Employment Regulation in the Workplace: Basic Compliance for Managers by Robinson, Franklin, and Wayland

1
Employment Regulation in the Workplace Basic
Compliance for Managersby Robinson, Franklin,
and Wayland

• Chapter 1
• Impact of Regulation on Human Resource Practices
• Fall 2009

2
Federal Laws Regulating the Workplace
Date Statute 1927 Railway Labor Act 1932 Labor
Disputes Act (Norris-LaGuardia Act) 1935 National
Labor Relations Act (Wagner Act) 1935 Social
Security Act 1938 Fair Labor Standards
Act 1947 Labor Management Relations Act
(Taft-Hartley Act) 1959 Labor Management
Reporting and Disclosure Act 1963 Equal Pay
Act 1964 Civil Rights Act (as amended)
1970 Occupational Safety and Health Act (OSHA)
3
Federal Laws Regulating the Workplace
Date Statute 1972 Equal Employment Opportunity
Act 1973 Vocational Rehabilitation Act (as
amended) 1974 Employee Retirement Income
Security Act (ERISA) 1974 Vietnam Era Veterans
Readjustment Assistance Act. 1976 Age
Discrimination in Employment Act
(ADEA) 1978 Pregnancy Discrimination
Act 1978 Civil Service Reform Act (CSRA
78) 1986 Immigration Reform and Control Act
(IRCA) 1986 Consolidated Omnibus Budget
Reconciliation Act (COBRA) 1988 Worker
Adjustment and Retraining Notification Act
(WARN)
4
Federal Laws Regulating the Workplace

• Date Statute
• 1988 Drug-Free Workplace Act
• 1988 Polygraph Protection Act
• 1990 Americans with Disabilities Act (ADA)
• 1991 Civil Rights Act (CRA 91)
• Family and Medical Leave Act (FMLA)
• Health Insurance Portability and Accountability
  Act
• (HIPAA)

5
Employment Practices Governed by Law
Recruiting Harassment Selection/Hiring
Performance Appraisal Promotions Training Work
Assignments Development Layoffs Worker
Safety Terminations Worker Security Disciplinar
y Actions Wage and Salary
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Total Charge Receipts Investigated by the EEOC

• Year Total Charge Receipts Change
• 1996 77,990 -10.9
• 1997 80,680 3.5
• 79,591 -1.3
• 77,444
  -2.7
• 79,896 3.2
• 80,840
  1.2
• 84,442 4.5
• 81,293
  -3.7
• 79,432
  -2.3
• 75,428
  -5.0
• 75,768
  0.5
• 1992 72,302 4.8

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Total Charge Receipts by the EEOC FEPAs

• Year EEOC FEPA Total
  FEPA
• Receipts Receipts
  Receipts
• 1997 80,680 69,854 150,534
  46.4
• 79,591 65,678 145,269
  45.2
• 77,444 61,708
  139,152 44.3
• 79,896
• 80,840 58,303
  139,143 41.9
• 84,442 62,774
  147,216 42.6
• 81,293 61,998
  143,291 43.3
• 79,432 57,318
  136,750 41.9
• 75,428 55,928
  131,359 42.6
• 75,768 48,926
  124,694 39.2
• 82,792
• 95,402

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Common Legal Source Citations
Steelworkers v. Weber, 443 U.S. 193, 205
(1979) 42 U.S.C. 2000e-2 (2000) 29 C.F.R.
1608.4 (2000)
9
Law Reporters
Abbreviations Law Reporter U.S.
United States Reports S.Ct.
Supreme Court Reporter F.3d
Federal Reporter, 3rd Series F.2d
Federal Reporter, 2nd Series F.Supp.
Federal Supplement F.Supp. 2d. Federal
Supplement, 2nd Series U.S.C.
United States Code Stat.
Statutes at Large C.F.R. Code of
Federal Regulations
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Common Legal Source Citations of Cases
Steelworkers v. Weber 443 U.S. 193, 205 (1979)
Beginning Page
Volume
Year of Decision
Legal Reporter
Specific page on which information is found
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Avoiding Confusion in Citations of Statutes
Title VII is found at 42 U.S.C. 2000e-2
(2000), it can also be cited as 78 Stat. 255,
and Pub. L. 88-352, Title VII, 703, (July 2,
1964)
12
Sources of Employment Law

• Statutes (legislative branch)
• Laws are like sausages. It's better not to see
  them being made.
• Otto von Bismarck (1815 - 1898)
• Regulations (executive branch)
• Case Law (judicial branch)

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19th Century Regulation

• Civil Rights Act of 1866 - removed annual labor
  contracts.
• Civil Service Reform Act of 1883 - provided
  protection for civil servants from the spoils
  system.
• Interstate Commerce Act of 1887 governed
  transportation to benefit the public interest.

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The First Wave of Federal Workplace Regulation

• Railway Labor Act of 1926
• Labor Dispute Act of 1932 (a.k.a.,
  Norris-LaGuardia Act)
• Federal Communications Act of 1934
• Securities and Exchange Act of 1934
• National Labor Relations Act of 1935 (a.k.a.,
  Wagner Act)
• Civil Aeronautics Act of 1938
• Labor Management Relations Act of 1947 (a.k.a.,
  Taft-Hartley Act)
• Labor Management Reporting and Disclosure Act of
  1959 (a.k.a., Landrum-Griffin Act)

15
Recommended Reading

• Jim Powell (2004). FDRs Folly
• Gene Smiley (2003). Rethinking the Great
  Depression
• Amity Schlaes (2007). The Forgotten Man

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The First Wave of Federal Workplace Regulation

• Creation of Vertical Agencies
• Industry Specific.
• FCC - Federal Communications Act of 1934
• CAB - Civil Aeronautics Act of 1938.
• SEC - Securities and Exchange Act of 1934.
• Primarily concerned with the competitive health
  of the specific industry that the agency
  regulated.

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The Second Wave of Federal Regulation

• John Kennedys New Frontier and Lyndon Johnsons
  Great Society.
• Equal Pay Act of 1963.
• Clean Air Act of 1963.
• Civil Rights Act of 1964.
• E.O. 11246.
• Age Discrimination in Employment Act of 1967.
• Subsequent administrations.
• Occupational Safety and Health Act of 1970.
• Americans with Disabilities Act of 1990.
• Civil Rights Act of 1991.
• Family Medical Leave Act of 1993.

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The Second Wave of Federal Regulation

• Creation of Horizontal Agencies
• Across Industries.
• EEOC - Civil Rights Act of 1964
• EPA Clean Air Act of 1963
• OSHA - Occupational Safety and Health Act of
  1970.
• Concerned only with compliance.

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America as a Litigious Society

• DECADES OF LAWSUIT ABUSE have managed to catch up
  with even the trial lawyers. After 60 years, the
  Association of Trial Lawyers of America (ATLA)
  has realized its name and reputation are anything
  but spotless.
• Their answer get a new name, the American
  Association for Justice. But removing the words
  trial and lawyers from their name wont erase
  the harm caused to working families and consumers
  every day. Frivolous lawsuits eliminate American
  jobs, destroy small businesses, and add millions
  each year to the price of everything from
  medicine and cars to housingeven groceries!
• Source The U.S. Chamber of Commerce and the U.S.
  Chamber Institute for Legal Reform 1615 H Street,
  NW, Washington, DC 20062-2000

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America as a Litigious Society

• A culture obsessed with rights.
• NAAFA (National Association to Advance Fat
  Acceptance).
• Gay rights (Gay and Lesbian Alliance Against
  Defamation and Lambda Legal).
• Jackson, Lewis, Schmitzler Krupman
• 57 of firms had at least 1 litigation in past 5
  years.
• 2000, litigation costs in the U.S. were 179
  billion (2.2 of GDP).
• Source Tillinghast-Towers Perrin. U.S. Tort
  Costs 2000.

21
America as a Litigious Society

• After weeks of mediation with the San Francisco
  Human Rights Commission, Jazzercise Inc. (the
  world's biggest dance-fitness organization)
  agreed to change company policy.
• Jennifer Portnick, a 240-pound San Francisco
  aerobics instructor rejected by Jazzercise
  because of her size, has reached an agreement
  under which the firm will drop its requirement
  that instructors look fit.

22
America as a Litigious Society

• In 2003, Caesar Barber sued the fast food
  industry for making him fat. Mr. Barber, a
  5-foot-10-inch, 272-pound maintenance worker,
  said he had heart attacks in 1996 and 1999.
• Specifically named in the suit are his favorite
  fast food restaurants KFC, Wendys, Burger King
  and McDonalds.

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Impact of Regulation

• Administrative Costs - documentation, record
  keeping, buying new equipment, filing reports
  cost could range between 51.9B to 134.4B per
  year (Mercatus Group study, 2001).
• Litigation Costs
• Court and attorneys fees average 240,000 per
  employment trial.
• Punitive and compensatory damages under Title VII
  may run as high as 300,000 per aggrieved party.

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Impact of Regulation

• Opportunity Costs - avoid important decisions to
  also avoid potential litigation.
• Retaining less productive employees.
• Not disciplining disruptive workers.
• Delays in product introduction.
• Loss of Corporate Legitimacy
• Texaco 176.1M (1997).
• Toyota 8B (2001) largest to date.
• How society views an organizations actions.

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The Regulatory Agencies

• Equal Employment Opportunity Commission (EEOC)
• National Labor Relations Board (NLRB)
• Occupational Safety and Health Administration
  (OSHA)
• The Office of Federal Contract Compliance
  Programs (OFCCP)
• Office of Labor Management Standards
• Wage and Hour Division (WHD)

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Equal Employment Opportunity Commission

• Agency Independent
• Enforces
• Equal Pay Act of 1963
• Title VII of the Civil Rights Act of 1964
• Age Discrimination in Employment Act of 1967
• 501 505 of the Rehabilitation Act of 1973
• Title I and Title V of the Americans with
  Disabilities Act of 1990
• Civil Rights Act of 1991

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Current Members of the EEOC

• Stuart J. Ishimaru , Acting Chair Bush - 2012
• Commissioners
• Constance S. Barker Bush - 2011
• Christine M. Griffin Bush 2009
• Commissioner Vacant
• Commissioner Vacant

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Occupational Safety and Health Administration

• Agency Department of Labor
• Enforces
• Occupational Safety and Health Act

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Office of Federal Contract Compliance Programs

• Agency Department of Labor
• Enforces
• E.O. 11246
• Revised Order No. 4 (41 C.F.R Part 60-2)

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Wage and Hour Division

• Agency Department of Labor
• Enforces
• Fair Labor Standards Act
• Minimum wage
• Overtime
• Child labor
• Davis-Bacon Act
• Service Contract Act
• Polygraph Protection Act
• Family Medical Leave Act

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Structure of the Federal Courts
Supreme Court Circuit Courts of Appeal (First
through Eleventh Circuits, the District of
Columbia
Circuit, and the Federal Circuit) District
Courts (94 Districts) writ of certiorari
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Supreme Court

• Created by the Judiciary Act of 1789, 28 U.S.C.
  1332 et. seq. (2005).
• Initially the Supreme Court of six justices,
  including one Chief Justice and five associate
  justices.
• 1807 expanded to 7.
• 1807 expanded to 9.
• 1863 expanded to 10.
• 1866 reduced to 9.
• 1867 reduced to 8.
• 1869 expanded to 9.

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Supreme Court

• Nine Justices appointed by the president and
  approved by the Senate.
• JOHN G. ROBERTS, 54 (Chief Justice Bush II)
• JOHN PAUL STEVENS, 89 (Ford)
• ANTONIN SCALIA, 73 (Reagan)
• ANTHONY M.KENNEDY, 73 (Reagan)
• Sonia Sotomayor, 55 (Obama)
• CLARENCE THOMAS, 61 (Bush I)
• RUTH BADER GINSBURG, 76 (Clinton)
• STEPHEN G. BREYER, 73 (Clinton)
• SAMUEL A. ALITO, 59 (Bush II)
• Decisions apply to the United States and its
  Territories.

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Circuit Courts of Appeal

• There are 13 judicial circuits, each with a court
  of appeals.
• The smallest court is the First Circuit, with six
  judgeships.
• The largest court is the Ninth Circuit, with 28
  judgeships.
• The most overturned circuit is the Ninth Circuit.

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Circuit Courts of Appeal

• First Massachusetts, Maine, New Hampshire,
  Rhode Island, and Puerto Rico.
• Second Connecticut, New York, and Vermont.
• Third Delaware, New Jersey, Pennsylvania, and
  Virgin Islands.
• Fourth Maryland, North Carolina, South Carolina,
  Virginia, and West Virginia.
• Fifth Louisiana, Mississippi, and Texas.
• Sixth Kentucky, Michigan, Ohio, and Tennessee.

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Circuit Courts of Appeal

• Seventh Illinois, Indiana, and Wisconsin.
• Eighth Arkansas, Iowa, Minnesota, Missouri,
  Nebraska, North Dakota, and South Dakota.
• Ninth Alaska, Arizona, California, Hawaii,
  Idaho, Montana, Nevada, Oregon, Washington,
  Guam, Northern Mariana Islands.
• Tenth Colorado, Kansas, New Mexico, Oklahoma,
  Utah, and Wyoming.
• Eleventh Alabama, Florida, and Georgia.
• District of Columbia District of Columbia.
• Federal Various Federal Courts .

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Circuit Courts of Appeal

• Decisions only apply to their geographic
  jurisdiction.
• Approximately 44 of all cases appealed by
  employers are reversed.
• Only 6 of cases appealed by employees are
  reversed.

Source Eisenberg, T. and Schwab, S. J. (2001).
Double Standard on Appeal. Cornell University
Study.
38
District Courts

• In most cases, the court of original jurisdiction
  (the court where the trial of the case begins and
  where remedies are imposed).
• Ninety-four districts through out the U.S. and
  its territories (District of Columbia, Guam, and
  the Northern Mariana Islands).
• Decisions only apply within the geographic
  confines of their districts.

39
Two Guiding Principles In Creating Case Law

• Congressional Intent - the court must view the
  issue in terms of what Congress was trying to
  accomplish at the time the statute was enacted.
• Precedent - the legal principle of stare decisis
  which means to adhere to previously decided cases.

40
Schools of Judicial Thought

• Judicial Activism - views the judicial branch of
  government as a means to achieve social justice.
• Often at the expense of precedent.
• Views the Constitution as a living document.
• Judicial Restraint - views the judicial branch of
  government as restricting its activities to
  enforcing existing laws, not creating new ones.
• Views the Constitution as a constraining document.

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The Statute

• Unlawful employment practices
• (a) It shall be an unlawful employment practice
  for an employer -
• to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individual's race, color,
  religion, sex, or national origin
• Source 42 U.S.C 20003-2(a)(1) (2000)

42
The Regulation

• 1600--EMPLOYEE RESPONSIBILITIES AND CONDUCT
• 1601--PROCEDURAL REGULATIONS
• 1602--RECORDKEEPING AND REPORTING REQUIREMENTS
  UNDER TITLE VII AND THE ADA
• 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND
  LOCAL GOVERNMENT EMPLOYEE COMPLAINTS OF
  EMPLOYMENTDISCRIMINATION UNDER SECTION 321 OF THE
  GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
• 1604--GUIDELINES ON DISCRIMINATION BECAUSE OF SEX

43
The Regulation

• 1605--GUIDELINES ON DISCRIMINATION BECAUSE OF
  RELIGION
• 1606--GUIDELINES ON DISCRIMINATION BECAUSE OF
  NATIONAL ORIGIN
• 1607--UNIFORM GUIDELINES ON EMPLOYEE SELECTION
  PROCEDURES (1978)
• 1608--AFFIRMATIVE ACTION APPROPRIATE UNDER TITLE
  VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED
• 1610--AVAILABILITY OF RECORDS
• 1611--PRIVACY ACT REGULATIONS

44
The Regulation

• 1612--GOVERNMENT IN THE SUNSHINE ACT REGULATIONS
• PART 1613. EQUAL EMPLOYMENT OPPORTUNITY IN THE
  FEDERAL GOVERNMENT.
• 1650--DEBT COLLECTION
• 1690--PROCEDURES ON INTERAGENCY COORDINATION OF
  EQUAL EMPLOYMENT OPPORTUNITY ISSUANCES
• 1691--PROCEDURES FOR COMPLAINTS OF EMPLOYMENT
  DISCRIMINATION FILED AGAINST RECIPIENTS OF
  FEDERALFINANCIAL ASSISTANCE

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The Court Decisions

• By Fall 2008, there were 395 Supreme Court
  decisions referencing some aspect of Title VII.
• Source LEXIS-NEXIS, a division of Reed
  Elsevier Inc.
• Some creations of the Courts
• Legal proofs for disparate treatment
• Disparate Impact
• Permissible affirmative action
• Racial harassment
• Sexual harassment
• Testers

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How HR Professionals Reduce Compliance Costs?

• Monitor the legal environment (external) for
  changes in compliance requirements.
• Update existing personnel policies when
  necessitated by changes in the legal environment.
• Continually audit the current employment
  practices (internal) to ensure compliance.

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How HR Professionals Reduce Compliance Costs?

• Provide training and information to management
  and supervisory employees.
• Provide training and information to
  nonsupervisory employees.