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

Employment Regulation in the Workplace: Basic Compliance for Managers by Robinson, Franklin, and Wayland. Chapter 1 Impact of Regulation on Human Resource Practices Fall 2009. Federal Laws Regulating the Workplace. Date Statute 1927 Railway Labor Act

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

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  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 Veteran’s 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 Disciplinary Actions Wage and Salary

  6. 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

  7. 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

  8. 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

  10. Common Legal Source Citations of Cases Steelworkers v. Weber 443U.S.193, 205 (1979) Beginning Page Volume Year of Decision Legal Reporter Specific page on which information is found

  11. Avoiding Confusion in Citations of Statutes Title VIIis 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)

  13. 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.

  14. 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). FDR’s Folly • Gene Smiley (2003). Rethinking the Great Depression • Amity Schlaes (2007). The Forgotten Man

  16. 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.

  17. The Second Wave of Federal Regulation • John Kennedy’s New Frontier and Lyndon Johnson’s 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. • American’s with Disabilities Act of 1990. • Civil Rights Act of 1991. • Family Medical Leave Act of 1993.

  18. 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.

  19. 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 won’t 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 housing—even 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

  20. 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, Wendy’s, Burger King and McDonalds.

  23. 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 attorney’s fees average $240,000 per employment trial. • Punitive and compensatory damages under Title VII may run as high as $300,000 per aggrieved party.

  24. 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 organization’s actions.

  25. 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)

  26. 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

  27. 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]

  28. Occupational Safety and Health Administration • Agency: Department of Labor • Enforces: • Occupational Safety and Health Act

  29. 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)

  30. 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

  31. 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

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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 .

  37. 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 UniversityStudy.

  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.

  41. 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

  45. The Court Decisions • By Fall 2008, there were395 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

  46. 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.

  47. How HR Professionals Reduce Compliance Costs? • Provide training and information to management and supervisory employees. • Provide training and information to nonsupervisory employees.

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