HRM 370 GU Wk 1 Employment Relationship & The Jewelry Exchange Case Discussion

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HRM 370

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Week 1 Case Questions

Select TWO court cases (from different chapters) from the list below, and respond in writing to the case questions.

Casias v. Wal-Mart Stores (Ch 1, p 7)

Nino v. The Jewelry Exchange (Ch 1, p 21)

EEOC v. Autozone (Ch 1, p 25)

Narayan v. EGL, Inc. (Ch 2, p 40)

Glatt v. Fox Searchligh Pictures Ch 2, p 42)

Zheng v. Liberty Apparel Co. (Ch 2, p 57)

Jones v. Oklahoma City Public Schools (Ch 3, p 83)

Diaz v. Kraft Foods Global (Ch 3, p 86)

Chattman v. Toho Tenax America (Ch 3, p 90)

Geleta v. Gray (Ch 3, p 100)

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Employment Relationship This week’s lecture will serve as an introduction to the course and will familiarize you with the employment relationship, which is the bedrock principle undergirding employment law. Employment law is a patchwork of federal, state and local laws. What law applies in a particular situation will depend on: • • • whether the employees work for the government or a private employer; whether the employees are represented by a union; and the size of the employer. The law that governs this area includes: the Constitution (both state and federal), statutes, executive orders, administrative regulation, and case law. This makes employment law a dynamic area of study. One of the most important principles to keep in mind going forward is that absent special circumstances all employment is at-will. This means that an employee may be fired (or an employee may quit) for any reason except for reasons prohibited by law. Additionally, parties supersede the employment-at-will doctrine via contract. Much of the material we will cover in the course deals with various exceptions to the employment at will doctrine. Over time, the employment-at-will doctrine has been modified by the various sources of law discussed above to grant employees several substantive rights. These rights include: the right to nondiscrimination and equal employment, the right to engage in concerted activity and collective bargaining, rights governing the conditions of employment that meet minimum standards (such as the minimum wage or safety standards), and workmen’s compensation systems. Rights violations can be addressed by the federal and state courts. Penalties may include attorney’s fees, a court order, back pay, reinstatement, and punitive damages depending on the situation. To avoid these penalties, smart employers document everything to provide justification for employment decisions as these decisions occur. One of the most significant factors determining what employment laws apply is whether an employment relationship exists. This relationship requires the employer to comply with a number of tax laws, including those governing Social Security, Medicare, worker’s compensation, and unemployment insurance. Additionally, most of the laws discussed in this course only apply when there is an employment relationship. Thus, the first question that frequently must be answered is “Who is an Employee?” First, it is critical to distinguish between employees and contingent workers, such as independent contractors or interns. The courts apply a number of tests to determine whether an employment relationship exists. The two most significant tests are the common law test and the economic realities test. There is substantial overlap between these tests with the common law test particularly emphasizing who has the right to control where, when, and how work gets done. This status will determine who is held liable for any violations of an employee’s rights. The employee/employer relationship is also governed by the laws of agency. Agency law determines when an employer is liable for the actions of an employee, and an employer is legally responsible for the actions of employees when the employee is acting within the scope of employment (actions that relate to work the employee was hired to perform; take place substantially within the workplace and during working hours; and serve, at least partially, the interests of employers). Employers can be held liable for actions outside the scope of employment in limited cases. This liability is limited to situations where the employer intended the harm to occur or was negligent or reckless in allowing the harm to occur or where actual or apparent authority conferred by the employer to the employee aided the actions. Finally, it is important to note that an employee may have two or more joint employers. This may occur, for example, in agricultural settings or in situations involving staffing firms. In these situations, all joint employers may be liable for violations of the employee’s rights. References • Chapters 1-2 of Walsh, D. (2015). Employment Law for Human Resource Practice. (5th ed.). Mason: South-Western. • Most of the material is derived, with some editing, from the Instructor material from the book’s companion website. . Introduction to Employment Discrimination Employment discrimination is one of the most significant topics we will cover in this course. As we discussed in the last lecture, the at-will nature of the employee/employer relationship is the bedrock of employment law. But at-will employment has a number of exceptions. Antidiscrimination is one of the biggest exceptions to the at-will employment rule. Employment discrimination is a limitation or denial of employment opportunity based on the protected class characteristics of a person. This limitation of an opportunity is also known as an adverse employment action under the law. The adverse employment action must be based on or related to the protected class characteristics of people. Much of the material in this section deals with what qualifies as an adverse employment action and what the protected classes are. The protected classes are primarily defined by the various non-discrimination statutes. These statutes have greatly expanded the group of people that qualify for protection. Below is a list of the protected classes and the statutes that govern these classes under federal law: 1. Title VII of the Civil Rights Act (42 U.S.C. Section 1981): a. Race b. Color c. National Origin d. Religion 2. Immigration Reform and Control Act: Citizenship 3. Age Discrimination in Employment Act (ADEA): Age 4. Americans with Disabilities Act (ADA): Disability 5. Pregnancy Discrimination Act: Pregnancy 6. Uniformed Services Employment & Reemployment Rights Act: Military Service 7. Genetic Information Nondiscrimination Act: Genetic Information Additionally, some states and city provide for additional protected classes for marital status, sexual orientation, gender identity and tobacco/alcohol use among others. There are four main types of discrimination: • • • • Disparate treatment requires evidence of discriminatory intent. Adverse (disparate) impact is where there is a facially neutral policy that has discriminatory effects. Failure to reasonable to accommodate applies only to religion and disability. Retaliation is when an employer punishes an employee’s exercise of his or her legal rights. These cases generally have three parts. First, the plaintiff must prove a prima facie case. The elements of this case will depend based on the type of discrimination. Then, the defendant has an opportunity to provide a legally adequate justification. Finally if such a justification exists, the plaintiff has a chance to disprove the justification. From this lists of the types of discrimination, there are some obvious steps employers should take to limit their potential liability: • • • • Employers shouldn’t make employment decisions based on the protected class characteristics of employees. Employees should be treated fairly and like situations should be treated consistently. The factors used to make these decisions must be scrutinized for their potential to have discriminatory effects. Employers should show flexibility where possible in accommodating the religious and disabled. Special care should be taken for employees who have filed complaints against employers. The first type of discrimination case discussed above is a disparate treatment case. To win this case (and any civil case), the plaintiff begins by establishing the elements of a prima facie case: 1. 2. 3. 4. 5. 6. The plaintiff must establish their relevant protected class characteristics Applied for the employment opportunity The employment opportunity was available The plaintiff was qualified The plaintiff was denied the opportunity Defendant-Employer continued to interview or hired one with contrasting protected class characteristics. Then, the burden shifts to the defendant to produce evidence of lawful motive for the employment decision. If this is done, the burden shifts back to the plaintiff to rebut by showing the defendant’s justification is a pretext or providing further evidence of discrimination. The second type of discrimination is adverse impact. To prove a prima facie case of adverse impact, there must be a 1) a neutral requirement that disproportionately limits the employment opportunities of a protected class of which plaintiff is a member; 2) the difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. Once this is proven, the defendant must prove that the requirement is job related and consistent with business necessity. If the requirement meets this bar, the plaintiff may still prevail by showing that there is a feasible, less discriminatory practice that the employer refuses to adopt. The last type of discrimination we will discuss here is retaliation (accommodation will be discussed in some detail later in the course). Again, the plaintiff must establish a prima facie case of three elements: 1. Plaintiff engaged in protected activity or opposed discrimination 2. Plaintiff suffered a material adverse employment action 3. There is a causal link between the activity and the adverse employment action. If this is proven, the defendant must prove a lawful, non-retaliatory motive for the decision. This motive may be rebutted by evidence that sheds doubt on the proffered justification or additional evidence. References: Chapter 3 of Walsh, D. (2015). Employment Law for Human Resource Practice. (5th ed.). Mason: South-Western. Most of the material is derived, with some editing, from the Instructor material from the book.
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OUTLINE
Introduction
Body
Conclusion
References


Course Title
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1
Week 1 Case Questions
Nino v. The Jewelry Exchange (Ch. 1, p 21)
1. What was the legal issue in this case? What did the Court of Appeals decide?
The legal issue in this case is whether the arbitration agreement was unacceptable or
unconscionable, and whether the unacceptable terms could be done away with without making
the entire agreement void. Another issue was whether the employer had waived the right to
compel arbitration by its move to litigate the case for 15 months. The Court of Appeals decided
that the agreement was unconscionable and the unacceptable terms could not be separated
entirely from the other parts of the agreement. Also, the court maintained that by waiting for
too long to invoke the agreement, the employer had waived the right to compel arbitration. The
plaintiff could therefore lawfully peruse the claims of discrimination against the employer in
court.
2. What does it mean for a contract to be “unconscionable”? “Procedurally
unconscionable”? “Substantively unconscionable”?
Contracts can be considered to be unconscionable when there is no meaningful choice for one
party, or when the term favor one party more than the other. A contract has to be proven to be
both procedurally and substantively unconscionable to conclude that it is unconscionable in its
entirety. A substantively unconscionable contract is when the contents of the contract are either
oppressive, one-sided, harsh and unfavorable to one side. Procedurally unconscionable
agreements refer to ‘contracts of adhesion’ which are dr...


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