Employment law for human resource practice south western legal studies in business academic

Employment Law for Human
Resource Practice


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Employment Law for Human
Resource Practice
THIRD EDITION

DAVID J. WALSH
Miami University

Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States


Employment Law for Human Resource
Practice, Third Edition
David J. Walsh
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Jack W. Calhoun
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1 2 3 4 5 6 7 13 12 11 10 09


Brief Contents
Preface xvi
Acknowledgments

PART 1

xxiv

Introduction to Employment Law 1

CHAPTER

1

Overview of Employment Law

3

CHAPTER

2

The Employment Relationship

31

CHAPTER

3

Overview of Employment Discrimination

PART 2

The Hiring Process

59

99

CHAPTER

4

Recruitment, Applications, and Interviews

CHAPTER

5

Background Checks, References, and Verifying Employment
Eligibility 131

CHAPTER

6

Employment Testing 161

CHAPTER

7

Hiring and Promotion Decisions

PART 3

101

193

Managing a Diverse Workforce 225

CHAPTER

8

Affirmative Action

CHAPTER

9

Harassment

CHAPTER

10

Reasonably Accommodating Disability and Religion

CHAPTER

11

Work-Life Conflicts and Other Diversity Issues

PART 4

227

255
293

329

Pay, Benefits, Terms and Conditions of Employment

CHAPTER

12

Wages, Hours, and Pay Equity 367

CHAPTER

13

Benefits

CHAPTER

14

Unions and Collective Bargaining

CHAPTER

15

Occupational Safety and Health

365

401
437
479

v


vi

Brief Contents

PART 5

Managing Performance

513

CHAPTER

16

Performance Appraisals, Training, and Development

CHAPTER

17

Privacy on the Job: Information, Monitoring, and Investigations

PART 6

Terminating Employment

581

CHAPTER

18

Terminating Individual Employees

CHAPTER

19

Downsizing and Post-Termination Issues
Glossary 665
Case Index 687
Subject Index 695

583
629

515
545

Contents
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxiv

PART 1

Introduction to Employment Law

CHAPTER 1

Overview of Employment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Heard at the Staff Meeting

3
3

U.S. Employment Law Is a Fragmented Work in Progress
Sources of Employment Law 4
Constitutions 4
Statutes 4
Executive Orders 4
Regulations, Guidelines, and Administrative Decisions
Common Law 5

5

Substantive Rights Under Employment Laws 5
Nondiscrimination and Equal Employment Opportunity 6
Freedom to Engage in Concerted Activity and Collective Bargaining 6
Terms and Conditions of Employment That Meet Minimum Standards 6

Protection of Fundamental Rights 6
Compensation for Certain Types of Harm 6
Shero v. Grand Savings Bank

7
8

Determining Which Employment Laws Apply
Public or Private Sector Employment 8
Unionized or Nonunion Workplace 9
Employer Size 9
Geographic Location 11
Government Contracts 11
Industry and Occupation 11

Historical Development of U.S. Employment Law

11

Procedures for Enforcing Employment Laws 13
What Does an Employee Decide to Do When She Believes
That Her Rights Were Violated? 13
How Long Does the Employee Have to Bring a Case? 14
Can a Lawsuit Be Brought? By Whom? 14
Is There an Administrative Prerequisite to a Lawsuit? 16
Must the Employee Exhaust Internal Dispute Resolution
Mechanisms Before Proceeding? 17
Enforceability of Mandatory Arbitration Agreements
Davis v. O’Melveny & Meyers

24

Remedies for Violations of Employment Laws
EEOC v. Federal Express

17

19

24

The Role of Managers in Legal Compliance

27
vii


viii

Contents

CHAPTER 2

The Employment Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
The Importance of Determining Whether an Employment Relationship Exists
Who Is an Employee? 33
Independent Contractors

32

34

Baker v. Flint Engineering & Construction
Salamon v. Our Lady of Victory Hospital

34
38

Temporary Workers 41
Students 43
Volunteers 44
Partners 45
Other Issues Concerning Employee Status
Who Is the Employer? 48
Agency 48
Single, Integrated Enterprise
Joint Employers 50
Zheng v. Liberty Apparel Co.

47

49
50

CHAPTER 3

Overview of Employment Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
The Continuing Reality of Employment Discrimination
The Concept of Employment Discrimination
Protected Classes 63

62

64

Types of Discrimination

Disparate Treatment—A Closer Look
Types of Disparate Treatment Cases
Analyzing Pretext Cases 69

67
67

72

Vincent v. Brewer Co.
Laxton v. GAP Inc.

59

78

Adverse Impact—A Closer Look 81
Analyzing Adverse Impact Cases 83
Retaliation—A Closer Look 85
Analyzing Retaliation Cases 85
Moore v. City of Philadelphia

PART 2

86

The Hiring Process

CHAPTER 4

Recruitment, Applications, and Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Recruitment 101
Discrimination in Recruitment
Recruitment Methods 102
Applications and Interviews
Application Process 110
EEOC v. Target Corp.

110

111

Preemployment Inquiries

115

101


Contents

Griffin v. Steeltek

ix

118

Statements by Employers

120

Stewart v. Jackson & Nash

121

False Statements by Employees

123

CHAPTER 5

Background Checks, References, and Verifying Employment Eligibility . . . . . . . . . 131
Background Checks 131
Employer Responsibility for Employee Wrongdoing
Negligent Hiring 132
133

Ponticas v. K.M.S. Investments

Criminal Records

131

139

Credit Reports 141
Fair Credit Reporting Act

141

References 144
Defamation 144
146

Sigal Construction v. Stanbury

Negligent Referral

148
148

Davis v. The Board of County Commissioners of Doña Ana County

Verifying Employment Eligibility 151
The Immigration Reform and Control Act

153

CHAPTER 6

Employment Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Drug Tests

161

Lanier v. City of Woodburn

Drug-Testing Procedures
Use of Drug Test Results

163
166
167

Medical Examinations 168
Medical Examinations and the ADA
Polygraphs and Honesty Tests

169

173

Scored Tests of Ability 174
Examining Test Items 174
Examining Test Results 175
Establishing That Tests Are Job-Related and Consistent with Business Necessity
EEOC v. Dial Corp.

Determining Appropriate Cutoff Levels for Test Scores
Lanning v. SEPTA

176

177
181

182

Accommodating Disabled Persons in Testing

186

CHAPTER 7

Hiring and Promotion Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Criteria for Hiring and Promotion Decisions 193
Facially Discriminatory Policies/Practices—BFOQ Defense
Everson v. Michigan Department of Corrections

“Sex-Plus” Cases 199
Weight and Appearance

200

196

193


x

Contents

Sex-Stereotyping

202

Back v. Hasting on Hudson Union Free School District

Subjective Criteria

203

206
209

Dunlap v. Tennessee Valley Authority

Offering and Accepting Employment

212

Obstacles to Advancement on the Job 214
Promotions 214
Glass Ceilings 217
Seniority and the BFSS Defense 218

PART 3

Managing a Diverse Workforce

CHAPTER 8

Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
When Is Affirmative Action Required?
Government Contractors 228
Settlements and Court Orders 229

228

Distinguishing Legal Affirmative Action from Reverse Discrimination
The Legality of Affirmative Action Under Title VII 231
Johnson v. Transportation Agency, Santa Clara County

231

The Legality of Affirmative Action Under the U.S. Constitution
Petit v. City of Chicago

230

235

236

Dean v. City of Shreveport

239

Ingredients of Affirmative Action Plans 242
Reasonable Self-Analysis 243
Reasonable Basis for Affirmative Action 243
Reasonable Affirmative Actions 244

Effects of Affirmative Action

247

Diversity and Affirmative Action

247

CHAPTER 9

Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Harassment as a Form of Discrimination
“Because of Sex” 255

255

Recognizing Harassment 260
What Behaviors Constitute Harassment? 260
Harassment That Results in Tangible Employment Actions
Hostile Environment Harassment 262
Reeves v. C.H. Robinson Worldwide

264

When Are Harassing Behaviors Unwelcome?

268

Liability for Harassment 269
Harassment by Top Officials, Managers, and Supervisors

Hardage v. CBS

272

Harassment by Coworkers or Third Parties
Engel v. Rapid City School District

260

277

275

270


Contents

Eliminating Harassment 280
Harassment Policies and Complaint Procedures
Responding to Reports of Harassment 282

xi

280

CHAPTER 10

Reasonably Accommodating Disability and Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Reasonable Accommodation of Disability 293

Disability 294
“Qualified Individual with a Disability” 297
Justice v. Crown Cork and Seal Co.

300

Reasonable Accommodation 304
The Process of Reasonably Accommodating Disability
What Makes an Accommodation Reasonable? 307
EEOC v. Convergys Customer Management Group

305

309

When Does an Accommodation Impose Undue Hardship?
Reasonable Accommodation of Religion 312
Religion 312
Failure to Reasonably Accommodate Religion
Cloutier v. Costco

311

313

316

Religious Advocacy and Religious Harassment
Religious Organization Exemption

319

322

CHAPTER 11

Work-Life Conflicts and Other Diversity Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Work-Life Conflicts and Employer Leave Policies
Family and Medical Leave Act 329
Stevenson v. Hyre Electric Co.

329

335

Bachelder v. America West Airlines

339

Pregnancy Discrimination Act 345
Leave to Perform Civic Duties 346
Uniformed Services Employment and Reemployment Rights Act
Petty v. Metropolitan Gov’t of Nashville & Davidson County

346

347

Language Requirements and National Origin Discrimination
English Fluency and Accents 352

English-Only Rules 353

352

Discrimination Based on Sexual Orientation 355
Protection Under Federal Law 355
Protection Under State and Local Laws 358
Transgender and Transsexual Persons 358

PART 4

Pay, Benefits, Terms and Conditions of Employment

CHAPTER 12

Wages, Hours, and Pay Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Fair Labor Standards Act—Wage and Hour Standards
Minimum Wage 367
Overtime Pay 369

367


xii

Contents

Determining Compliance with Wage and Hour Standards
Compensation Received 370
Compensable Time 371

Chao v. Gotham Registry

370

372

Exemptions from FLSA Requirements

377

Martin v. Indiana Michigan Power Company

Other Wage Laws 385
What About Farmworkers?

386

Limitations on Work Hours

387

381

Discrimination in Pay—Equal Pay Act 388
Proving Pay Discrimination Under the Equal Pay Act
Equal Work 389
Factors Other Than Sex 390
Vehar v. Cole National Group

389

391

Comparable Worth 394
Pay Secrecy Policies 395
CHAPTER 13

Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
What Benefits Must Employers Provide?

401

What Does ERISA Require? 401
Inform Employees About Their Benefits 403
Deliver on Promised Benefits 404
Provide Claims and Appeals Procedures 405
Manage Plans Wisely and in Employees’ Interests—Fiduciary Duties
Livick v. Gillette

406

407

Refrain from Interference or Retaliation

409

Pensions 410
Vesting and Participation 410
Types of Pension Plans 411

DiFelice v. U.S. Airways

416

Health Insurance 421
Legal Challenges to Managed Care 421
Maintaining Coverage—COBRA and HIPAA
Retiree Health Benefits 424
Vallone v. CNA Financial

422

424

Discrimination and Benefits
Domestic Partner Benefits

427
429

CHAPTER 14

Unions and Collective Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
The Idea of Collective Bargaining

438

The National Labor Relations Act 439
Employee Rights Under the NLRA 440
Five Star Transportation v. NLRB

Unfair Labor Practices

440

445

Union Organizing and Representation Elections
Union Organizing Campaigns 448

448


Contents

United Food and Commercial Workers Union, Local 204 v. NLRB

Employer Responses to Union Organizing
Representation Election Procedures 457
Bargaining 462
Duty to Bargain in Good Faith

xiii

449

453

462

Pleasantview Nursing Home V. NLRB

463

What Happens When Parties Cannot Reach Agreement?

467

Labor Agreements 470
Enforcing Labor Agreements—Grievance Procedures and Arbitration

470

CHAPTER 15

Occupational Safety and Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
479

The Occupational Safety and Health Act
How Safe Is “Safe Enough”? 480
482

R. Williams Construction Co. v. OSHRC

How Is the OSH Act Enforced? 488
Recording and Reporting Requirements

491

492

Mine Safety and Health Act

493

Preventing Occupational Injuries and Illnesses

Workers’ Compensation 495
Exclusive Remedy 496
Arising Out of and in the Course of Employment

State Ex Rel. Gross v. Industrial Commission of Ohio

Responding to Workplace Injuries

PART 5

498

498

Wait v. Travelers Indemnity Co.

502

507

Managing Performance

CHAPTER 16

Performance Appraisals, Training, and Development . . . . . . . . . . . . . . . . . . . . . . . . . . 515
Performance Appraisals 515
Performance Criteria and Standards 517
Performance Appraisal Process 519
Raytheon Technical Services v. Hyland

Feedback on Performance
Cortez v. Wal-Mart Stores

527
528

Training and Development 530
When Is Training Legally Required?
Selection of Trainees 536
Hoffman v. Caterpillar

522

532

536

CHAPTER 17

Privacy on the Job: Information, Monitoring, and Investigations . . . . . . . . . . . . . . . 545
Overview of Workplace Privacy Protections
Constitutional Protection 545

545


xiv

Contents

Common Law Protection 547
Statutory Protection of Privacy 550
550

Handling Records and Employee Information
Personnel Records 550
Medical Information 551

553

Monitoring and Surveillance of Employees
Video Surveillance 554
Electronic Communications 555

Quon v. Arch Wireless Operating Co. and City of Ontario

Investigation of Employee Conduct
Searches 565

564
567

Warriner v. North American Security Solutions

Interviews and Interrogations

569

569

Dietz v. Finlay Fine Jewelry

Polygraphs 573
Acting on Results of Investigations

PART 6

559

574

Terminating Employment

CHAPTER 18

Terminating Individual Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583
Determining Whether a Termination Has Occurred—Constructive Discharge
Employment at Will with Exceptions

Impermissible Grounds for Termination
Breach of an Implied Contract 587

586

589

Dillon v. Champion Jogbra

Retaliation for an Act Supporting Public Policy
Lloyd v. Drake University

583

586

594

596

Whistleblower Protection Statutes 601
Discriminatory Termination 604
605

Ellis v. United Parcel Service

Just Cause/Due Process 609
Unionized Employees 609
Public Employees 612
Civil Service and Tenure Laws 612
Constitutional Protections 613
D’Angelo v. School Board of Polk County, Fla.

615

Montana Wrongful Discharge from Employment Act
Handling Terminations

619

622

CHAPTER 19

Downsizing and Post-Termination Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629
Downsizing 629
The Decision to Downsize 630
Informing Employees Prior to Downsizing—WARN Act
Roquet v. Arthur Andersen

634

Selecting Employees for Downsizing

637

632


Contents

Wittenburg v. American Express

640

Early Retirement Offers 647
Effects of Bankruptcy on Employee Rights
Post-Termination Issues 649
Unemployment Insurance 650
Restrictive Covenants 652
Syncom Industries v. Wood

A Concluding Thought

Glossary 665
Case Index 687
Subject Index 695

653

659

649

xv


Preface
This is a book about employment law, the set of legal requirements that govern the
workplace. A distinction is often made between “employment law” and “labor law” (the
latter describing laws related to unions and collective bargaining), but I generally use the
term employment law to refer to both. This book has two main objectives. The first is to
explain the major issues and rules of employment law. What things are legal matters?
What does the law say about those matters? The second objective is to explain what employment law means for human resource practice. What is it that employers should be

doing to comply with the law? What is the legal reasoning behind this practical advice?

Special Features of This Text
Unique Employment Life Cycle Approach
This dual purpose of understanding the substance of employment law and its implications
for human resource practice account for the way this book is organized. The first three
chapters provide broad overviews. The remainder of the book traces the steps in the employment process and addresses the particular legal issues associated with them. We start
with issues that lead up to hiring and promotion, including recruitment, interviewing, background checks, references, and employment testing. We then turn to a range of issues that
arise when a person is on the job, including harassment, reasonable accommodation of disability, compensation, benefits, performance appraisal, and occupational safety and health.
The last two chapters of the book deal with issues related to the termination of employment.
This structure is intended to highlight the legal issues that managers regularly confront.
The employee life cycle approach to this text offers students the ability to understand
the employment process, from beginning to end, while considering the legal environment and its implications for business success. Walsh’s personnel law book provides a
solid foundation for students to successfully navigate the always changing and rarely
certain areas of personnel law within an organization.
Professor Sarah Sanders Smith, SPHR, Purdue University
Of all of the texts that I reviewed, this one has the most practical and usable advise for
soon-be-HR practitioners. The life cycle approach is strong and the writing easy to read.
Nancy K. Lahmers, JD, The Ohio State University

Practical Focus
This book is full of advice for carrying out human resource activities in a lawful manner.
These guidelines are general principles for sound human resource practice. They cannot be—
and do not purport to be—specific legal advice for particular situations that you might encounter. Only a trained legal professional thoroughly familiar with the details of your case
can provide the latter.
This text offers a unique human resource perspective of employment law that is typically not afforded attention in other comparable texts.
Dr. Kim LaFevor, Athens State University
xvi

Preface

xvii

Clippings This feature consists of brief synopses of recent cases, events, or studies that
illustrate the issues dealt with in each chapter. The clippings should pique your interest
and begin to show how employment law relates to real things that are happening in the
world around us.
I love the Clippings features—they are well chosen and give the students a great intro
into why what we are covering is relevant to their businesses.
Alexis C. Knapp, Houston Baptist University
The Changing Workplace This feature adds a forward-looking flavor to the book by
highlighting contemporary developments in the workplace, the workforce, and human
resource practices that have particular implications for the law. The business world is
nothing if not dynamic. Changes in the workplace raise new legal questions and point
to the types of legal disputes that we can expect to see more of in the future.
Just the Facts This feature provides facts from some interesting and recent court decisions. Thinking through these cases and arriving at a decision is a great way to test your
grasp of legal concepts. In this feature, you are not told the outcomes of the cases; instead, you are given the information needed to make your own determinations (“just
the facts”). Use the citations provided to look up the decisions to check your conclusions
against the decisions of the courts. Or maybe you can prevail upon your instructor to
“spill the beans.”
Practical Considerations Employers need to follow many rules to meet their legal obligations to employees. But legal compliance is not entirely cut-and-dried. Managers have
many choices about how to comply with the law, and this feature highlights some of
those choices.
Elements of a Claim In any situation that gives rise to a legal dispute, numerous facts
might be considered. The facts that we deem most relevant and the order in which we
consider them go a long way toward determining the outcome of our deliberations.
When judges decide cases, they typically rely upon established frameworks that spell
out a methodology for deciding those cases. Who has the burden of proof? What must
the plaintiff show? What must the defendant show? In what order should certain facts be

considered? This feature lays out these frameworks—the “elements” of particular legal
claims. Grasping this information gives us real insight into how cases are decided. Judges
still exercise considerable discretion and judgment in applying these frameworks, but
they make the process of arriving at decisions in legal disputes far more systematic and
consistent than it would otherwise be.
Practical Implications of the Law Each chapter in this book contains many suggestions for carrying out human resource activities in a lawful manner. This advice appears
in italics to make it stand out from the rest of the text. But the advice should still be
considered in the context of the specific legal problems that it aims to help employers
avoid. It is important to know not only what to do, but also why those things should be
done.
The law is a basic determinant of human resource practice and one that cannot be
ignored. However, the law is best conceived of as providing a “floor,” rather than a “ceiling,”
for human resource practices. It establishes minimum standards of acceptable treatment


xviii

Preface

of employees, but often it is sensible for employers—based on motivational, pragmatic,
or ethical considerations—to go well beyond the bare minimum legal requirements.
Thus, our purpose in understanding what the law requires is not to identify “loopholes”
that can be exploited or to advocate superficial measures that might look good on paper
but fail to realize the underlying purposes (e.g., equal employment opportunity) of the
law. Instead, this book encourages you to think about the “spirit”—and not merely the
“letter”—of the law. It invites you to consider how to achieve these important social purposes by implementing policies and practices that also make sense given the operational
realities of the workplace.
Practical Advice Summary For easy reference, the practical advice sprinkled liberally
throughout chapters is collected at the end of each chapter. This summary can be used as
a convenient “checklist” for legal compliance.

Legal Cases
Each chapter contains three or four substantial excerpts from decisions in court cases.
One of the things that is unusual (and admirable) about legal decision making is that
the decision makers (e.g., judges) set down in writing their rationale for the decisions
they make in the cases that are brought before them. This gives us the opportunity to
read firsthand accounts of legal disputes, to have the decision makers explain the relevant rules of law, and to see how those principles were applied to the facts of particular
cases. I describe the law and other cases for you as well, but there is nothing like reading
cases to get a real feel for the law. Getting comfortable with reading legal cases is a bit
like learning a new language. It will take some doing, but with diligent effort and practice, it will pay off in terms of enhanced ability to access and understand the law.
The words in the case excerpts are the same as those you would find if you looked up
the cases online or in print. However, to maximize readability, I have shortened the case
decisions by focusing on a brief statement of the facts, the legal issue, and (at greatest
length) the explanation of the decision maker’s rationale. Where part of a sentence is
removed, you will see three dots ( . . . ). Where more than part of a sentence is removed,
you will see three stars (* * *). This is to alert you that text has been removed from the
full case decision. Legal decisions are replete with numerous footnotes and citations to
previous cases that addressed similar questions. In most instances, I have removed the
citations and footnotes from the case excerpts. Occasionally, I have included in brackets
[ ] a brief explanation of a legal term.

What Is New in This Edition
This edition of Employment Law for Human Resource Practice retains the essential structure and focus of the previous editions. Linking a thorough understanding of principles of
employment law to advice on how to conduct human resource practice remains the central aim of this book. Consistent with this aim, the book continues to be organized around
stages in the employment process, from the formation of an employment relationship
through the termination of that relationship. However, this edition incorporates substantial revisions and additions that are outlined next. Users of this text should also note that
the resources available to instructors and students, including the Web site accompanying
the text, have been greatly expanded with this edition.

New Features

The Just the Facts and Practical Considerations features are new to this edition. Both
of these features appear several times in each chapter. They aim to engage students by
drawing them into puzzling over legal and practical problems. These features also lend


Preface

xix

themselves to lively classroom discussions. Often, good questions are better learning
tools than eloquently worded text passages.
Another change to this edition involves the Clippings feature. Besides being almost
entirely new compared to the previous edition, the “Clippings” have been integrated
into chapters rather than collected at the beginning of chapters. The thought is that it
is more effective to present the “Clippings” within discussion of the legal concepts to
which they pertain than to refer back to them. So “Clippings” fans need not despair.
The “Clippings” have not gone away; they’ve just been moved.
The end-of-chapter questions have also been substantially revised for this edition. For
most chapters, there are now more questions and they are based on more recent cases.
These questions lend themselves to class discussions, in-class quizzes, and mini-papers.

New Cases
Over half (59 percent) of the excerpted cases are new from the previous edition. My approach to selecting cases is to prefer recent cases that best capture contemporary circumstances and the current state of the law. Classic cases (e.g., Griggs v. Duke Power) are
given the attention they deserve, but through discussion in the text rather than by inclusion as excerpts. If, through a lapse in taste or judgment, I have eliminated one of your
favorite cases from the previous edition, chances are the case still appears somewhere in
this edition, most likely as a new end-of-chapter question.

Significant Revisions
Here are some highlights of the revised contents of this edition.
•

•

•
•

•
•

•

•

Chapter 1: This chapter includes three new excerpted cases. The issue of awarding
punitive damages receives more extensive treatment. Choice of a legal compliance
strategy is discussed. Chapter cases include Davis v. O’Melveny & Meyers (unconscionable arbitration agreements) and EEOC v. Federal Express (punitive damages).
Chapter 2: This chapter includes an updated discussion of distinguishing employees
from independent contractors. Chapter cases include Salamon v. Our Lady of
Victory Hospital (whether doctors are employees of hospitals or independent
contractors).
Chapter 3: Two new cases are excerpted in this chapter. There is more in-depth
discussion of retaliation and the implications of the Supreme Court’s Burlington
Northern decision.
Chapter 4: A discussion of day laborers has been added. Coverage of the employment of foreign nationals under the H-1B and other visa programs is expanded.
Chapter cases include EEOC v. Target Corp. (discriminatory recruiting and
application process).
Chapter 5: Expanded coverage of immigration, undocumented workers, and recent
changes in the enforcement of immigration laws is included.
Chapter 6: Two new cases are excerpted in this chapter. There is discussion of the
Genetic Information Nondiscrimination Act of 2008 and its implications for genetic

testing by employers. Chapter cases include EEOC v. Dial Corp. (adverse impact of a
physical strength test).
Chapter 7: The chapter provides expanded discussion of discrimination against
caregivers, discrimination in the interview process, and discrimination in promotions. Chapter cases include Back v. Hasting on Hudson Union Free School District
(sex-stereotyping) and Dunlap v. Tennessee Valley Authority (discriminatory interview process).
Chapter 8: Constitutional challenges to affirmative action are more closely examined. Discussion of the relationship between diversity programs and affirmative


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Preface

•
•

•

•

•

•

•

•

•

action is expanded. Chapter cases include Dean v. City of Shreveport (constitutional

challenge to a consent decree requiring affirmative action).
Chapter 9: Three new cases are excerpted in this chapter. Coverage of the affirmative defense is expanded. Chapter cases include Hardage v. CBS (affirmative
defense).
Chapter 10: Two new cases are excerpted in this chapter. The ADA Amendments
Act of 2008 is covered in some detail and integrated into a discussion of the ADA’s
requirements. Coverage of the issue of perceived disability is expanded. Chapter
cases include Justice v. Crown Cork and Seal Co. (perceived disability, direct threat
standard) and Cloutier v. Costco (religious accommodation and appearance policies).
Chapter 11: Two new cases are excerpted in this chapter. There is enhanced coverage
of the FMLA, including the DOL’s revised regulations, issued in November 2008.
Coverage of the USERRA is also expanded. Recent developments in legal protections
against sexual orientation discrimination are included. Chapter cases include Stevenson
v. Hyre Electric Co. (adequate notice of the need for FMLA leave) and Petty v. Metropolitan Gov’t of Nashville & Davidson County (reinstatement rights under USERRA).
Chapter 12: Changes to the FLSA regarding the minimum wage are incorporated.
There is new discussion regarding the blurring of work and nonwork time (e.g.,
employees’ use of BlackBerrys and other communication devices to check e-mail
and perform work from home) and its relationship to compensable time under the
FLSA. Chapter cases include Chao v. Gotham Registry (staffing agency’s responsibility for unauthorized overtime work) and Vehar v. Cole National Group (Equal Pay
Act).
Chapter 13: Two new cases are excerpted in this chapter. There is expanded coverage of the fiduciary duties of employers under ERISA, particularly with respect to
the administration of defined contribution pension plans. The provisions of the
Pension Protection Act of 2006 are outlined. Chapter cases include Livick v. Gillette
(fiduciary responsibility when providing information about retirement benefits) and
DiFelice v. U.S. Airways (fiduciary responsibility to 401(k) plan participants).
Chapter 14: Two new cases are excerpted in this chapter. There is discussion of the
future of the National Labor Relations Act. Legal issues surrounding representation
elections receive particular attention. The status of card-check procedures for
choosing union representatives is discussed, along with the proposed Employee Free
Choice Act. Chapter cases include Five Star Transportation v. NLRB (concerted activity) and United Food and Commercial Workers Union, Local 204 v. NLRB (interference with employees’ NLRA rights during organizing campaigns).
Chapter 15: Three new cases are excerpted in this chapter. A discussion of the Mine

Safety and Health Act has been added. Discussion of when injuries and illnesses
“arise out of and in the course of employment” is updated and expanded. Chapter
cases include Wait v. Travelers Indemnity Co. (compensability of injuries suffered by
a telecommuting employee) and State Ex Rel. Gross v. Industrial Commission of Ohio
(effect of an employee’s violations of safety rules on eligibility for workers’ compensation benefits).
Chapter 16: Two new cases are excerpted in this chapter. Discussion of performance
improvement programs is added. Chapter cases include Raytheon Technical Services
v. Hyland (defamatory performance appraisal) and Cortez v. Wal-Mart Stores (performance improvement program and age discrimination).
Chapter 17: Two new cases are excerpted in this chapter. The privacy of employees’
electronic communications receives added attention. Chapter cases include Quon v.
Arch Wireless Operating Co. and City of Ontario (statutory and constitutional claims
based on unauthorized access and disclosure of employee text messages).


Preface

•

•

xxi

Chapter 18: Two new cases are excerpted in this chapter. Discriminatory discharges
and constitutional protections against wrongful termination available to public employees receive additional attention. Chapter cases include Ellis v. United Parcel Service (termination of an employee involved in an interracial relationship for violation
of a no-fraternization policy) and D’Angelo v. School Board of Polk County, Fla.
(termination of a school principal for advocating conversion to charter school
status).
Chapter 19: Two new cases are excerpted in this chapter. Coverage of downsizing and
its legal implications is expanded. Discussion of restrictive covenants is updated and
enhanced. Chapter cases include Roquet v. Arthur Andersen (notification requirements

under the WARN Act), Wittenburg v. American Express (age discrimination in RIFs),
and Syncom Industries v. Wood (enforceability of a noncompetition agreement).

Instructor Resources
Instructor’s Manual
www.cengage.com/blaw/walsh
The Instructor’s Manual for this edition of Employment Law for Human Resource
Practice provides a succinct chapter outline, answers to questions raised in the “Just the
Facts” and “Practical Considerations” features, answers to case questions following excerpted cases, answers to end-of-chapter questions, and suggestions for in-class exercises
and discussions (including role plays, practical exercises, and more).

Test Bank
www.cengage.com/blaw/walsh
The Test Bank questions for this edition not only test student comprehension of key
concepts, but also focus on business application and ethical implications. The questions
have been updated to reflect the new content and cases of the third edition and expanded to include hypothetical questions that ask what the student, as a human resources manager, should do in particular situations. Donna J. Cunningham of Valdosta
State University edited and updated the Test Bank for the third edition.

PowerPoint1 Slides
www.cengage.com/blaw/walsh
New to this edition, PowerPoint1 slides have been created to highlight the key learning objectives in each chapter—including case summaries and hyperlinks to relevant materials. In addition, “Smart Practice” and “What Would You Do?” slides emphasize
applying legal concepts to business situations (answers to these questions are provided
in “Instructor’s Note” slides at the end of the presentation). The PowerPoint1 slides
were prepared by Donna J. Cunningham of Valdosta State University.

Text Companion Web Site
www.cengage.com/blaw/walsh
The companion Web site for this edition of Employment Law for Human Resource
Practice has been greatly enhanced to streamline necessary resources. In addition to providing access to the Instructor’s Manual, Test Bank, PowerPoint1 slides, and Court Case
Updates, the Web site now offers links to the following: important labor and employment law sites, labor and employment law blogs, legal forms and documents, free legal

research sites (comprehensive and circuit-specific), help in the classroom, labor and
employment law directories, departments, agencies, associations, and organizations. In


xxii

Preface

addition, a list of recent labor and employment law cases with links to each full case is
available.

Court Case Updates
www.cengage.com/blaw/cases
South-Western’s Court Case Updates provide monthly summaries of the most important legal cases happening around the country.

Westlaw1 Access
www.westlaw.com
Westlaw1, West Group’s vast online source of value-added legal and business information, contains over 15,000 databases of information spanning a variety of jurisdictions,
practice areas, and disciplines. Qualified instructors may receive ten complimentary hours
of Westlaw1 for their course (certain restrictions apply; contact your South-Western sales
representative for details).

Business Law Digital Video Library
www.cengage.com/blaw/dvl
This dynamic online video library features over sixty video clips that spark class discussion and clarify core legal principles, including fourteen videos that address employment law topics (such as employment at will, and employment discrimination, and
employee privacy). The library is organized into four series:
•
•
•
•

Legal Conflicts in Business includes specific modern business and e-commerce
scenarios.
Ask the Instructor contains straightforward explanations of concepts for student
review.
Drama of the Law features classic business scenarios that spark classroom
participation.
LawFlix contains clips from many popular films, including Bowfinger, The Money
Pit, Midnight Run, and Casino.

Access to the Business Law Digital Video Library is available at no additional charge as
an optional package with each new student text. Contact your South-Western sales representative for details.

Business Law Community Web Site
www.cengage.com/community/blaw
Visit South-Western’s Community Web site for a wealth of resources to help you deliver the most effective course possible, including our “Great Ideas in Teaching Business
Law” section. Our Community Web site offers teaching tips and ideas for making the
subject interesting and appealing to your students. Ideas include class presentations, discussion topics, research projects, and more.

Note to the Instructor
Since I have been touting the contents of this book, it is only fair to acknowledge material
that is largely omitted. Beyond a glancing blow struck in Chapter 1, this book provides
relatively little information about such matters as the legislative process, courtroom procedures, and the historical development of employment laws. These are all very worthwhile topics, but they are not emphasized in this book because its focus is the current
substance of employment law and the implications for human resource practice. The
treatment of labor law in this book does not reach a number of the more specialized


Preface

xxiii

issues in this area, but I do attempt to show how labor law continues to be relevant to
both unionized and nonunion workplaces. Additionally, while cross-national comparisons can enhance our understanding of U.S. law, a comparative perspective is beyond
the scope of this book.

Dedication
In memory of Martin Walsh


Acknowledgments
Thanks to the many faculty and students who have used Employment Law for Human Resource Practice. I hope that this edition will serve your needs even better. If you are not
presently using this book, I hope that you will consider adopting it. Please do not hesitate
to contact me regarding any questions you have about the book (and ancillary materials) or
suggestions for improvement ().
Many thanks also to Krista Kellman, Developmental Editor; Darrell Frye, Content
Production Manager; Ruchika Vij, Senior Project Manager; Marianne Miller, Freelance
Consultant; Jeff Weaver, Production Technology Analyst; Erin Donohoe, Freelance Consultant; and numerous others at South-Western and its business partners. Being an author provides a small glimpse of the “cast of thousands” who are needed to produce a
work of this type.
Finally, I wish to thank and publicly acknowledge the following individuals who provided valuable comments and suggestions that helped shape this third edition:
Frederick R. Brodzinski
The City College of New York

Kim LaFevor
Athens State University

Lisa A. Burke
University of Tennessee at Chattanooga

Nancy K. Lahmers
The Ohio State University

Bruce W. Byars
University of North Dakota

Susan Lubinski
Slippery Rock University

Terry Conry
Ohio University

Jeanne M. MacDonald
Dickinson State University

Diya Das
Bryant University

James F. Morgan
California State University, Chico

Thomas Daymont
Temple University

Diane M. Pfadenhauer
St. Joseph’s College

Jason M. Harris
Augustana College

Sarah Sanders Smith
Purdue University North Central

Linda Sue Ficht
Indiana University, Kokomo

Vicki Fairbanks Taylor
Shippensburg University

Michael A. Katz
Delaware State University

Christine M. Westphal
Suffolk University

Alexis C. Knapp
Houston Baptist University

xxiv


PART

1

Introduction to Employment
Law

Chapter 1
Overview of Employment Law

Chapter 2

The Employment Relationship

Chapter 3
Overview of Employment Discrimination

1