Labor and Employment Law
Legal construction of the employment environment
Objectives
After appropriate study the study should be able to describe concerns related to equal
opportunities and recruiting, the information available to an employer when considering an
applicant, the theory of negligent hiring, how the tort of defamation could apply to the
employment relationship, testing for eligibility as well as ineligibility, and concerns
surrounding employee appraisals.
See the class syllabus for specifics about assignment requirements.
Read and watch
Chapter 4: Legal Construction of the Employment Environment- The book “Tenth edition, Employment Law For Business” by Dawn Bennet-Alexander & Laura P. Hartman
EEOC Prohibited Practices available at https://www.eeoc.gov/prohibited-employment-
policies practices, look specifically at job advertisement, recruitment, application and hiring,
background checks, and “pre-employment inquiries and…â€(scroll a bit to reach this one) and
then click through the various topics.
“7 Types of Pre-employment Tests Given by Employers†available at
https://www.indeed.com/career-advice/career-development/types-of-pre-employment-testing
“How to Evaluate an Employee: A Performance Review Checklist†available at
https://www.freshbooks.com/hub/leadership/evaluate-an-employee
Write
Report on each of the website(s), article(s) and/or video(s) above.
Report on what you found at the EEOC site.
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decision will need to be made about the future of each one. Each decision will be supported with an analysis of the situation using the relevant legal framework. In general, companies are allowed to terminate employees if the termination is part of a downsizing, which in this case it is. Naturally, however, the issue of severance will be raised, and must be taken into consideration for each of the employees in question. The format will be a discussion of each individual employee, his or her situation, but then the final decision about who to terminate and how will be conducted at the end of the report. The microbrewery is probably a qualified company, with at least 15 employees, or this discussion would not be taking place.
Employee #1 — Mike Williams. Williams is a member of a protected group, being Asian. His performance has been above the median, which gives him a favorable position vis-a-vis any underperforming employees that there might be. He has strong educational credentials, and he has not had a track record of absenteeism. He has made a casual inquiry about labor organization. Another issue is that his position is being made redundant. Also, Williams has trouble communicating with the other employees.
Williams cannot be removed on the basis of his race (under Title VII) or because of his performance, which looks strong. His communication issues are not usually sufficient for dismissal. First, this could raise the specter of the dismissal being race-based. Second, for someone fluent in English it is unlikely that a minor communication deficiency is going to stand up if the dismissal is challenged. However, companies are allowed to remove employees for whom there is no longer a position. Under such circumstances, an employee can reasonably be downsized.
There is some issue about whether his enquiries about organizing are going to cause the company problems, should they decide that Williams is redundant. The National Labor Relations Act forbids the employer from firing an employee “because you join or support a union, or because you engaged in concerted activity for mutual aid and protection” (Department of Labor, 2012). In general, Williams’ activities could be construed as such activity, though at this point the efforts appear to be informal. It would be unwise to release Williams on the basis of such organization activities.
Employee #2: Phillip Price
Price is not a member of a protected group under federal law. He could be under state law, but we do not know the state. His average performance does not make him exceptional or unexceptional in the company. His work with the company was predominantly with the project that has been discontinued. He has some practical experience, but no formal education. He has missed 17 days in the past two months.
Price’s absenteeism problem stands out. No cause has been given for the absenteeism, but the company has also not asked. Still, 17 days in two months, which is less than 60 working days, is clearly exceptional. The employee cannot expect that absences to that degree that have not been addressed with management will not be a problem. The company has the right to discipline Price but before firing on the basis of his absenteeism, the cause for the absenteeism must be determined. If Price’s absenteeism qualifies him for protection under the Americans with Disabilities Act (it does not appear to be the case) or the Family and Medical Leave Act (this is possible), then Price may be subject to certain protections for his absenteeism.
His performance and lack of fit with the organization going forward make a strong case for dismissal. Employees whose roles are now redundant can be removed, especially if they do not have the skills and experience to fill any other positions within the company.
Employee #3 — Sally James
While there is no age limit for protection under the ADEA, there is often the implication that an older worker is being removed because of his or her age. James cannot be dismissed on the grounds of her age. There are two issues, however. The first is that she has no real role in the company any more, having been assigned to the failed marketing endeavor. Her performance with that endeavor was strong, however, and she bears no fault for its failure. It would be difficult, therefore, to remove James on the basis of her performance on the job, especially in light of her long history of excellent performance with the company.
James has also had significant absenteeism in the past two months. For a single mother, it is highly likely that there are extenuating circumstances. However, we do not know the reason for the absenteeism. That should be investigated before making a final decision about James, because she may be entitled to some protections under the Family and Medical Leave Act. Her personal financial circumstances are not relevant to the legalities of this decision.
Employee #4 — Margaret Jones
Jones is a member of a protected group. She cannot be fired on account of being African-American. Jones has a bad perception among the employees, something that could factor into a performance evaluation, especially given the small size of the company and the inherent need of the team members to work closely with one another. However, her primary task is sales. Most of the division’s sales came from her, but sluggish sales were a major problem with the division, so her performance cannot be said to be exemplary. She is recognized as being talented.
Jones also has a major absenteeism problem. The reason for this is not known, but again it should be investigated as she may be afforded some protections under the ADA or the FMLA. Her status as a civil rights activist makes for an interesting proposition, but if her on-the-job performance has been documented, then she can be dismissed regardless of how much trouble she might feel like causing.
Employee #5 — Jenny Smith
As a Hispanic, Smith is a member of a protected group. She has an absenteeism problem, but this is related to her pregnancy. Likely then she will be afforded protections under the FMLA. The company knows what the problem is (morning sickness) and should be in a position to do something about it, either in terms of providing medical assistance or counseling (she is not the first woman to go through morning sickness while employed). Her personal financial circumstances are not relevant to the legalities of this decision.
Smith’s performance is generally considered to be strong. Her skill set makes her an asset in other areas of the company. This makes it difficult to remove her, as there is no documented record of poor performance, and limited cause to claim redundancy.
Analysis
In this scenario, three of the five employees are to be removed. From a legal point-of-view, the best way to view the issue needs to “who should we keep?” There are two reasons for this. First, this view prevents the company from laying off individuals on the basis of traits other than performance. Performance needs to be the critical trait that determines the future of the employee with the company. The second is that strategically, the company needs to focus on moving forward. The way to do that is not to examine in great detail what went wrong in the past, but to look at who can contribute to the company in the future. Those without significant future contributions to the company are apt to be removed as part of the layoff process.
Of the five employees, the ones who are likely to make the most significant contribution in the future are Jenny Smith and Sally James. Both have demonstrated that they are competent in their fields. Moreover, neither one displayed poor performance over the course of the failed marketing project. Both have skill sets that can be used in the future by the company on either ongoing operations or on other projects.
The three employees who should be terminated are therefore Mike Williams, Phillip Price and Margaret Jones. Williams and Price were both brought into the company for this project, and it does not appear that either of them has a role after the project. Both are IT professionals whose skill sets are not easily adaptable to other roles within the company. Jones is a sales professional, so her role is adaptable, but one of the reasons the project fell was because sales were sluggish. She simply did not succeed in her basic, core position with the company. Any employee can be terminated if their project was cancelled and their performance in the context of that project was below the acceptable standards.
Implementation
All three of the terminated employees are members of protected groups, and two might have protections under the FMLA or ADA. Therefore, it is not recommended that any of them be removed on the basis of absenteeism, or anything other than performance. This means that the terminations will require an offer of severance and in good faith some retraining assistance. The latter might not be required because all three employees are specialists in positions that are often transient, where new opportunities are not particularly hard to come by. Thus, a severance package in accordance with time served will be sufficient — this is a layoff, not a firing.
Post-Termination Litigation
It is unlikely that either Williams or Price would engage in post-termination litigation. Williams is not likely to sue for being fired on account of being Asian since the case would be quite weak. Price probably has no case, and certainly not under federal law. Both of these employees performed well enough to continue, but their specialties are often subject to contract work and project work. When projects end, so do positions and this is normal for IT roles. That the company has basically no work for them in light of the project cancellation is an effective defense should any action arise.
Jones is more likely to engage in a lawsuit, given her history of filling complaints in an activist fashion. She could claim any number of issues, but the reality is that her performance was poor. Jones has ample employment opportunities as a sales professional, so might prefer to focus on finding a new opportunity rather than suing a small microbrewery. Sales people do tend to be pragmatic and she is most likely to take that course of action. If she decides to file suit, she is likely to fail. Her performance is sales was poor, which alone could be grounds for termination. However, the company may also wish to argue that her poor sales performance made her a poor fit for existing sales opportunities elsewhere within the company.
Conclusion
Letting go of employees is never easy. All of the employees have arguments in favor of keeping them, but the company needs to approach the issue from a neutral frame of mind. It needs to evaluate the employees based on their performance and use this as the basis for determining who will be retained and who will be removed. It is worth considering that in this case the availability of future roles within the company also plays a role in the decision. By focusing the decision on performance-based metrics, the company works within the confines of the law and defends itself against any post-termination litigation. Retaining Smith and James is the best course of action for the company, since their performance on the project was strong and they have clear future roles for the company as well.
Works Cited:
Department of Labor. (2012). Employee rights under the National Labor Relations Act. U.S. Department of Labor. Retrieved April 21, 2013 from http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf
Are you busy and do not have time to handle your assignment? Are you scared that your paper will not make the grade? Do you have responsibilities that may hinder you from turning in your assignment on time? Are you tired and can barely handle your assignment? Are your grades inconsistent?
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Students barely have time to read. We got you! Have your literature essay or book review written without having the hassle of reading the book. You can get your literature paper custom-written for you by our literature specialists.
Do you struggle with finance? No need to torture yourself if finance is not your cup of tea. You can order your finance paper from our academic writing service and get 100% original work from competent finance experts.
Computer science is a tough subject. Fortunately, our computer science experts are up to the match. No need to stress and have sleepless nights. Our academic writers will tackle all your computer science assignments and deliver them on time. Let us handle all your python, java, ruby, JavaScript, php , C+ assignments!
While psychology may be an interesting subject, you may lack sufficient time to handle your assignments. Don’t despair; by using our academic writing service, you can be assured of perfect grades. Moreover, your grades will be consistent.
Engineering is quite a demanding subject. Students face a lot of pressure and barely have enough time to do what they love to do. Our academic writing service got you covered! Our engineering specialists follow the paper instructions and ensure timely delivery of the paper.
In the nursing course, you may have difficulties with literature reviews, annotated bibliographies, critical essays, and other assignments. Our nursing assignment writers will offer you professional nursing paper help at low prices.
Truth be told, sociology papers can be quite exhausting. Our academic writing service relieves you of fatigue, pressure, and stress. You can relax and have peace of mind as our academic writers handle your sociology assignment.
We take pride in having some of the best business writers in the industry. Our business writers have a lot of experience in the field. They are reliable, and you can be assured of a high-grade paper. They are able to handle business papers of any subject, length, deadline, and difficulty!
We boast of having some of the most experienced statistics experts in the industry. Our statistics experts have diverse skills, expertise, and knowledge to handle any kind of assignment. They have access to all kinds of software to get your assignment done.
Writing a law essay may prove to be an insurmountable obstacle, especially when you need to know the peculiarities of the legislative framework. Take advantage of our top-notch law specialists and get superb grades and 100% satisfaction.
We have highlighted some of the most popular subjects we handle above. Those are just a tip of the iceberg. We deal in all academic disciplines since our writers are as diverse. They have been drawn from across all disciplines, and orders are assigned to those writers believed to be the best in the field. In a nutshell, there is no task we cannot handle; all you need to do is place your order with us. As long as your instructions are clear, just trust we shall deliver irrespective of the discipline.
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There is a very low likelihood that you won’t like the paper.
Not at all. All papers are written from scratch. There is no way your tutor or instructor will realize that you did not write the paper yourself. In fact, we recommend using our assignment help services for consistent results.
We check all papers for plagiarism before we submit them. We use powerful plagiarism checking software such as SafeAssign, LopesWrite, and Turnitin. We also upload the plagiarism report so that you can review it. We understand that plagiarism is academic suicide. We would not take the risk of submitting plagiarized work and jeopardize your academic journey. Furthermore, we do not sell or use prewritten papers, and each paper is written from scratch.
You determine when you get the paper by setting the deadline when placing the order. All papers are delivered within the deadline. We are well aware that we operate in a time-sensitive industry. As such, we have laid out strategies to ensure that the client receives the paper on time and they never miss the deadline. We understand that papers that are submitted late have some points deducted. We do not want you to miss any points due to late submission. We work on beating deadlines by huge margins in order to ensure that you have ample time to review the paper before you submit it.
We have a privacy and confidentiality policy that guides our work. We NEVER share any customer information with third parties. Noone will ever know that you used our assignment help services. It’s only between you and us. We are bound by our policies to protect the customer’s identity and information. All your information, such as your names, phone number, email, order information, and so on, are protected. We have robust security systems that ensure that your data is protected. Hacking our systems is close to impossible, and it has never happened.
You fill all the paper instructions in the order form. Make sure you include all the helpful materials so that our academic writers can deliver the perfect paper. It will also help to eliminate unnecessary revisions.
Proceed to pay for the paper so that it can be assigned to one of our expert academic writers. The paper subject is matched with the writer’s area of specialization.
You communicate with the writer and know about the progress of the paper. The client can ask the writer for drafts of the paper. The client can upload extra material and include additional instructions from the lecturer. Receive a paper.
The paper is sent to your email and uploaded to your personal account. You also get a plagiarism report attached to your paper.
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