: EEOC Policy Guidance.Select: EEOC Policy Guidance.3.3. Select: Enforcement Guidances and Related Select: Enforcement Guidances and Related

Documents.Documents.4.4. Select: Revised Enforcement Guidance: Reasonable Select: Revised Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the Accommodation and Undue Hardship Under the Americans With Disabilities Act.Americans With Disabilities Act.

5.5. From the document displayed, determine:From the document displayed, determine:a)a) What must an employer do after receiving a request for a What must an employer do after receiving a request for a

reasonable accommodation?reasonable accommodation?b)b) Is the restructuring of a job to meet the needs of a disabled Is the restructuring of a job to meet the needs of a disabled

person considered a reasonable accommodation?person considered a reasonable accommodation?


Verification of Eligibility To WorkVerification of Eligibility To Work

Immigration Reform and Control Act Immigration Reform and Control Act (IRCA)(IRCA)

Fair Labor Standards Act of 1938 Fair Labor Standards Act of 1938 (FLSA)(FLSA)


The Employment RelationshipThe Employment Relationship

At-Will EmploymentAt-Will Employment Labor Unions and Collective Labor Unions and Collective

BargainingBargaining



Legalese:Legalese:

Employer Employer - An individual or entity - An individual or entity that that pays wages or a salary in pays wages or a salary in exchange for exchange for a workera worker’’s services.s services.



Legalese:Legalese:

Employee Employee - An individual who is hired - An individual who is hired to to provide services to an employer provide services to an employer in in exchange for wages or a salary. exchange for wages or a salary.



Legalese:Legalese:

At-Will Employment At-Will Employment - An employment - An employment relationship where employers have a right relationship where employers have a right to to hire any employee, whenever they hire any employee, whenever they choose, choose, and to dismiss an employee for and to dismiss an employee for or without or without cause, at any time; the cause, at any time; the employee also has employee also has the right to work for the right to work for the employer or not, or the employer or not, or to terminate the to terminate the relationship at any time.relationship at any time.



Legalese:Legalese:

Collective Bargaining Agreement Collective Bargaining Agreement (CBA) (CBA) - A - A formal contract formal contract between an employer between an employer and a group and a group of employees that of employees that establishes the establishes the rights and rights and responsibilities of both responsibilities of both parties in theirparties in their employment employment relationship.relationship.



Walter Horvath is the executive Walter Horvath is the executive housekeeper at the Landmark Hotel. This housekeeper at the Landmark Hotel. This 450-room historic property caters to leisure 450-room historic property caters to leisure travelers. Occupancy and ADR are highest travelers. Occupancy and ADR are highest on the weekends. on the weekends.

Like many hotels in large cities, the Like many hotels in large cities, the housekeeping staff is difficult to retain. housekeeping staff is difficult to retain. Turnover tends to be high, and the labor Turnover tends to be high, and the labor market tight. Mr. Horvath works very hard market tight. Mr. Horvath works very hard to provide a work atmosphere that to provide a work atmosphere that enhances harmony and encourages enhances harmony and encourages employees to stay. employees to stay.



While he has little control over wage While he has little control over wage scales, his general manager does allow scales, his general manager does allow him wide latitude in setting departmental him wide latitude in setting departmental policies and procedures, as long as these policies and procedures, as long as these do not conflict with those of the do not conflict with those of the management company that operates the management company that operates the Landmark.Landmark.

Housekeepers in Mr. Horvath's Housekeepers in Mr. Horvath's department highly prize weekends off, yet department highly prize weekends off, yet these are the busiest times for the hotel. these are the busiest times for the hotel.



In a staff meeting, Mr. Horvath and the In a staff meeting, Mr. Horvath and the housekeepers agreed to implement a policy housekeepers agreed to implement a policy that would give each housekeeper alternating that would give each housekeeper alternating weekends off, with the stipulation that those weekends off, with the stipulation that those housekeepers who are working on weekends housekeepers who are working on weekends might be required to work overtime to finish might be required to work overtime to finish cleaning all the rooms necessary to service the cleaning all the rooms necessary to service the hotel's guests. The housekeepers agreed to hotel's guests. The housekeepers agreed to this compromise, and the policy was written this compromise, and the policy was written into the department's procedures section of into the department's procedures section of the employee handbook, which all new the employee handbook, which all new housekeeping employees must read and sign housekeeping employees must read and sign prior to beginning work. prior to beginning work.



When the holiday season approaches, Mr. When the holiday season approaches, Mr. Horvath finds that his department is seriously Horvath finds that his department is seriously understaffed. The hotel is filling to capacity understaffed. The hotel is filling to capacity nearly every weekend as guests flock to the nearly every weekend as guests flock to the city to do their Christmas shopping. During a city to do their Christmas shopping. During a job interview with Andreanna White, Mr. job interview with Andreanna White, Mr. Horvath mentions the alternating weekend Horvath mentions the alternating weekend policy for housekeepers. Ms. White states that policy for housekeepers. Ms. White states that she is the choir director for her church. she is the choir director for her church. ““I I could,could,”” she says, she says, ““miss alternating Sunday miss alternating Sunday mornings, because I could arrange a mornings, because I could arrange a substitute. substitute.



Working overtime on Sundays, Working overtime on Sundays, however, would cause me to miss however, would cause me to miss both the morning and evening both the morning and evening services, and I would not be willing to services, and I would not be willing to do that. I could, however, work an do that. I could, however, work an eight-hour day on Sundays with no eight-hour day on Sundays with no problem, because then I could go to problem, because then I could go to either the morning or evening either the morning or evening service.service.””


Analyze the Situation 7.3Analyze the Situation 7.31.1. Should Mr. Horvath hire Ms. White, despite her Should Mr. Horvath hire Ms. White, despite her

inability to comply with the departmental inability to comply with the departmental policy in place at the hotel? policy in place at the hotel?

2.2. If Mr. Horvath hires Ms. White, can he still If Mr. Horvath hires Ms. White, can he still enforce the alternating weekend policy with enforce the alternating weekend policy with currently employed housekeepers, who also currently employed housekeepers, who also might prefer not to work overtime on Sundays? might prefer not to work overtime on Sundays?

3.3. Do you believe Ms. White's choir director Do you believe Ms. White's choir director position warrants an exception to the position warrants an exception to the departmental policy? departmental policy?

4.4. How should Mr. Horvath advertise position How should Mr. Horvath advertise position vacancies in the future? vacancies in the future?


What Would You Do?What Would You Do?

Alex Bustamante is applying for Alex Bustamante is applying for the position of executive chef at the the position of executive chef at the hospital where you serve as Director of hospital where you serve as Director of Human Resources. The hospital has Human Resources. The hospital has more than 800 beds, and the meal more than 800 beds, and the meal service offered to patients and visitors service offered to patients and visitors alike is extensive. Patients in this alike is extensive. Patients in this facility are extremely ill, and because of facility are extremely ill, and because of their weakened condition, dietary their weakened condition, dietary concerns are an important concerns are an important consideration.consideration.



While reviewing Mr. BustamanteWhile reviewing Mr. Bustamante’’s s work history with him during an interview, work history with him during an interview, he states that he was let go from his two he states that he was let go from his two previous positions for previous positions for ““excessive absence.excessive absence.”” When you inquire as to the cause of his When you inquire as to the cause of his excessive absence, Alex offers that it was excessive absence, Alex offers that it was due to the effects of alcoholism, a due to the effects of alcoholism, a condition with which he has struggled for condition with which he has struggled for over 10 years, but for which he is currently over 10 years, but for which he is currently undergoing weekend treatment and undergoing weekend treatment and attending meetings of Alcoholics attending meetings of Alcoholics Anonymous (AA). Anonymous (AA).



He states that he never drank while He states that he never drank while at work, but sometimes missed work at work, but sometimes missed work because he overslept or was too because he overslept or was too hung over to go in. His past hung over to go in. His past employers will neither confirm nor employers will neither confirm nor deny Mr. Bustamantedeny Mr. Bustamante’’s problem. s problem. Both simply state that he had worked Both simply state that he had worked for them as an Executive Chef, and for them as an Executive Chef, and that he was no longer employed by that he was no longer employed by their organizations. their organizations.



Based on his education and Based on his education and experience, Alex is clearly the best-experience, Alex is clearly the best-qualified candidate for the vacant qualified candidate for the vacant Executive ChefExecutive Chef’’s position. However, s position. However, based on his life history, his ability to based on his life history, his ability to overcome his dependence on alcohol is, overcome his dependence on alcohol is, in your opinion, clearly questionable. in your opinion, clearly questionable. Your recommendation on Mr. Your recommendation on Mr. BustamanteBustamante’’s hiring will likely be s hiring will likely be accepted by the Manager of Dietary accepted by the Manager of Dietary Services. Services.



1.1. Have you broken the law by inquiring into Mr. Have you broken the law by inquiring into Mr. BustamanteBustamante’’s difficulty in prior positions? s difficulty in prior positions?

2.2. Is Mr. Bustamante protected under the ADA? Is Mr. Bustamante protected under the ADA? 3.3. If Mr. Bustamante were hired, but needed If Mr. Bustamante were hired, but needed

three days off per week to undergo three days off per week to undergo treatment, would you grant that treatment, would you grant that accommodation? Under what circumstances? accommodation? Under what circumstances?

4.4. How do the rights of Mr. BustamanteHow do the rights of Mr. Bustamante’’s and s and the concept of negligent hiring mesh in this the concept of negligent hiring mesh in this instance? instance?


Rapid ReviewRapid Review

1.1. Identify at least three exceptions to Identify at least three exceptions to the at-will employment doctrine, the at-will employment doctrine, and prepare a rationale for each and prepare a rationale for each exceptionexception’’s existence. s existence.

2.2. Create a description for your most Create a description for your most recent job. Use that information to recent job. Use that information to create a job qualification list for the create a job qualification list for the same job. same job.



3.3. Appraise the pros and cons of refusing to Appraise the pros and cons of refusing to supply detailed performance information supply detailed performance information about past employees to those who call about past employees to those who call for reference checks on them. for reference checks on them.

4.4. Use the World Wide Web to determine Use the World Wide Web to determine the union organization in your home the union organization in your home state or country that represents the state or country that represents the largest number of hospitality workers. largest number of hospitality workers.

5.5. Discuss the relationship between Discuss the relationship between affirmative action and ethnic diversity affirmative action and ethnic diversity awareness. awareness.



6.6. Develop your rationale for determining Develop your rationale for determining whether a visually impaired individual, whether a visually impaired individual, whose sight is fully corrected by whose sight is fully corrected by prescription glasses, falls under the prescription glasses, falls under the protection of the ADA. protection of the ADA.

7.7. Create a checklist that could be used by Create a checklist that could be used by a restaurant for complying with the a restaurant for complying with the requirements of the Immigration Reform requirements of the Immigration Reform and Control Act (IRCA). and Control Act (IRCA).



8.8. Using the Using the InternetInternet, find the state or , find the state or local agency that regulates child local agency that regulates child labor laws in your hometown, and labor laws in your hometown, and compile a list of positions in the compile a list of positions in the hospitality industry that could not hospitality industry that could not be filled by 14- and 15-year-olds be filled by 14- and 15-year-olds under its regulations. under its regulations.

Chapter 7 Legally Selecting Employees. © 2012 Stephen C. Barth P.C. and John Wiley & Sons, Inc. All Rights Reserved Legally Selecting Employees Employee.

Documents

john wiley sons

employment relationship

employment doctrine

classified advertisements

charges of discrimination

cruz cantina

cruz villaraigosa

itemized listing