Employment Law: Going Beyond Compliance to Engagement and Empowerment

398 Pages·2009·11.153 MB·English

by  Rosemarie Twomey

EMPLOYMENT
EMPLOYMENT LAW: Going Beyond Compliance to Engagement and
First
Empowerment, by Rosemarie Feuerbach Twomey, focuses on the laws that have the greatest Edition
impact on the relationships between employers and employees—in particular, the common law governing
the employment relationship which has dramatically changed the application of the employment at
will doctrine, and the many statutory requirements of fair employment practices that promote equal GE LAW
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“In my opinion, the selected cases are excellent. The cases appear to me to be much more relevant to n
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the concepts covered than the text I am currently using. I believe this to be an excellent approach to this L
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subject. It is very important for non-lawyers to understand the law but not to the detail that an attorney m M
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take place. I especially like the Managerial Perspective section that is provided in the text.” James H. eW A
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“Management Perspective Sections – LOVE THIS – almost the single most important thing to the book 9
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Going Beyond Compliance to Engagement and Empowerment Y
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ISBN 978-0-07-302697-8 Y
MHID 0-07-302697-2 E
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Rosemarie Feuerbach Twomey
9 780073 026978
www.mhhe.com
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Employment Law
G oing Beyond Compliance to Engagement and Empowerment
Rosemarie Feuerbach Twomey
Fairleigh Dickinson University
Boston Burr Ridge, IL Dubuque, IA New York San Francisco St. Louis
Bangkok Bogotá Caracas Kuala Lumpur Lisbon London Madrid Mexico City
Milan Montreal New Delhi Santiago Seoul Singapore Sydney Taipei Toronto
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EMPLOYMENT LAW: GOING BEYOND COMPLIANCE TO ENGAGEMENT
AND EMPOWERMENT
Published by McGraw-Hill/Irwin, a business unit of The McGraw-Hill Companies, Inc., 1221
Avenue of the Americas, New York, NY, 10020. Copyright © 2010 by The McGraw-Hill
Companies, Inc. All rights reserved. No part of this publication may be reproduced or
distributed in any form or by any means, or stored in a database or retrieval system, without
the prior written consent of The McGraw-Hill Companies, Inc., including, but not limited to,
in any network or other electronic storage or transmission, or broadcast for distance learning.
Some ancillaries, including electronic and print components, may not be available to customers
outside the United States.
This book is printed on acid-free paper.
1 2 3 4 5 6 7 8 9 0 DOC/DOC 0 9
ISBN 978-0-07-302697-8
MHID 0-07-302697-2
Vice president and editor-in-chief: Brent Gordon
Publisher: Paul Ducham
Sponsoring editor: Dana L. Woo
Developmental editor: Megan Richter
Executive marketing manager: Rhonda Seelinger
Project manager: Kathryn D. Mikulic
Lead production supervisor: Michael R. McCormick
Design coordinator: Joanne Mennemeier
Media project manager: Suresh Babu , Hurix Systems Pvt. Ltd.
Cover design: Mike Twomey, GraphicStorm.com
Typeface: 10/12 Times New Roman
Compositor: Aptara®, Inc.
Printer: R. R. Donnelley
Library of Congress Cataloging-in-Publication Data
Twomey, Rosemarie Feuerbach.
Employment law : going beyond compliance to engagement and empowerment / Rosemarie
Feuerbach Twomey.
p. cm.
Includes index.
ISBN-13: 978-0-07-302697-8 (alk. paper)
ISBN-10: 0-07-302697-2 (alk. paper)
1. Labor laws and legislation—United States. 2. Industrial relations—United States. I. Title.
KF3319.T96 2010
344.7301—dc22
2008044833
www.mhhe.com
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I dedicate this book to Dan.
Without his unwavering love, support, and
encouragement, this book would not have
been written.
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About the Author
Rosemarie Twomey is a professor of legal studies in business at the Silberman
College of Business, Fairleigh Dickinson University (FDU), in Madison,
New Jersey. She received her JD from West Virginia University College of
Law and practiced law in Morgantown, West Virginia, for 10 years before
pursuing a full-time academic career.
She was a charter member of the Center for Human Resource Management
Studies (CHRMS) of FDU. The objectives of CHRMS include (1) being an in-
novator and leader in partnering with business and (2) being a leader in inte-
grating research and practice. More recently Professor Twomey helped establish
the Institute for Sustainable Enterprise (ISE) at FDU as the superordinate or-
ganization of CHRMS. She was involved in founding a two-day professional
development workshop, the Action Research Practitioner Series, at the annual
Academy of Management Meeting that ran from 1995 through 2005.
Her research interests include employment law and global business, and
her articles have been published in a variety of academic journals including
the I nternational Journal of Organizational Analysis, the Employee Rights
and Employment Policy Journal, the Journal of Global Competitiveness, and
the N orth East Journal of Legal Studies. Her articles have included “The
Family and Medical Leave Act of 1992: A Longitudinal Study of Male and
Female Perceptions,” “Global Responses to the Employment Needs of the
Disabled,” and “Examining the Prima Facie Case in Mental Disabilities
Discrimination Cases.”
At FDU she was responsible for organizing and managing a campus-
wide, 17-event diversity theme semester. She initiated and managed a series
of HR law roundtables, bringing together HR practitioners and lawyers
from both the plaintiff–employee bar and the defendant–employer bar to
discuss employment-related issues. She served on the university grievance
committee, the college and departmental personnel review committees, and
the university academic senate. For several years she was chair of the cam-
pus diversity council.
P rofessor Twomey teaches in the executive MBA and regular MBA pro-
grams at FDU. Among the courses she teaches are Legal Aspects of Work-
force Management; Social, Political, and Legal Environment of Business;
Society, the Legal System, and Ethics; and Field Study of Business, Culture,
and Global Sustainability.
S he is married to Daniel F. Twomey, professor of management, also at
FDU. Together they initiated an innovative study-abroad business course for
undergraduates that involves a two-week trip to Costa Rica, and they have
taught this course for several years. They have four children with successful
careers in education, journalism, law, and business in Connecticut, New York,
and New Jersey—Mike, Teresa, Matt, and Luke.
iv
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Preface
Writing this textbook was the natural result of the author’s teaching a
course titled Legal Aspects of Workforce Management and her association
and active membership in the Center for Human Resource Management
Studies at Fairleigh Dickinson University over the past 18 years. As a result,
the textbook incorporates management ideas and theories into each chapter,
predominantly through the “Management Perspective” sections.
THE CHESS ANALOGY
Effective management of people in an organizational setting involves knowl-
edge of the “rules of the game” and an appreciation of strategy. The best chess
players value all of the pieces for the unique roles they play in any winning
strategy. So, too, do the best human resource managers understand the laws
that apply to the employer-employee relationship and, within that context, en-
able all employees to realize their full potential as they contribute to the goals
of the organization.
Central Ideas
T he book focuses on the laws that have the greatest impact on the behavioral
relationships between employers and employees—in particular the common
law governing the employment relationship, which has dramatically changed
the application of the employment at will doctrine, and the many statutory
requirements of fair employment practices that promote equal opportunity
for all employees.
Organization and Key Objectives
T he introductory chapters describe the framework and origin of employment
laws, followed by the several ways that legal disputes are resolved. A separate
chapter is devoted to mediation—a method that has a long history in other types
of disputes, such as domestic relationships, and has only in recent years been
embraced by the EEOC and applied more frequently in employment disputes.
F air employment practices encompass the demands of federal and state
statutes that carve out “protected classes” of people against whom employers
may not discriminate. These laws are described in the remaining chapters and
are presented chronologically, reflecting their development and evolution un-
der federal law.
W ithin each chapter, and for each statute, Congress’s reasons for adopting
the law are given, and the key principles and requirements of the law are de-
scribed and analyzed. Excerpts of cases are presented to further explain the
principles and to illustrate how the courts apply these principles in actual situ-
ations. At the conclusion of each case, questions for discussion are provided.
A lthough the book is designed for an American audience with a focus on
U.S. law, each chapter has a “Global Perspective” section that provides a
v
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vi Preface
snapshot of what is happening in other countries as they address societal con-
cerns such as discrimination and other employment issues. Readers’ apprecia-
tion of the laws governing employment can be enhanced by exposure to the
nuanced treatment of workers in different political and cultural climates.
E ach chapter concludes with a summary and a set of questions, some of
which have extensive factual content. These questions provide a platform
for class discussion about the numerous circumstances that give rise to legal
disputes in the employment relationship. Instructors are encouraged to have
students consider and use the “Management Perspective” sections to ex-
plore and comment on the behavior of the managers involved in the facts
of each case. By consistently referring to such ideas and suggestions, stu-
dents can strengthen their own competencies as they strive to become more
effective managers.
Premise
T his book is premised on three beliefs of the author. (1) Managers can gain
a meaningful understanding of the laws that apply to the employer–
e mployee relationship and the implications of those laws for how business is
conducted. (2) To a great extent, compliance with employment laws is best
accomplished by following effective management practices that include fair
treatment of workers. (3) Understanding, appreciating, and following the
spirit of employment laws—and not being unreasonably constrained or
paralyzed by the letter of those laws—will contribute significantly to the
strategic goals of any organization.
T he law is sometimes seen as an impediment to efficient management—
something not directly related to organizational goals. However, the objec-
tives of the laws, particularly the laws governing the employment relationship,
go hand in hand with the purposes of almost any organization. Managing
people at work in ways that promote loyalty, motivation, creativity, and reten-
tion is not antithetical to the laws, but rather is synergistic with the spirit of
those laws.
PEDAGOGY
Excerpted Cases
E xcerpts of cases are presented to explain each chapter’s principles and to il-
lustrate how courts apply these principles in actual situations. Questions for
discussion are provided to test readers’ understanding of the principles and to
encourage inquiry about how the facts led to the filing of a legal action
against the employer and what behavior on the part of managers and supervi-
sors might have averted the problem.
Management Perspective Boxes
Each “Management Perspective” box incorporates management ideas and
theories to enrich the topic coverage within the chapter.
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Preface vii
Global Perspective Boxes
“Global Perspective” boxes raise awareness and appreciation of the socio-
logical and historical context of employment law, as well as promoting better
understanding of different cultures in a shrinking commercial world.
Key Terms
T erminology critical to readers’ learning is printed in bold type within the
text and is defined in the margin at each term’s first occurrence.
End-of-Chapter Questions
S everal questions at the end of each chapter are available for classroom and
individual use to strengthen the competencies needed by effective managers.
SUPPLEMENTS
Online Learning Center
• Can be accessed at www.mhhe.com/twomey1e .
• Includes an instructor’s manual with answers to the end-of-chapter questions.
• Includes PowerPoint sets of instructional slides for each chapter.
• Includes test bank fi les for instructor use.
• Gives students access to chapter quizzes, created by John Tiede of Missouri
Southern State University, to test progressive knowledge.
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Acknowledgments
The author greatly appreciates the signifi cant effort made by the reviewers of
the drafts of this textbook. Their insight, experience, and suggestions were
critical to the completion of the work:
Susan Boyd James Morgan
University of Tulsa California State University–Chico
Debra Burke Dr. John Poirier
Western Carolina University Bryant University
Teri Elkins Longacre Anne W. Schacherl
University of Houston Madison Area Technical College
Michelle Grunsted James Schindler
University of Oklahoma–Normal Columbia Southern University
Dan Krcma James Sisk
Northcentral Technical College Gaston College
Laurie MacDonald John Tiede
Warren National University Missouri Southern State University
Sal B. Marchionna
Triton College
The author also wants to thank Robert Richlan, J.D., the FDU attorney–
librarian, who was always there when she needed him. Also, the author thanks
the students who, over the past few years, have given freely of their time to
help with various phases of this book.
M ost of Chapter 4 was written by Teresa Marie Twomey, who, through
her experience as a lawyer and expertise as a mediator, provided invaluable
information and insights. Her review of other aspects of the book is equally
appreciated.
Special thanks go to Sponsoring Editor Dana Woo (past, Kelly Lowery)
and Development Editor Megan Richter (past, Kirsten Guidero), who have
been diligent in providing me with guidance and information, and patient
with me throughout the process. It has been a delight to work with them.
T hanks also to Andy Winston, who was my fi rst contact at McGraw-Hill and
who encouraged me in the earliest stages of the formation of this textbook.
Special thanks to Mike Twomey (GraphicStorm.com) for his generous and
timely contribution in designing the cover of the book and to Drew Harris for
his enthusiastic support and for coming up with the perfect title.
viii
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Contents in Brief
Preface v 9 The Civil Rights Act of 1991,
the Glass Ceiling Act, and the
Acknowledgments viii
Pregnancy Discrimination Act 205
PART ONE 10 Sex Discrimination, the Equal
Pay Act, and the Civil Rights
Introduction 1
Act 225
1 Overview 2
PART FIVE
PART TWO
Reaching for Equal Opportunity Based
Basic Legal Concepts and Forums 29
on Religion, National Origin, Age,
2 Litigation 30 and Disability 255
3 Alternative Dispute Resolution: 11 Religious Discrimination 256
Arbitration 51 12 National Origin Discrimination and
4 Alternative Dispute Resolution: Immigration Issues 282
Mediation 68 13 Age Discrimination 306
14 Disability Discrimination 334
PART THREE
Employment Law and the
PART SIX
Common Law 89
Employment Benefits and Family
5 Employment at Will 90
Leave Law 353
6 Privacy Rights, Restrictive 15 The Family and Medical Leave
Covenants, and Intellectual
Act, Workers’ Compensation, and
Property 136
the ADA 354
PART FOUR
Index 369
Reaching for Equal Opportunity Based
on Sex and Race 161
7 Civil Rights Act of 1964
(Title VII) 162
8 Race and Color Discrimination 182
ix