FOCUS PAPER UNIT 4

GB 546
11/20/2012 PROFESSOR CATES Travis Dorso

The human resource manager can be a key figure in helping companies avoids legal liabilities in today's highly litigious business environment. By carefully monitoring the legal environment in which a company operates and by creating an internal work environment which is sensitive to the legal atmosphere as a whole, the human resource manager can help foster a corporate culture which actively seeks to provide ramifications other than legal conflict for resolving employee-employer disagreement. This research examines specific areas where human resource managers should focus their attention and considers ways in which human resource managers can work toward providing as safe an environment as possible from a corporate standpoint, while still meeting the needs of their employees. Drug Testing One of the areas that has come into the legal spotlight recently is the area of employee privacy with regard to drug testing. Drug testing is increasingly being used by companies as a pre-employment condition. Drug testing as a condition of employment or for employees who have not exhibited other questionable behavior has successfully been challenged in court, but the issue of public safety has also been used to justify such employment procedures. In this way, for example, an airline may require a pre-employment drug screen of its employees because a drug-free workforce is in the public interest. Similarly, a company which does not have a drug screening policy may request that an employee undergo a drug test if that employee is acting in a strange or impaired way. Such behavior can also be used to search the employee's work space for illegal drugs or alcohol (Webster 142). Americans with Disabilities Act The American with Disabilities Act (ADA) also represents an area where human resource managers must hone their skills in order to protect their employers. When the law initially went into effect (in July 1992), it applied to employers with more than 25 employees. As of July 1994, its protection extended to workers at organizations with as few as 15 employees (Perry 84). Ostensibly, the ADA prohibits employment discrimination against people who are otherwise qualified for a position, but who may have any one of a long list of mental or physical disabilities. In addition, the law prohibits discrimination against any condition which an employer perceives to be a disability. To protect against possible problems with the ADA, human resource managers can create an employment environment with the ADA limitations in mind. Identifying the essential functions of each job within the organization is the first step because the ADA prohibits discrimination against those individuals who can perform these "essential" functions (Perry 86). In addition, the human resource manager must communicate to all employees who interview candidates that no questions can be asked which relate to disabilities that the interviewer perceives. This training should be carried over to the organization as a whole in order to foster an environment where disabled employees are welcomed rather

than an environment which is perceived as hostile to those with disabilities (Perry 86).

Sexual Discrimination Sexual and nonsexual harassment are two other areas in which human resource managers must seek to protect their employers. The Equal Employment Opportunity Commission (EEOC) defines unlawful harassment as "verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his or her race, color, religion, gender, national origin, age or disability, or that of his/her relatives, friends or associates" (Platt 29). The Clarence Thomas-Anita Hill hearings cast the national spotlight on sexual harassment, but human resource managers must guard against any form of behavior or communication which can be perceived as providing an atmosphere which encourages both sexual and nonsexual harassment. In an age of an increasingly diverse workforce with individuals from vastly different backgrounds and cultural identities working together, this becomes a more challenging role for the human resource manager to play. Using Temporary Workers Legal problems can also arise from the increased use of temporary workers as companies seek to trim their payroll expenses. Although using an agency can protect employers from some of the difficulties associated with direct employees, other considerations must also be taken into account. When a company uses a temporary worker, the organization falls into the guiding principle known as the loaned servant doctrine. This means that the temporary worker actually has two employers: the company and the agency. As a result, the legal considerations can be significant regarding the rights that the company has regarding performance and discipline. Temporary workers can sue companies if the employer discriminates against them (based on EEOC guidelines) or if another worker in the company harasses them and no remedial action is taken by the employer. To avoid these situations, the human resource manager should deal with agencies that have a strong and positive history, and have a written agreement with the agency regarding who is responsible for hiring and disciplining employees (O'Brian 1). Preventing Problems Written policies and procedures can help employers protect themselves against a variety of potential legal problems, and the employee handbook is the way that many employers and human resources managers set out these procedures (McGreevy 38). Employee handbooks typically contain information that every employee needs, such as legal holidays, vacation scheduling and accrual procedures, sick time, medical benefits and policies regarding EEOC practices. However, care needs to go into the creation of an employee handbook since

some courts have ruled that these handbooks are legal contracts that entitle employees to anything construed as a benefit in the handbook. For example, an employee successfully sued a company whose handbook stated that the employment contract was "at will" (meaning that either party could terminate it without advance notice), but which also laid out specific procedures for terminating an employee. Because all of the procedures were not followed for this employee's termination, he sued (in New Hampshire) and won his case because of the language in the handbook.

Proposition 209 When California passed the California Civil Rights Initiative (CCRI), it set the stage for a new revolution in diversity issues. California, like most states, has affirmative action programs in place which prohibit discrimination in hiring or retaining employees based on minority status. The protection that permitted women and minorities not only to be hired, but also to be promoted in organizations is eliminated under Proposition 209, or so its opponents argued. According to critics, Proposition 209 effectively eliminates preferential treatment (quotas) and could affect programs based on the minority makeup of organizations. Court challenges are expected as the law is implemented, but the entire country will be watching the outcome; if the legislation is held to be constitutional, similar measures will probably pass elsewhere in the nation (Schmidt A32). The effects of Proposition 209 are far-reaching because of the numerous government contractors who are likely to be affected. While state-funded programs would be prohibited from discriminating or favoring one group over another, federally funded programs would still (most likely) maintain their affirmative action requirements. This dual system is likely to bring about additional court challenges and may well pose bureaucratic difficulties as organizations try to find way to accommodate two very separate sets of rules. In some instances, programs which are federally funded are likely to coexist with state-funded contracts; in the first situation, failure to follow affirmative action procedures could result in a lack of funding, yet doing so in the second case would also result in a potential loss of funding. Clearly, administrators will have to be very clear as to which guidelines are applied to which programs, and careful attention will need to be paid to the way in which the courts rule on the various aspects of this legislation (Schmidt A33). Conclusion Today's human resource managers must actively seek out legal information and work to incorporate that information into the work environment. This does not mean that human resource managers must become lawyers, but it does mean that they must recognize the responsibility that they have to their employers, and they should learn to cultivate legal resources in the community and in their industry (Britt 44). By maintaining a close familiarity with the legal environment

of their industry and particular business, human resource managers can help their employers avoid time-consuming and expensive litigation. With the passage of Proposition 209, the entire affirmative action and equal opportunity environment is likely to undergo severe upheaval from a legal point of view, but encouraging and facilitating diversity in the workplace is still the human resource manager's best strategy.

References

Britt, Phil. "Learning More About Employment Law." Savings & Community Banker Sept. 1994: 44. McGreevy, Susan. "Don't Create Employee Rights by Accident." Contractor Jan. 1994: 38, 47. O'Brian, Joseph. "How to Avoid Temporary Headaches." Supervisory Management Mar. 1994: 1-2. Perry, Phillip M. "ADA Missteps." Training Oct. 1994: 84-91. Platt, Henry A. "Nonsexual Harassment Claims Hit HR's Desk." HRMagazine Mar. 1994: 29-34. Schmidt, P. "An End to Affirmative Action?" Chronicle of Higher Education 25 Oct. 1996: A32-A33. Webster, George D. "Respecting Employee Privacy." Association Management Jan. 1994: 142-143, 146.