Overview

Last week, we considered what comprises an employment relationship. This week, we review how employment relationships begin as part of a study that will take us to problems that arise during employment – from the perspectives of both the employee and the employer – to an eventual review of how the relationship ends.

Work is a significant part of most lives. People start jobs or businesses with expectations, hopes and goals. Some careers go smoothly. Others do not. No matter how the trajectory develops, finding a job requires knowledge that one is available. Forms of notice include word-of-mouth, internal postings, online sites, professional publications, headhunters, newspapers, social media, college placement services, job fairs, employment agencies, union hiring halls, bulletin boards, and the low-tech sign in a window that reads: HELP WANTED – APPLY WITHIN. Whether the position is available at IBM, GM, the Department of Veterans Affairs, or a 2-person diner, formation of the relationship between an employer and an employee requires notice that a position is available; from the employer, and an indication of interest; an application, from a prospective employee.

Despite good intentions on the part of most, all methods of recruitment have the potential to be what the text refers to as “an instrument of discrimination.” This lesson deals with the efforts to link applicants with an available position and the pitfalls that can be encountered using some methods despite no intent to discriminate. Examples will include methods of recruitment that restrict access based on protected class characteristics (including what defines protected classes), limitations on inquiries concerning medical conditions, and the controversies surrounding employer access to and reliance on social media activity.

We will also review affirmative action programs (AAPS) in terms of what an employer must do to establish a plan that conforms with Title VII and the myriad challenges that can result.

We will also learn the standards for respondeat superior; let the master answer for employee wrongdoing committed within the scope of duties, and the extension of liability for acts not within the scope of duties but foreseeable if background checks had been conducted, which is negligent hiring.

We will also review problems that can arise based on employer promises, resulting in breaches of implied or written contracts, and employee misrepresentation of qualification or credentials. We will consider the distinction between arrests and convictions in criminal histories, learn about negligent referrals, reliance on credit reports, tort actions applicants can file against a company for defamation, requirements under the Immigration Reform and Control Act (IRCA) concerning eligibility to work in the U.S., and limitations on accessing an applicant’s social media sites.

We will also consider the wide expanse of tests employers rely on, including those devised to identify drug use, honesty, personality traits, medical conditions, genetics, intelligence or physical ability to perform a job.

Lastly, we will study the requirements and circumstances when drug testing is permissible. We will learn about medical examinations and their use in making hiring decisions, ADA restrictions on such exams, the burgeoning area of genetic testing, the limits on polygraph exams per the Employee Polygraph Protection Act, scored tests of intelligence, knowledge and ability and EEOC guidance concerning disparate impact, job relatedness, business necessity and accommodation of disabled persons when tests are administered.

Learning Objectives

At the end of this week, you will be able to:

• Identify and analyze the concepts of negligent hiring and respondeat superior.
• Evaluate discrimination issues that arise from recruiting processes 
• Analyze the validity of affirmative action programs.

Readings

Refer to the course schedule for details on this week's readings.