CHAPTER 14
Employment
CONTENTS
A. Chapter Competencies
B. Introduction
C. Fair Labor Standards Act
D. Illegal Job Discrimination
E. Americans with Disabilities Act
F. Mandatory Verification of
Employment Status
G. Résumé Fraud
H. Occupational Safety and Health
Administration
I. Unions
J. Answers to Case Example
Questions
K. Answers to End-of-Chapter
Questions
Chapter Summary
Students are introduced in this chapter to employment laws that affect employees’ wages, issues of discrimina-
tion, and verification of worker eligibility for employment in the United States. Discussion of the Fair Labor Stan-
dards Act (FLSA) of 1938 is used as a starting point. The FLSA eliminated unfair methods of compensation and
labor conditions injurious to the health and efficiency of workers.
Illegal job discrimination is the basis for many lawsuits by employees. An employer cannot discriminate
against workers on the basis of race, skin color, religion, gender, pregnancy, national origin, age of employee
(if employee is at least 40 years old), or union membership.
The Americans with Disabilities Act (ADA), which became effective in 1992, is an uncompromising procla-
mation of this country’s commitment to equal opportunity for persons with disabilities. The ADA seeks to elim-
inate the barrier of stereotypes for persons with disabilities who are able to perform on the job.
The mandatory verification of employment status is necessary to insure that those people who are not legally
eligible to work in the United States do not work there. It requires that prospective workers provide necessary
documentation proving authorization to work, which must be verified by employers.
Misrepresentation contained in a résumé is termed résumé fraud or credentials fraud. These misrepresen-
tations can relate to the college attended, degrees earned, prior jobs, prior job responsibilities, salary history,
certifications earned, or virtually any other factor contained in a résumé.
Unions are organizations of workers whose mission includes negotiating for higher wages, better benefits,
greater job stability, and safer workplaces. Union membership customarily enhances the bargaining power
of workers because unions are acting on behalf of entire groups of employees. Management, not surprisingly,
usually prefers a nonunionized workplace where its control is unbridled.
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A. Chapter Competencies
After studying Chapter 14, the student should be able to
1. identify the scope of the employment law.
2. describe the Fair Labor Standards Act (FLSA).
3. state the criteria for exceptions to the minimum wage requirement.
4. state the wages an employee is entitled to be paid for working in excess of 40 hours a week.
5. identify the exempt categories of employees for overtime pay.
6. explain the duties test and salary test required to qualify for the executive exemption.
7. identify the tasks that can be counted as time worked.
8. describe the requirements under the Equal Pay Act (EPA).
9. define “comparable worth.”
10. identify the requirements mandated by the FLSA for younger employees.
11. list the two options available to an employee whose rights under the FLSA have been violated.
12. explain the provisions under the Family and Medical Leave Act (FMLA).
13. explain the meaning of “at-will employment.”
14. name five protected classes for employment purposes.
15. explain Title VII.
16. explain the term “disparate treatment.”
17. explain the term “disparate impact.”
18. describe the EEOC rules and procedures for filing charges.
19. list at least five areas that cover illegal job description.
20. name four remedies available for a Title VII violation.
21. identify the two elements necessary for relief under Bona Fide Occupational Qualification (BFOQ).
22. explain the term “business necessity.”
23. explain what a plaintiff must prove to establish a retaliatory discharge.
24. state the circumstances under which an employer can refuse to hire an applicant who speaks mini-
mal English.
25. identify who is included within the protected class under federal law in the category of age.
26. list the two types of illegal action in sexual harassment.
27. describe the remedial actions that should be taken for sexual harassment complaints.
28. name five types of activities that can constitute sexual harassment.
29. state the ways an employee can relay the unwelcome nature of sexually harassing conduct.
30. identify the categories of discrimination increased by the Civil Rights Act of 1991.
31. explain what a “glass ceiling” is.
32. identify the aspects of employment to which the Americans with Disabilities Act (ADA) applies.
33. define “disability.”
34. differentiate between the essential and nonessential functions of a job.
35. identify the areas to which applications of reasonable modifications apply.
36. explain the term “undue hardship.”
37. identify some of the prohibited questions an employer cannot ask when interviewing a disabled
applicant.
38. identify who an employer can require to submit to a medical exam before making a job offer.
39. list at least four kinds of potential liabilities a defendant can face in a lawsuit.
40. differentiate between an immigrant and an illegal alien.
41. state the duty of an employer under the Immigration Reform and Control Act.
42. identify the penalties for failing to comply with the Immigration Reform and Control Act.
43. explain the term “résumé fraud” (also called “credentials fraud”).
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44. describe the function of the Occupational Safety and Health Administration (OSHA).
45. explain the function of collective bargaining.
46. identify at least two acts prohibited by the National Labor Relations Board (NLRB).
B. Introduction
❊The employer-employee relationship is fertile ground for lawsuits against the employer.
■These cases seek to enforce employment laws and can take one of two forms.
■Employment law is far-reaching.
C. Fair Labor Standards Act
❊Explain the purpose and mandates of the Fair Labor Standards Act (FLSA).
■State that the Act has been amended and updated numerous times since its original passage.
❊Minimum wage.
■The FLSA requires that, with few exceptions, employers involved in interstate commerce pay
employees at least the minimum wage set by Congress.
■The minimum wage is increased from time to time as Congress sees fit.
■Explain that states may specify a higher minimum wage. As of June, 2003, the minimum wage
was $5.15 an hour.
■Explain the exceptions to the minimum wage mandated by the FLSA.
■Low sales exception to minimum-wage requirement.
•Excepted from the minimum-wage requirement are employers with less than $500,000 in
annual sales.
•Explain that in some cases courts have said that “Common ownership and a close functional
and economic relationship between physically separated units of a business are not sufficient
to make combined units a single establishment, particularly where the geographic separation
is substantial.”
■Tips exception to minimum-wage requirement.
•Another exception to the minimum-wage requirement applies to employees who routinely
receive at least $30 per month in tips on the job.
•For those employees, an employer can credit a percentage of the tips against the hourly
minimum-wage requirement.
•However, the credit cannot exceed the tips actually received by the employee.
•In those states that have adopted higher minimum-wage laws, the amount the employer will
have to pay after applying the tip credit will be higher.
■Training wage exception to minimum-wage requirement.
•An employer can pay a specified training wage below minimum wage to a limited class of
employees.
•The application of this exception is limited.
•Employers are prohibited from displacing employees to hire young people at the training
wage.
❊Overtime pay.
■The FLSA requires that certain employees who are paid on an hourly basis and who work more
than 40 hours in one week be paid at least one-and-one-half times their regular pay for the hours
in excess of 40.
■Exempt employees.
•The statute contains an exemption to the overtime and minimum-wage requirements.
•Employees denied overtime pay may contest their classification.
•Two general rules apply: (1) To qualify, an employee must pass a salary test and a duties test;
and (2) employees paid an hourly wage are nonexempt regardless of their duties.
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■Executive employees.
•To qualify for the executive exemption, the employee must meet a duties test and a salary test.
•To qualify as an executive, the employee’s duties must include specific duties and salary.
■Administrative and professional employees.
•In addition to executive employees, administrative and professional employees are also exempt
from the overtime and minimum-wage requirements of the FLSA.
•The duties and salary tests also apply to these employees.
❊Time worked.
■The FLSA identifies what constitutes time worked for purposes of determining the number of
hours for which an employee is entitled to hourly pay and for determining whether an employee
has worked overtime.
■An employer is legally obligated to pay employees for the time they work. Likewise, an employer
is not required to pay for time the employee does not work.
■Therefore, an employee with a split shift (for example, a server who works lunch and dinner with
a few hours off in the middle of the afternoon) is entitled to payment only for the hours worked
and not for the hours off in the middle of the split shift.
■Similarly, if an employee is sent home part way through a shift because of lack of work, the em-
ployee is not entitled to payment for the time he did not work.
❊Equal pay for equal work.
■A 1963 amendment to the FLSA, called the Equal Pay Act (EPA), requires equal pay for equal
work.
■An issue that often arises is whether jobs are the same.
■The test is whether they have a “common core” of tasks; or, stated otherwise, whether “a sig-
nificant portion” of the two jobs is identical.
❊Comparable worth.
■The EPA applies only when two people are doing the same job, or jobs that require the same
skills and responsibility.
■Sometimes men and women work at jobs that are quite different and one is paid more than the
other, yet the value of their work to the employer is more or less equal.
■Courts have rejected the argument that comparable worth requires equal pay. If adopted, courts
would be required to evaluate the worth of different jobs and rank them according to their
relative values, something courts seem ill-equipped and unwilling to do.
■Advocates of equal pay for jobs of comparable worth argue that the concept would address the
undervaluation of jobs traditionally associated with women, a circumstance that is not addressed
by the EPA.
❊Retaliatory discharge.
■If an employee believes she is being paid unfairly and complains or commences a lawsuit under
the FLSA, the employer is often irritated and sometimes antagonistic toward her.
■The EPA addresses this circumstance by prohibiting an employer from discharging or otherwise
discriminating against such an employee.
❊Restrictions on child labor hours.
■Many employees in hotels and restaurants are young, often high school or even junior-high students.
■The FLSA provides a minimum age for employees, restricts the number of hours younger
employees can work, and limits the tasks they can perform.
■The goal of the Act is to provide young people with nonhazardous working conditions and hours
that do not interfere with their schooling or health.
■Some states have additional, stricter rules that further limit the hours young people can work.
❊Restrictions on child labor tasks.
■The federal law, as well as some state laws, limit the types of work young employees can do.
■These limitations are intended to protect young people’s safety.
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❊Enforcement of the FLSA.
■An employee whose rights under the FLSA have been violated has two options in pursuing
the case: (1) file a claim with the Wage and Hour Division of the United States Department of
Labor, or (2) commence a lawsuit against the employer seeking damages and attorney’s fees.
❊Family and Medical Leave Act.
■The Family and Medical Leave Act (FMLA) addresses a problem that employees often face in
obtaining time off from work to care for sick children or other family members.
■The FMLA, which was made effective in 1993, entitles eligible employees to take up to
12 weeks of unpaid leave per year for childbirth, adoption, foster placement, or to care for a
child, spouse, or parent who has a serious health condition, or for the employee’s own serious
health situation.
❊At-will employment.
■In many states, employment arrangements between employers and employees are considered
“at-will.”
D. Illegal Job Discrimination
❊Notwithstanding an employer’s right to terminate an employment contract based on the at-will
doctrine, an employer cannot discriminate against workers in the protected classes.
■Discrimination in employment is the basis for many lawsuits.
■These cases are based on the Civil Rights Act of 1964, the Civil Rights Act of 1991, and the
ADA, all of which have enhanced employees’ rights.
❊Title VII of the Civil Rights Act of 1964.
■The statute that outlaws most grounds for discrimination is Title VII of the federal Civil Rights
Act of 1964.
■The discrimination can be very subtle and therefore difficult to detect as well as prove.
■Title VII outlaws both the following.
•Disparate treatment discrimination, which is intentional discrimination based on considerations
of race, color, religion, gender, or national origin.
•Disparate impact discrimination, which involves neutral practices that result, often uninten-
tionally, in unequal treatment.
❊Filing a complaint.
■A discrimination charge must be filed with the EEOC, which has regional offices throughout the
country.
■The EEOC has specific rules and procedures for filing and strict time limits within which cases
must be pursued.
■Due to a large caseload, the EEOC has a sizable backlog and cannot fully pursue every claim.
❊Remedies.
■The remedies available to a successful plaintiff in a Title VII case are substantial and were recently
expanded. Until 1991, the remedies were limited to the following:
■Back pay, which refers to the difference between
•The amount of money the plaintiff would have earned in the absence of discrimination, which
might include increased salary that would have accompanied a promotion that she was denied
or salary that was lost due to wrongful termination, and
•The amount of money the plaintiff earned as the victim of discrimination. This might include
her salary without the raise she should have received, or pay earned in alternate employment,
or if the plaintiff did not seek another job, what she could reasonably have earned had she
looked for employment.
•Prior to 1991, compensatory and punitive damages were available in discrimination cases only
for plaintiffs who could prove intentional job discrimination based on race or skin color. Com-
pensatory damages include, in addition to back pay, future monetary losses, emotional pain
and suffering, mental anguish, and other nonmonetary losses.
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•The categories of plaintiffs to whom a judge can award compensatory or punitive damages in
a Title VII case was greatly expanded by the Civil Rights Act of 1991, although intentional
discrimination remains a prerequisite (as opposed to disparate impact). The Act authorizes
compensatory and punitive damages as a remedy for plaintiffs seeking redress, not only from
intentional discrimination based on race or skin color, but also those victimized by intentional
discrimination based on gender, religion, and national origin.
•These caps do not apply to back pay awards; they are limited only by the amount of pay lost.
•Punitive damages can be awarded only in those circumstances in which the employee can show
that the employer engaged in illegal discrimination “with malice or with reckless indifference
to the federally protected rights” of the employee.
■Expert witness fees.
•This is an important addition because most discrimination cases require one or more expert
witnesses, such as a specialist on gender stereotyping in a gender discrimination case.
•Each expert witness must spend time reviewing the case, researching particular issues, preparing
for trial with the plaintiff’s attorney, and testifying. As a result, the fees are typically quite high.
❊Defense of bona fide occupational qualification.
■BFOQ relieves an employer from liability for disparate treatment (intentional) or discrimination
where selection of an employee based on gender, religion, age, or national origin is reasonably
necessary for the normal operation of the employer’s business.
■This defense is construed narrowly by the courts.
■To qualify, two elements are necessary.
■Note that BFOQ is not a defense to a claim of racial discrimination.
❊Defense of business necessity.
■If a neutral selection criterion has a disparate impact on a protected class, but constitutes a busi-
ness necessity, the requirement will not violate the Civil Rights Act of 1964.
❊Prohibited and permitted interview questions.
■To help ensure that employers do not discriminate against members of a protected class, the law
bars employers from asking certain questions at employment interviews.
■Permissible questions relate to the job the candidate is seeking.
■Prohibited questions seek information relating to a candidate’s potential membership in a pro-
tected class.
■The ban applies to all aspects of the hiring process, including the application form, the interview,
and questions contained in any testing materials the employer may utilize.
❊Race.
■As we have seen, race is one of the grounds on which Title VII outlaws discrimination. The statute’s
main objective concerning race was to eliminate discrimination against African Americans.
■In the words of the United States Supreme Court, the prohibition against discrimination in employ-
ment on the basis of race bars “discriminatory preference for any racial group, minority or majority.”
■The outlawed discrimination includes not only refusals to hire, resistance to promote, and unjusti-
fied firings, but also all other types of discrimination, such as refusal to allow an employee to wear
an Afro-American hairstyle and terminating a white employee for associating with a black colleague.
■An employer can defend against a claim of discriminatory firing by establishing a legitimate,
nondiscriminatory reason for the termination.
■Racially hostile work environment.
•An employment atmosphere that permits racially derogatory comments, jokes, and conduct
has been determined to significantly and adversely affect the psychological well-being of an
employee.
❊National origin.
■National origin is another protected class.
■The law also protects “hyphenated Americans,” such as Italian Americans, Polish Americans, and
Mexican Americans.
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■If a plaintiff is unable to prove national origin prejudice on the part of the employer, the employee
will likely not win a discrimination lawsuit.
■Fluency in English.
•Refusal to hire someone whose English is faltering may constitute illegal discrimination on the
basis of national origin.
•If fluency in English is not required for the job, as is the case for housekeeping personnel at
a hotel or dishwashers at a restaurant, refusal to hire based on poor language skills would be
illegal.
❊National origin and accent discrimination.
■A person from another country may be knowledgeable about English but speak with an accent.
Said one court, “Accent and national origin are inextricably intertwined.” The law in this area is
very important to managers in the accommodations industry, where so many employees are
foreign-born.
■If the accent does not interfere with the ability to perform the job, the employer cannot refuse
to hire or promote or otherwise discriminate on that basis.
❊Religion.
■Accommodating religion-based requests for days off can complicate an employer’s work
schedule.
■Must an employer oblige employees’ requests for days off to celebrate religious holidays? If the
employer can demonstrate that such an accommodation would cause undue hardship to the
business, it can refuse to grant the days off.
■An employer is required to accept schedule changes prompted by religious observance and
arranged by the employees unless there is a good reason not to permit the substitution, as where
the alternate worker lacks necessary skills to do the job.
■The employee must establish that the religious foundation for the requested accommodation is
bona fide before the request is made.
■Accommodating employees who need these days off on a regular basis may cause a hardship to
employers.
❊Gender.
■An employer cannot refuse to grant women or men a benefit of employment based on their
gender. For example, paying men more than women for the same job responsibilities, based
only on gender, constitutes illegal discrimination.
■The protection against gender discrimination is not limited to females, but also protects males.
■Proving that an employer’s discriminatory acts are based on gender can sometimes be difficult.
■Competency is required.
•To establish a case of discrimination for failing to hire or promote based on gender, plaintiffs
must establish that they are qualified for the position they seek.
❊Gender-differentiated grooming standards.
■A number of cases involve male employees who were fired for failing to comply with grooming
standards imposed on men but not women.
■The objective of Title VII is to equalize employment opportunities.
■Said the court, “[A]n employer is permitted to exercise legitimate concern for the business image
created by the appearance of its employees.”
❊Sexual harassment.
■Sexual harassment is a form of sexual discrimination and constitutes a violation of Title VII.
•Sexual harassment includes two types of illegal action.
–Quid pro quo sexual harassment.
–Hostile environment sexual harassment.
•The types of activity that can constitute sexual harassment are many and include insults,
pressure for sexual activity, repeatedly asking someone out on a date when the invitee has
indicated a lack of interest, suggestive sounds, obscene gestures, lewd pictures, touching,
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pinching, grabbing, brushing against someone, coerced sexual intercourse, and giving per-
sonal gifts.
•Cases have established common patterns of victims’ reactions to sexual harassment, including
distraction, inability to work, anger, anxiety, depression, sleeping problems, and other physi-
cal ailments.
•Casual or isolated incidents of discriminatory conduct such as a few sexual comments or slurs
will not constitute a hostile environment.
■Frequency of offending conduct.
•Customarily, the objectionable conduct in hostile environment cases occurs repeatedly over a
period of time.
■Same-gender sexual harassment.
•In many cases alleging sexual harassment, the offending employee is male and the victim is
female. That fact notwithstanding, sexual harassment can also be perpetrated by a female
against a male.
•Prior to 1995, a question existed whether sexual harassment could occur between two males
or two females. The United States Supreme Court resolved the issue in Oncale v. Sundowner
Offshore Services, Inc. (1998), holding that sexual harassment can occur between two people
of the same gender.
■Unwelcome conduct.
•A critical factor for sexual harassment is that the activity be unwelcome by the employee and
this fact is known by the harasser.
•Consent alone does not establish that the conduct is welcome.
•In some circumstances, the unwelcome nature of the conduct can be implied from the nature
of the activity, such as coerced (nonvoluntary) sexual intercourse. In other circumstances, the
conduct’s offensiveness will be less clear and the employee must relay that it is not appreciated.
•If a supervisor asks an employee out on a date for the first time, the request is normally not
sexual harassment, even if the employee refuses. If, following the refusal, the supervisor
continues to invite that employee on dates, the repeated requests may constitute sexual
harassment.
■Employer liability.
•Employers such as hotels and restaurants often attempt to avoid liability by claiming that a
supervisor’s harassing conduct should not be attributable to the employer.
•The theory of the employer’s liability is respondeat superior.
•The employer can escape liability if it satisfies three elements constituting the defense.
■Importance of remedial action.
•An employer should promptly address all sexual harassment complaints by investigating the
charges and taking appropriate remedial action.
■Sexual harassment by co-workers.
•An employer may be liable for sexual harassment not only when supervisors initiate the
harassment, but also when co-workers harass an employee.
■Sexual harassment by customers.
•The reasoning for this rule is that the employer ultimately controls the conditions of the work
environment and has a duty to protect employees from abuse.
•An employer that takes prompt and substantial action to protect employees from customer
harassment will avoid liability.
■Policies and complaint procedures.
•When warranted, appropriate and prompt remedial action should be taken.
❊Pregnancy.
■Female workers who become pregnant have historically been subject to termination, even
though they were able to perform their job responsibilities. Pregnant employees now have legal
protection against discrimination on the basis of pregnancy.
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■The basic principle of the Act is that women who are pregnant or affected by related conditions
must be treated the same as other applicants and employees; adverse job action can only be based
on the inability to work. A woman is therefore protected against such practices as being fired or
forced to take a leave of absence because she is pregnant.
■An employer could not terminate a pregnant woman whose doctor requires her not to work if
the employer allows workers with other disabilities to take a leave of absence. This is an impor-
tant right for a pregnant worker since, with a leave of absence, the employee preserves her right
to the job, seniority, and benefits.
■Business necessity.
•If an employer can show that a business necessity renders pregnant employees unfit, the
employer can require pregnant employees to take a leave of absence pending wellness follow-
ing birth.
■Reinstatement after giving birth.
•Reinstatement policies for employees returning to work after giving birth must be the same as
for employees returning to work after absences due to other temporary disabilities.
•The EEOC has declared that an employer cannot prohibit an employee from returning to work
during a specified length of time after childbirth. Instead, individualized determinations of the
time needed for recovery should be made in the same manner adopted for other disabilities.
■Abortion issue.
•The courts have held that discharging an employee on the basis of a statement that she is
considering an abortion, has had one, or intends to have one constitutes illegal pregnancy
discrimination.
❊Age.
■As medical developments have expanded life expectancy and the American workforce has
aged, issues of age discrimination arise with greater frequency and take on heightened
importance.
■An employer may prefer a 25-year-old for a wait job over a 60-year-old. Can the employer fire
or refuse to hire the older person? The answer is no; if an employer opts not to hire or fires the
older worker because of age, the employer will be liable for age discrimination.
■The ADEA attempts to balance the needs of seasoned workers with those of the business
community.
■Also, an employer can refuse to hire older workers if it can be shown that youth is a legitimate
business necessity.
❊Retaliatory discharge.
■It is illegal for an employer to retaliate against an employee who files a complaint with the EEOC
or otherwise objects to or protests an employer’s violation of civil rights laws.
❊Mixed types of discrimination.
■Sometimes an employer will discriminate against a worker on more than one illegal ground.
E. Americans with Disabilities Act
❊This Act, which became effective in 1992, is an uncompromising proclamation of this country’s
commitment to equal opportunity for the disabled.
■The number of Americans with disabilities is estimated to be at 43 million.
■Prior to the adoption of the ADA, many employers declined to hire people with disabilities
because of fears that they would be unable to perform the job, would frequently be absent, or
would require a lot of assistance.
■In the hospitality industry, the ADA has effectuated fundamental changes in personnel policies.
■The ADA seeks to eliminate the barrier of those stereotypes for disabled persons who are able to
perform on the job.
■Essential functions are the core responsibilities of a job, as distinguished from marginal or inci-
dental assignments.
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❊Essential functions.
■In determining what functions are essential to a job, a court will consider the following.
•Examples of essential functions in the job of a server are lifting, carrying, and lowering heavy trays.
■The following are circumstances that may render a job function essential.
❊Reasonable accommodation.
■If an employee with a disability is able to perform the essential functions of the job with a
reasonable accommodation, the employer may be obligated to make the adjustment.
•While employers have expressed concerns about the cost of accommodations, studies have
concluded that over 70 percent of accommodations cost less than $500, and 50 percent cost
less than $50.
•Some tax incentives are available for providing accommodations. Employers are not required
to provide personal use items such as hearing aids or eyeglasses.
•The employer’s duty to provide reasonable modifications applies not only to applicants for
employment, but also to employees already on staff who are or become disabled and cannot
perform their original jobs.
❊Undue hardship.
❊Preference not required.
■An employer is not required to give preference to a disabled person, but can instead hire the most
qualified applicant.
■An employer cannot make employment decisions based on an inability to perform nonessential
functions of the job, which are marginal tasks that do not qualify as essential functions.
❊ADA impacts on the application process.
■The ADA permeates all aspects of the hiring decision.
■At the preemployment interview, an employer cannot ask job applicants about the nature of a
disability.
■Depending on the job, permissible questions might include: Can you lift and carry a 20-pound
tray? Will you please demonstrate your ability to do this?
■The only people entitled to see the medical report are first-aid personnel, supervisors who need
the information to determine necessary restrictions and accommodations, and government offi-
cials investigating compliance with the ADA.
❊Drugs and illnesses.
■An employer can discriminate against a person who uses illegal drugs when making employment
decisions.
■Diseases that are on the list include hepatitis A, Salmonella typhi, Staphylococcus aureus, and
Staphylococcus pyogenes.
■An employer can refuse to hire a would-be food handler who has these illnesses.
■With the list, the Secretary of Health and Human Services publishes symptoms that may indi-
cate the presence of one of the listed diseases.
■A restaurant that refuses to hire a food handler with AIDS because of the disease violates the ADA.
❊Past disabilities and caregivers.
■An employer cannot refuse to hire a recovered cancer patient.
■Although the employer may fear that an applicant with a disabled child might frequently be absent,
that relationship cannot be used as a reason for rejecting the applicant.
❊Pursuing an ADA case.
■The ADA encourages would-be plaintiffs to resolve their complaints through mediation rather
than litigation.
■The potential liability that a defendant faces in a lawsuit is significant.
■The ADA encourages employers to attempt reasonable accommodation by relieving them from
liability for compensatory damages where they made a good-faith effort in consultation with the
disabled person to identify and make a reasonable accommodation.
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■For a plaintiff to win punitive damages, he/she must prove that the employer acted with malice
or reckless indifference to the rights guaranteed under the ADA.
■The responsibilities of employers to disabled employees and job applicants are triggered only
when the disabled person is able to perform the essential functions of the job with or without
reasonable accommodations.
■The Act does not protect an applicant or employee who cannot perform the essential compo-
nents of a job.
F. Mandatory Verification of Employment Status
❊Not everyone in our country is legally entitled to work here.
❊The law restricts entrance to this country. While tourists are permitted to come in large numbers,
only a limited number of people can enter each year for other purposes.
❊To immigrate to the United States to attend school, work, or otherwise live here requires permis-
sion from the Immigration and Naturalization Service (INS).
❊An immigrant in the United States is a citizen of another country who enters this country
with authorization from the INS. One who enters without the necessary approval is an illegal alien.
❊Immigration Reform and Control Act.
■The primary purpose of the Employment Eligibility Verification Form, commonly referred to as
Form I-9, is to verify that the individual is authorized to work in the United States.
■The employee must present identification and proof that he or she has permission from the INS
to work here.
■The employer is required to examine the document(s) to determine if, in the words of the
statute, it “reasonably appears on its face to be genuine.”
■If the employee has not produced the necessary documents by the end of 21 days, the employer
must terminate that worker.
■When reviewing documents to satisfy the IRCA, it is the employer’s responsibility to check the
expiration dates. An expired document is not adequate proof of a person’s status.
■The penalty for hiring an illegal alien is a cease-and-desist order, which requires the employer to
terminate the employee, and a fine that ranges from $250 to $2,000 for each unauthorized alien
for a first offense. Fines can range up to $5,000 per illegal worker for a second offense, and up
to $10,000 per illegal worker for a third offense. The law intentionally makes repeat offenses
prohibitively expensive.
■While the Civil Rights Act outlaws discrimination based on national origin, it does not include
noncitizens as a protected class.
■To prevent discrimination against immigrants who are authorized to work, the IRCA prohibits
discrimination in employment based on citizenship status, which means an employer cannot
refuse to hire, based on lack of citizenship, a qualified alien authorized to work.
G. Résumé Fraud
❊The untruths on a résumé can relate to the college attended, degrees received, prior employers, prior
job responsibilities, salary history, certifications earned, and virtually any other factor contained in a
biography.
❊The Internet expands the opportunities for résumé fraud because it provides easy access to fake
degrees, authentic-looking diplomas, and even fill-in-the-blank transcript templates.
❊Credential falsification creates dilemmas for employers because it increases the difficulty of finding
the best candidates for openings.
❊If any data is later discovered to be false, this statement lays the foundation for a civil case in fraud
or a criminal prosecution for perjury.
❊Penalties for perjury include jail, fines, and probation.
❊Consequences for civil fraud include reimbursement to the employer of expenses incurred as a
result of the untruthful information.
Employment ■161
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162 ■Chapter 14
H. Occupational Safety and Health Administration
❊OSHA enforces laws passed by Congress and regulations adopted by OSHA that mandate safe
conditions at work sites.
❊Additionally, some states have adopted their own safety standards, which are at least equal to
OSHA’s and may be more stringent.
❊Examples of the thousands of OSHA regulations include proper labeling and storing of hazardous
materials (such materials may be present in cleaning solvents and pesticides used in restaurants or
hotels), mandated safety devices for meat-cutting machinery, procedures to reduce the spread of
such diseases as hepatitis B and the HIV virus through blood-borne pathogens, proper storage and
placement of portable fire extinguishers, and maintenance of specified first-aid devices.
❊The agency hires and trains inspectors who visit workplaces to investigate whether employers are
complying with applicable safety rules.
❊In addition to routine safety audits, inspections occur in response to accidents, complaints by
employees or customers, and referrals from other government agencies.
❊Restaurant and hotel trade associations provide training and awareness materials to assist members
in identifying risks, preventing accidents, and complying with OSHA regulations.
❊Hospitality facilities need to be aware of federal and state workplace safety rules.
I. Unions
❊The resulting contract between workers and management is called a collective bargaining agreement.
❊Union membership customarily enhances the bargaining power of workers because unions are acting
on behalf of not just an individual but rather groups of employees.
❊Management, not surprisingly, usually prefers a nonunionized workplace where its control is unbri-
dled by a union.
❊National Labor Relations Act
■An employer violates the NLRA if it refuses to hire an applicant because of union activity or retal-
iates against a union activist by, for example, demoting, transferring, or terminating that person.
❊National Labor Relations Board
■Enforcement of the National Labor Relations Act (NLRA) is done by the National Labor Rela-
tions Board (NLRB).
■Unfair labor practices include threats, warnings, acts, and orders to refrain from protected union
action; discrimination against employees who participate in union activities; retaliation for filing
a charge of an unfair labor practice with the NLRB; and refusal to negotiate in good faith with
union representatives over conditions of employment.
J. Answers to Case Example Questions
14-2-1. Why is it necessary for a terminated employee seeking to establish discrimination to
show she was replaced by someone not within her protected class?
Since the plaintiff is alleging discrimination based on her race (white), it is necessary that she
prove that she was terminated because of her race (i.e., that race was the motivating factor in
her termination). The courts have required that the plaintiff must prove that in cases of alleged
race discrimination the defendant (employer) replaced the plaintiff with someone who was not
a member of the plaintiff’s race—which is the protected class. The reason for this is that only
discrimination against members of a protected class is illegal. To demonstrate this, the courts
have determined that the employer replaced the terminated plaintiff with someone not within
her protected class (in this case, a nonwhite).
14-4-1. Why was fluency in English important in the job the plaintiff sought? Why was it less
important for her job as a chambermaid?
The plaintiff had applied for a position as a front office cashier, which required a significant
amount of interaction with guests, most of whom spoke only English. As a chambermaid,
much of her work was done outside the presence of guests and did not require that she
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