Employment Laws and Applications
Employment Laws and Applications HMG 6228
University of Central Florida
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Date Created: 09/30/16
Chapter 1: Employment Laws and Application only government employees and union members had any type of protection at all women were relegated to positions traditionally viewed as “women’s work” and were barred from many employment opportunities During the civil rights movement of the 1950s and 1960s, various groups engaged in primarily nonviolent civil disobedience and protests that helped lead to the Civil Rights Act Of 1964 o This legislation radically affected the American work force o The act prohibited discrimination on the basis of race, color, religion, sex, or national origin TitIe VII of the act ensures fair employment standards This single act is generally credited for initiating the equal employment opportunity (EEO) environment that exists in the United States today Defining Discrimination Human resources management is the practice of legal discrimination. Selection, training, and appraisals are all discriminatory practices, since they all involve choosing one individual over another based on discernible differences. only discrimination that follows the guidelines, laws, and regulations of the Equal Employment Opportunity Commission (EEOC) is legal Equal Employment Opportunity Commission The EEOC is the federal commission created by the Civil Rights Act of 1964 to establish and monitor employment standards in the United States The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (forty or older), disability, or genetic information It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit employers with at least fifteen employees are covered by EEOC laws (twenty employees in age discrimination cases) The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits The EEOC is made up of five members appointed by the president of the United States for a term of five years each The EEOC Plays three principal roles: o Oversees the administration of existing EEOC laws and regulations, referring charges of violation to state or local equal employment opportunity agencies. o issue guidelines for TitIe VII compliance o gather information When an employee files a charge, the employer receives a copy of the paperwork. Regardless of whether the charge is filed with the EEOC or a state enforcement agency, the charge can still be heard in state or federal court Each organization in the United States with one hundred or more employees must annually file an EEO-1 report to a regional EEOC office This report outlines the number of women and minorities employed in nine different job categories within the company. Departments of Labor and Homeland Security U.S. Department of Labor (DOL) the DOL Wage and Hour Division issues opinion letters interpreting the Fair Labor Standards Act (FLSA). the Department of Homeland Security has expanded its Basic pilot Employment Verification Program nationwide o The program is a new, voluntary web-based system through which employers can verify the immigration status and employment eligibility of new hires Equal Employment Opportunity and Affirmative Action EEO and affirmative action are not the same. “EEO” refers to the laws and regulations that protect the rights of an identified group or class Affirmative action represents an obligation employers have to hire members of protected groups to overcome past discriminatory practices employers holding federal (and sometimes state) contracts are required to have affirmative action programs Affirmative action programs are acceptable only when they consider applicants on an individual basis and do not set rigid quotas that prevent people who are not in protected groups from competing equally Reverse discrimination: Discrimination against a member of a majority group in favor of a minority solely on the basis of race, color, religion, sex, age, disability status, or national origin. The Pros and Cons of Affirmative Action In California, for instance, a referendum to end affirmative action in state and local government was passed by a 54 percent vote in the 1996 elections. Those who favor affirmative action believe that it is necessary in order to right wrongs suffered by minority groups and others who have been discriminated against in the past those who oppose affirmative action allege that it uses reverse discrimination to solve the problem of discrimination, which can foster resentment and perpetuate prejudice. Evolution of EEO Legislation The first set of EEO laws emphasized personnel policies The second set targeted unequal treatment the third targeted perpetuation of the effects of past discrimination The fourth and, to date, final stage of laws and regulations emphasize the adverse impact on protected groups o Adverse impact relates to those laws designed to reverse the negative effect of past employment practices The Equal Pay Act of 1963 Equal Pay Act of 1963 marked the evolutionary starting point of the EEO movement in the United States passed as an amendment to the Fair Labor Standards Act of 1938 o requires that men and women working for the same organization be paid the same rate of pay for work that is substantially equal. Title VII of the Civil Rights Act of 1964 applies to employers with fifteen or more employees and prohibits unfair employment discrimination based on race, color, sex, religion, and national origin There are two possible defenses for charges of discrimination brought under the Civil Rights Act of 1964: business necessity and bona fide occupational qualifications (BFOQs). o business necessity very limited and narrow. To succeed, the employer must show that the practice is essential to its business o Bona fide occupational qualifications (BFOQs) Permit some legal discrimination and are based on the need to hire certain types of people for specific jobs discrimination based on sex, religion, and national origin is acceptable if a bona fide occupational qualification makes it necessary Examples of bona fide occupational qualifications include the following: Mandatory retirement ages for public bus drivers and airline pilots female attendants in a women’s locker room Male models for male clothing Native-Hawaiian performers for a Hawaiian luau Roman Catholic employees to take care of the altar at a Roman Catholic church The burden of proof that a BFOQ is required rests with the employer. Seniority systems and seniority are also permitted under Title VII, as are systems based on merit or incentive --- as long as differences are not the result of an intention to discriminate employees with more seniority would retain their jobs while others with less seniority in the same position would be laid off merit-based system, raises or other pay increases are contingent on employee performance pre-employment inquiries involving matters that might be construed as discriminatory (sex, national origin, and religion) are acceptable as long as they can be shown to be job-related employers are not required to extend preferential treatment to individuals or groups on the basis of race, color, national origin, sex, or religion o Violations of Title VII There are two theories of discrimination under Title VII: disparate treatment and disparate impact Disparate treatment. o an employer treats one individual differently from others because of the person’s race, sex, color, religion, national origin, or other protected characteristic disparate impact. o an employer doesn’t intend to discriminate, but does something that disadvantages more members of one group than another The Supreme Court first described this term in its 1971 decision in Griggs v. Duke Power Co. Age Discrimination in Employment Act of 1967 The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against people forty years old or older EEOC views employees who are forty Or older as a protected group Vocational Rehabilitation Act of 1973 The Vocational Rehabilitation Act of 1973 requires all employers holding federal contracts of $25,000 or more to employ “qualified” individuals with disabilities and to make “reasonable accommodations” as needed If a company holds federal contracts of $50,000 or more, it must also file a written affirmative action report annually with the EEOC that outlines its program of compliance with this act A person is considered to have a disability if he or she has either a physical or mental impairment, has a record of such impairment, and/or is viewed by others as having such an impairment Americans with Disabilities Act (ADA) covers hiring and providing for individuals with disabilities much more extensively than does the vocational Rehabilitation Act Acts Affecting Veterans The Vietnam Era veterans’ Readjustment Assistance Act of 1974 was designed to provide Vietnam veterans with protected group status for a period of four years after their discharge o employers with $10,000 or more in federal contracts are required to take affirmative action to employ qualified Vietnam-era veterans o To quality, a veteran must have served in the Armed Forces --- not exclusive to Vietnam --- between August 5, 1964, and May 7, 1975. Selective Training and Service Act of 1940. o requires employers to rehire veterans --- within ninety days of reapplication and with no loss of seniority --- who leave a job for military service and then apply for reemployment upon completion of service o requires employers to give employees time off, without pay, to maintain active reserve status o protects veterans who saw either active or reserve duty during the Gulf War in the Middle East during 1990 and 1991 Pregnancy Discrimination Act of 1978 employers cannot stipulate the beginning and ending dates of a pregnant employee’s maternity leave prohibits employers from refusing to hire pregnant applicants as long as they can perform the major functions of the job does not force employers to provide health and disability programs if none previously existed, nor does it require employers to provide health coverage for abortions except in cases where the life of the mother is endangered In 1993, Congress enacted the Family and Medical Leave Act, intended to establish a national leave policy. In the 1987 case Geduldig v. Aiello, the Supreme Court upheld a California law requiring maternal leaves on the basis of “biologistic reasoning” --- meaning that pregnancy was a unique physical condition act specifically prohibits employers from discriminating against pregnant women on the basis that these women may not fit the image the company wants to project One provision that the Pregnancy Discrimination Act of 1978 does not cover is the right of employers to bar pregnant or potentially pregnant applicants from jobs in which hazards could potentially harm a fetus Retirement Equity Act of 1984 requires companies to count all service since the age of eighteen in determining vesting in retirement benefits, plus all earnings since age twenty-one, even if there are breaks in service of up to five years considered a milestone for women, since they typically start work at younger ages than men and often interrupt their careers to raise children applies to both sexes pension benefits may be considered a joint asset in divorce settlements and that employers must provide survivor benefit s to spouses of fully vested employees who die before reaching the minimum retirement age. Immigration Reform and Control Act of 1986 Immigration Reform and Control Act of 1986 (IRCA) was designed to regulate the employment of aliens in the United States employers with four or more employees are prohibited from discriminating against applicants on the basis of citizenship or nationality mandates that employers must verify citizenship status on all employees hired after November 6, 1986 All employers --- no matter how small --- must verify that applicants are authorized to work in the United States. This verification must take place within three days after hire by completing the Employment Eligibility Verification Form --- commonly called the I-9 form Approximately 31 percent of illegal immigrants in the United States work in the hospitality industry o dishwashers (23%) o housekeepers (22%) o cooks (20%) under the IRCA and under regulation of the Department of Homeland Security, employers may rely On several documents to establish an employee’s identity and authorization to work o verify his or her citizenship status by showing such items as a U.S. passport, certificate of nationalization, birth certificate, or a Social Security card o eligible to work if they possess a valid foreign passport and a U.S. employment authorization or receipt from an alien registration form receipt is commonly referred to as a green card Employee Polygraph Protection Act of 1988 Prohibits the use of polygraphs in about 85 percent of the employment situations in which they were previously used Employees are protected from dismissal, discipline, and discrimination solely on the basis of their refusal to submit to a polygraph exam Employers can request polygraph tests under a very narrow exception o This exception permits employers to use polygraph tests to investigate economic loss or injury when they have reason to believe an employee was involved, and if they afford the employee other protection Federal, state, and local governments and firms that perform sensitive work for the U.S. Department of Defense, FBI, or CIA are exempt from this law Drug-Free Workplace Act of 1988 drug abuse cost the United States $200 billion in lost productivity in 2010 The use of drug testing is fueled, in part, by a desire to assure customers that businesses do not hire or employ drug users Occupational Health and Human Services reported at the end of 2008 that just 3.6 percent of job applicants tested positive for drugs during pre- employment drug screenings Drug-Free Workplace Act of 1988 does not mandate a drug-free work environment for all private employers It does, however, require that federal contractors establish policies and procedures to prohibit drug abuse and make a good-faith effort to sustain drug-free working environments The Civil Rights Act of 1991 the act precipitated changes in the area of costs and litigation prior to this law, employees could receive only back pay and equitable relief now able to sue for damage awards act permits individuals to request a trial by jury if they believe they have been discriminated against “Business practices” Criteria used by a business for hiring decisions must be “job related for the position in question and consistent with business necessity.” Employers with fewer than fifteen employees are exempt from payment of punitive damages, except in cases of intentional discrimination. Family and Medical Leave Act of 1993 FMLA act requires employers with fifty or more employees within a 75-mile radius to offer up to twelve weeks of unpaid (but job-protected) leave during a twelve-month period for birth; adoption; care for an ill parent, Spouse or child; or medical treatment To be eligible, a worker must have been employed for at least twelve months and have worked 1,250 hours (or about twenty-five hours per week) Intermittent leave cannot be taken for birth or adoption, but is available for illness. penalties for violation are severe for employers: up to 100 percent of lost wages and benefits, plus attorney fees and various court-related costs twenty-four million Americans have taken advantage of its provisions Other Employment Laws and Court Interpretations Executive orders, issued by the president of the United States, and rulings in court cases have also helped shape employer-employee relations over the past 40 years Executive Orders and Affirmative Action Several executive orders require employers to hire, recruit, and promote women and minorities on an affirmative action basis Executive Order 11246, Issued by President Johnson in 1965 o paralleled Title VII of the Civil Rights Law of 1964 by prohibiting discrimination on the basis of race, color, religion, or national origin. o executive order goes beyond Title VII and requires employers with U.S. government contracts of $10,000 or more annually to engage in affirmative action o requires those with fifty or more employees and $50,000 in contracts to develop affirmative action plans plans must include a set of specific, results-oriented goals designed to correct past discrimination against women and minorities in the workplace Executive Order 11375 issued in 1967 o set the same guidelines --- based on gender --- for federal contractors. In 1969, President Nixon extended the issue of civil rights in the workplace by issuing Executive Order 11478 o mandated that all U.S. government agencies and contractors base employment policies on merit and fitness, rather than gender, race, color, or national origin Executive orders are administered by the Department of Labor through its Office Of federal Contract Compliance Programs (OFCCP) o Charged with monitoring the employer-employee workplace actions of federal contractors through annual reports filed by contractors o charged with gaining compliance through conciliation agreements or, if necessary, through action by the U.S. Department of Justice Failure to adhere to affirmative action provisions outlined in executive orders can result in loss of government contracts, ineligibility for future contracts, and fines or penalties Major Cases and Interpretations Griggs v. Duke power Co., 1971 Steelworkers v. Weber, 1979 Firefighters Union No. 1784 v. Scotts, et al., 1984 1989, the Martin v. Wilks o The Civil Rights Act of 1991 substantially modified Martin by strictly limiting circumstances under which plaintiffs can challenge affirmative action programs long after they have been established 1983 Newport News Shipbuilding and Drydock Co. v. EEOC o court ruled that employers must treat male and females employees equally when providing health benefit coverage for spouses 1983, Arizona v. Norris o employer-sponsored retirement plans must pay equal benefits to men and women --- despite actuarial tables that showed that women were likely to live longer than men and, thus, cost more in benefits 1987, the courts ruled through Johnson v. Transportation Agency State Employment Laws These laws provide much broader protection than federal EEO legislation, which often limits coverage to companies meeting certain size requirements “sexual preference” is now protected in some states Other states and municipalities prohibit discrimination based on physical appearance, political affiliation, contagious diseases, and so on Major Areas of Abuse and Litigation in hospitality Operations The potential for such problems exists in the hospitality industry for several reasons: o The hospitality industry is the largest employer of minimum-wage employees in the United States o While the hospitality industry has long provided employment for a large number of women, many hospitality companies have relatively poor records of promoting women to top-level management positions. This raises a red flag for potential charges of sex discrimination o The large number of female employees working for male managers creates situations conducive to sexual harassment charges o some segments of the hospitality industry have emphasized appearance as a condition of employment. As a result, these companies could be subject to charges of preferential selection, which involves hiring candidates on the basis of personal characteristics such as appearance. Preferential selection constitutes illegal discrimination o The hospitality industry has a high incidence of illegal discrimination in recruitment advertising o Historically, the hospitality industry has placed sex designations on some jobs. Some companies have specifically prohibited individuals from performing specific jobs based on their sex. Recruitment and Selection business necessity is a narrow defense against a charge of discrimination under Title VII A hotel operator’s desire to project a certain image to hotel guests by employing only certain age groups or races would not be considered a business necessity government deems such hiring practices as inconvenience or annoyance issues other policies that would not be considered business necessities include: o Refusing to hire women as hotel stewards because they cannot lift heavy objects o Hiring only pretty or young employees as greeters in a restaurant because the company likes the impression they make on its guests o Hiring only male servers because management views the image as more “professional” four-fifths rule was established by the Uniform Guidelines on Employee Selection Procedures in 1978 o also known as the 80 percent rule o the selection of any racial, ethnic, or gender group at a rate that is less than 80 percent of the group with the highest selection rate is regarded as strong evidence of adverse impact Applicant testing is a common area of selection discrimination Griggs v. Duke power Co. o This means that selection tests are considered illegal if they measure issues not related to job specifications Washington v. Davis o job-related tests were acceptable as screening devices even if they result in adverse impact Discrimination in selection can also occur when recruitment is based on employee referrals unless the conviction is directly related to the type of work, a manager might be guilty of discrimination if he or she refuses to hire someone based on a conviction record Age Discrimination As the overall age of Baby Boomers increases, so will the overall age of the work force ADEA regards both applicants and current employees forty Years of age or older as a protected group The ADEA specifically prohibits discrimination against this group in all employment conditions: hiring, discharge, compensation, and so on Some provisions are made for business necessities, particularly in lines of work where health and safety are paramount o police work o air travel image is not considered a business necessity Refusing to put older workers in training programs, not promoting older employees, and forcing older employees to retire or to move to less desirable positions all represent age discrimination according to the provisions of the ADEA Reverse Discrimination Reverse discrimination generally occurs when an employer attempts to rectify past human resources practices by hiring or promoting applicants or employees from a protected group over those who do not fit this description. Granting preferential treatment to such groups has been considered reverse discrimination Steelworkers v. Weber in 1979 o “Manifest racial imbalance” Employee Benefits and Sex Discrimination In the past, employers sometimes offered one plan to men (deemed heads of the household) and another to women o Such practice was ruled illegal by the Pregnancy Discrimination Act of 1978 employers cannot discriminate on medical benefits, hospitalization, accident and life insurance, retirement plans, and soon. As a result of the Pregnancy Discrimination Act, employers cannot discriminate against women because of pregnancy act protects pregnant women regarding such issues as eligibility for employment and promotion. Religious Discrimination Title VII of the Civil Rights Act makes it illegal to refuse to hire someone simply because of his or her religious beliefs illegal to refuse to hire individuals whose religious beliefs might prevent them from working at certain times a company can refuse to hire someone because of his or her religious beliefs if it can prove that the company will incur undue hardship when the employee takes time off for religious reasons; the company must also show that the job cannot be performed by anyone else during such times Hospitality companies may face other issues involving religious beliefs such as appearance, dress codes, and work schedules employers must keep the workplace free from religious bias or intimidation by employees who attempt to impose their religious beliefs on others Seniority The seniority debate often revolves around promotions and other benefits based on seniority systems, which may be inherently biased due to exclusionary hiring practices before the passage of Title VII. Seniority systems are legal as long as they do not discriminate on the basis of race, color, religion, national origin, or sex If it can be demonstrated that a seniority system has an adverse impact on women or minorities, it will be subject to challenge under Title VII Employers or unions can legally discriminate on the basis of seniority Discriminatory to lay off employees with seniority simply to protect the jobs of recent hires who belong to protected groups Recruitment Advertising Hospitality companies are guilty of breaking discrimination laws in their employment advertising more often than employers in any other industry Ads that specify sex or age are still the most common abuses Burden of proof lies with the employer, not the applicant Sex discrimination occurs in advertising when sex-specific terms are used o Girl o Man o Maid o Waiter o Hostess Age discrimination terms discourage applicants in other age groups o Excellent opportunity for college student o Part-time position for retiree Wrongful Discharge Most discrimination charges arise over the dismissal of employees Wrongful discharge is not the same as dismissal resulting from discrimination An employer of any size can be the target of a wrongful discharge suit Discrimination suits must be based on race, sex, or some other protected characteristic Wrongful discharge suits can be filed whenever an employee is dismissed for any reason 2 basic categories for wrongful discharge: contract theory and public policy theory o Contract theory The employee might claim that a personnel manual created a contract and that he or she was dismissed in violation of the contract o Public policy theory Employee might claim that he or she was dismissed either for refusing to break the law or for insisting on obeying the law Employers can protect themselves from wrongful discharge complaints and lawsuits simply by establishing a discharge policy and sticking to its guidelines 2 basic policies: employment at will or dismissal for just cause o Employment at will Allows and employer to terminate employees with or without notice at any time for any reason o Just cause Emphasizes fair and equal treatment and progressive discipline Simple techniques to prevent charges of wrongful discharge o Specify the rules Clearly identify whether your company follows an employment at will or just cause policy Do not promise more than you are willing to deliver. Some courts have even viewed lengthy duration of employment as an “implied contract” of permanent employment If You adopt an employment at will policy, state up front in clear and conspicuous language that employment is “at the will” of the employer. o Be candid with employees In periodic evaluations, tell the truth about performance. Too many employers fail to note poor performance over a long period of time because they do not want to confront an employee Be specific about areas in which the employee needs to improve o Put employees on notice. If You opt for dismissals based on a just cause-only policy, establish and follow a progressive discipline program. be sure to document and ask employees to sign any warnings or other disciplinary actions. However, don’t force employees to sign anything. if an employee refuses to sign a document, simply indicate that fact in the file. o Consider the options Discharge is rarely the only solution. Consider counseling, training, or returning employees to previous positions in which they performed well Assist in outplacement whenever possible, or provide other benefits in exchange for a written release of claims against the company. Title VII of the Civil Rights Act of 1964, the Immigration Reform and Control Act of 1986, the Age Discrimination Act of 1967, and the Employee Retirement Income Security Act (ERISA) all protect employees against wrongful discharge actions by employers, as do several state EEO regulations Issues in Social Context It is wrong to assume that equality has been attained True regarding 2 groups in the workforce: women and senior citizens Women in the Hospitality Work Force Women fill a majority of the positions in many service industries, most hold what have commonly been referred to as “pink-collar jobs” o Servers o Typists o Secretaries o Guestroom attendants Jobs dominated by women pay less than those dominated by men Hospitality industry continues to be one in which men typically supervise women Overtime Work Laws August 2004, the federal government issued new rules extending right for overtime pay to more low-wage workers, but reducing or eliminating that protection for many white-collar and middle-income employees Under the new Fair Pay Rules o Workers earning less than $23,660 per year ($455 per week) are guaranteed overtime protection o Employees’ salaries can be docked when they receive an unpaid disciplinary suspension of one or more full days for violating workplace conduct rules o If a hotel, restaurant, or other business closes temporarily because of a hurricane, or for any other reason, the property still must pay employees who are exempt from overtime a weekly salary to maintain their exempt status Overtime rules date back to 1983 o Changes are rare Impact of Unethical Business The hospitality industry has not been a focus of major SEC investigations to date One ruling by the SEC is likely to affect many hospitality employers o It concerns the employment of spouses and other family members The series of new required disclosures is at least partially a by-product of the SEC’s high-profile charges against Disney for failing to disclose family ties between its directors and company employees Family members paid more than $60,000 must now be specifically disclosed on SEC reports o Affects public companies only, the ruling could pertain to hospitality firms in which executive compensation includes salaries for spouses, children, or other family members o applies not only to those living with the executive but also to “adults not living with the director or executive” SEC assumed in this matter that such salaries are merely methods of concealing real executive compensation and, as such, must be reported to shareholders and the SEC The Aging Work Force Hospitality has the reputation of being an industry the employees “just pass through” until they get their “real jobs” Hs failed to develop a career ladder for its employees The impact of EEO legislation on the hospitality industry will be magnified by the aging of the Baby Boom generation (1946-1964) As baby boomers retire in large numbers, the hospitality industry will face a new PROBLEM: o How to cope with fewer experienced managerial personnel Face an additional NEED: o Increased reliance on aging baby boomers to fill part-time positions Retire in large numbers AND re-enter the work force as part-time employees to supplement their pensions Employment Practices Liability Insurance EPLI Example of industry adaptation 1991 only 5 carriers 2000 – 70 companies offered such policies Contract provides defense and indemnity protection against claims arising from the employer-employee relationship Provides coverage for wrongful employment act, wrongful termination, sexual harassment, or discrimination Coverage is provided for the business entity itself as well as for senior officers and directors Deductibles range from $2,500 to $25,000 Continuing Education Costs for completing an MBA can exceed $100,000 The incentive is an average starting salary of approximately $75,000 Costs of acquiring the degree are often tax deductible The allowance of the deduction for education expenses is included in Internal Revenue Code section 162 under the wide-ranging concept of “deduction of all the ordinary and necessary expenses… in carrying on any trade or business.” Treasury Regulations section 1.162-5 (last revised in 1976) o Expands, explains, and provides examples related to the specifics of the deduction of education expenses The following must be met for the expense to be deductible: o It is not required in order to meet the minimum educational requirements for qualification in employment, or other trade or business o It is not part of a program of study that will lead to qualification for a new trade or business o It will maintain or improve skills required by the individual in employment or other trade or business o It meets the express requirements of the individual’s employer, or meets the legal requirements to maintain the individual’s employment, status, or rate of compensation Avoiding Lawsuits The best way to avoid potential lawsuits (and the potential for formation of unions in your business) is simply to listen to employees, find out what they want, need, expect, and would like. Low morale us usually caused by management actions that are unpopular with employees o Finding out what these are and anticipating the employees’ reaction to new employer rules can avoid much of the tension that leads up to lawsuits Listen to employees o Small group discussions o Large employee opinion surveys o Employee feedback Good first step o Ask an employee or employee group to participate regularly in employer decision-making Providing this opportunity for employee input is often enough to ensure that employees will attempt to work problems out rather than make more drastic steps that affect businesses more adversely Using Credit Reports as Employment Checks Fair Credit Reporting Act (FCRA) Employers must have written authorizations from employees or job applicants to obtain copies of their credit reports If an employer takes an “adverse action” such as denying employment or promotion on the basis of information included in a consumer credit report, the employer must notify the applicant or employee and provide the name, address, and phone number of the agency that produced report. Americans with Disabilities Act Went into effect July 26, 1992 Affects the way hospitality companies relate to guests and employees Background President George H. W. Bush signed the ADA in July 1990 Law forbids discrimination against people with disabilities Most sweeping piece of civil rights legislation since Title VII of the Civil Rights of 1964 ADA has five titles (parts) o Title I Employment It is unlawful to discriminate against people with disabilities in all employment and employment-related practices Recruitment Hiring Promotion Training Layoff Pay Termination Job assignments Leave Benefits o Title II Public Services o Title III Public Accommodations and Services Operated by Private Entities o Title IV Telecommunications o Title V Miscellaneous American Association of People with Disabilities (AAPD) o A group dedicated to promoting economic self-sufficiency among it membership o There are more than 56 million people with disabilities in the U.S o About 1 out of 5 ppl o 28 million ppl with disabilities of employable age, only 1/3 has found work 1995 o Unemployment rate for women who are not disabled = 19.94% o Unemployment rate for women who are disabled = 66.94% o Unemployment rate for men who are not disabled = 5.04% o Unemployment rate for men who are disabled (nonserve) = 23% o Unemployment rate for men who are disabled (serve) = 76.8% o Unemployment for four year college graduates who are not disabled = 10.1% o Unemployment for four year college graduates who are disabled = 49.4% The Vocational Rehabilitation Act of 1973 requires employers receiving more than $25,000 in federal contracts to actively recruit and accommodate people with disabilities Under the ADA, all employers, public or private, that employ fifteen or more employees for each workday in each of twenty or more calendar weeks in the current or preceding year must adhere to the law The EEOC is the designated enforcement agency for the ADA Charges of discrimination must be filed with the EEOC within 180 days of occurrence o States with approved enforcement agencies where charges may be filed up to 300 days later After a complaint is filed, the EEOC has up to 180 more days to investigate the charge and either sue the employer or issue a right-to-sue letter to the complainant The complainant has up to 90 days to file a lawsuit Depending on the circumstances and the state, an employee can file suit against a current or former employer for an event that happened up to 570 days (or more than eighteen months) earlier Civil penalties against any employer to a maximum of $50,000 for first violation and up to $100,000 for subsequent violations of the rights of individuals with disabilities The Civil Rights Act of 1991 allows for recovery of compensatory and punitive damages up to $300,000 (depending on the number of workers employed) for intentional discrimination Defining Disability Individual is considered to have a disability when he or she o Has a physical or mental impairment that substantially limits one or more major life activities o Has a record of such impairment o Regarded as having such impairment Major life activities include o Seeing o Hearing o Speaking o Walking o Breathing o Performing manual tasks o Learning o Caring for oneself o Working ADA protects people with disabilities that involve o Speech o Vision o Hearing o Disabilities caused by mental retardation o Specific learning impediment o Mental illness People with the following are protected o Cancer o Heart disease o Cerebral palsy o Epilepsy o Multiple sclerosis o Arthritis o Asthma o Diabetes o HIV and AIDS o Severely disfigured person o Autism o Alzheimers disease o Head injury o Brain injury o Orthopedic o Neurological o Psychological o Respiratory Drug and alcohol addiction is considered a disability if a person participates in a supervised rehabilitation program or has undergone rehabilitation and is not currently using drugs or alcohol January 1, 2009 o ADA Amendments Act (ADAAA) Major life activities covered by ADAAA include Caring for oneself Doing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending Speaking Breathing Learning Reading Concentrating Thinking Communicating Working Major body functions covered: Immune system Normal cell growth Digestive Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive Qualifying for Work People with disabilities are considered qualified if they can perform the essential functions of the job with or without reasonable accommodation Essential functions o Job tasks that are fundamental Cooking Reasonable accommodation o what employers must do to make the workplace accessible to people with disabilities o required to accommodate people with disabilities unless doing so imposes the undue hardship on the employer the following efforts are considered reasonable accommodations by the EEOC unless particular issues in a specific case deem them otherwise: o making facilities accessible constructing wheelchair ramps, widening aisles, raising cashier station on blocks for a person in a wheelchair, etc o restructuring jobs to eliminate nonessential functions o reassigning a person to a vacant job moving someone to another job if he or she becomes unable to perform in an existing job o modifying work schedules to allow for medical and other related appointments o modifying or acquiring equipment may include special equipment that a person with a disability needs to perform essential job functions o providing readers or interpreters for people who cannot read or have visual impairments employers must make the workplace accessible and barrier-free so that employees with disabilities can be hired and can access their workstations The ADA’s Impact on the Hospitality Industry doors must have a 32-inch-wide clearance o door opened at a 90 degree angle o face of the door to the door jamb accessible rooms are not dispersed among the different types of hotel rooms hotels with fifty or more rooms often lack accessible rooms with roll-in showers o number required increases with the number of overall rooms closed-fist test o if you can operate the mechanism with a closed fist, it’s accessible “cosmetic” hiring practices are considered discriminatory Communicable Diseases 2004 o EEOC issued explanatory guidelines that pertain specifically to restaurants Employees with communicable diseases must be afforded disabled status when it affects their ability to work Four communicable bacterial agents: salmonella typhi, shigella, e.coli , and hepatitis A
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