HR and the Law           

As we will see in later chapters, the purpose of HR is to facilitate employee engagement as a primary focus within the organization.  Their strategic role in the organization serves as a competitive advantage in this regard when executed properly.   However, a more basic function of the human resource department is compliance with the legal environment.    We learned in chapter 1 that labor practices in the United States have progressed substantially since before the founding of the country.  The purpose of this chapter is to provide a more detailed review of the labor laws in the U.S. that impact modern practice.

HR is primarily reactive when it comes to legal compliance.   The courts or legislation create new compliance rules and regulations.  HR’s role is to understand and apply those regulations to their organization.  There are organizations such as the Society of Human Resource Management (SHRM) and other industry associations that keep managers abreast of political movements, so that HR departments can prepare implementations of compliance programs.   However, it is paramount for HR managers to understand the social, economic, and cultural environment so that they might be able to anticipate new regulations, and to create a culture that responds to the needs and demands of society even before the legal factors impact them.   In this chapter, we will review not only the laws that affect modern HR practices, but we will also give a historical context to allow for a broader understanding of where these laws come from.

A few examples for modern practitioners.   Some states have legalized marijuana, while others maintain the use of this drug as a misdemeanor.  At the federal level, marijuana is still considered a controlled substance.    If you are a company operating in Kansas (where marijuana is illegal), and you have an applicant from Colorado (where marijuana is legal), what does an HR manager make of the results of a pre-employment drug screening?  Another example lies within equal employment – as the social tensions concerning race and minority inclusion continue to escalate in all aspects of culture, how will HR departments respond in hiring practices, training, teambuilding, and development within their organization?  In regards to benefits, what response should HR managers provide to conservative employees who feel like their voice is not being heard amid the politically charged workplace environments?   For example, their desire not to have health plans that include collective bargaining for services such as abortion and contraception creates an ethical challenge.  In what ways will genetic information, artificial intelligence, cyber defense, and working from home in a post-Covid pandemic play in future practice and legal compliance?    All of these questions remain unanswered for now, and new questions will arise in the future.  For this reason, an HR manager needs to understand the external environment so that an appropriate strategy and response can be formulated internally.

 

National Labor Relations Act (1935)

Historical Context

Even though the industrial revolution was coming to an end by the beginning of the 1900s, labor practices and workplace conditions had not improved much from the previous century.  Factories provided in many cases abhorrent conditions, and there were not many protections in place for the worker to turn to.   Individually, the worker had little power to negotiate wages, benefits, conditions, or status within the company.   Collectively, the workforce had no mechanism in place to allow for a concerted effort in these same regards.  In response to these conditions, the National Labor Relations Act (NLRA) was passed.

 

The Legislation

The NLRA of 1935 was the first piece of legislation in the US that guaranteed the rights of private sector workers to unionize.   This meant that they could establish trade unions, negotiate for better wages and benefits (known as collective bargaining) and organize company wide or industry wide strikes.    This act created the National Labor Relations Board as the executive body tasked with investigating violations of the act.  This act prohibited employers from interfering with the formation efforts of employees of their organization, coercing employees from joining such unions, engage in discriminatory practice against workers involved in a trade union, as well as established protocols for violations of the act.   The act explicitly protected the rights of workers by stating “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section”   The conditions for unionization, protection against unfair practices, and collective bargaining are still in use today across many industries, especially in the trades such as steel, electricity, plumbing, pilots, dockyard workers, truck driving, education, and many more.

Fair Labors Standards Act (1938)

Historical Context

The Great Depression of the 1930s created a surplus of workers in the U.S. labor force.   Now more than ever, the worker was expendable because labor could be replaced quickly and cheaply.   We reviewed the NLRA as the first attempt to level the negotiating power between employee and employer.   Employers now had to consider the collective entity of their workforce and were prohibited from preventing unionization.  However, a second piece of legislation was needed to establish base levels of workplace fairness.   Unionization still did not address the issues of child labor, minimum wages, and maximum work hours.   The first attempt to establish minimum workplace standards was the Fair Labor Standards Act (FLSA).

 

The Legislation

The NLRA of 1938 created minimum standards for the workplace.  First, a national minimum wage was established to create a wage floor for workers.   The first minimum wage was set at $0.25 per hour.  Second, the act prohibited “oppressive child labor” by stating that minors were not allowed to work in jobs considered hazardous to children.   The act set a baseline of forty hours per week, and any hours worked in excess of that were subject to 1.5x the normal wage for a position.   Since its inception, the FLSA has been modified many times, updating the minimum wage from time to time, and expanding the protections for workers.   The FLSA is still in full force today and provides clarification for many of the minimum standards of the workplace.

 

Civil Rights Act (1964)

Historical Context

Following the Civil War in 1865, state and federal legislation allowed for the institution of laws that were known as the Black Codes, which were pre-cursors to the Jim Crow laws.  These laws legalized segregation and prevented Black Americans from voting, holding certain jobs, getting an education and hindered workplace opportunities.   Anyone trying to violate these laws would face legal penalties such as arrest, fines, jail sentences, and social penalties such as violence, persecution, and murder.  Emmett Till was murdered in 1955 in Money, MS as a result of the blatant racism of the local community.  He was beaten and drowned.   His mother decided to allow for an open casket so that his death could be a statement of what racism looked like in modern America.  Emmet Till’s death was the catalyst for much of what took place in the next decade in the Civil Rights movement.    The Civil Rights movement of the 1960s was characterized by the efforts of Martin Luther King and Rosa Parks.   They gave a voice to the discrimination taking at all levels of society.  Even though Brown v. Topeka Board of Education had desegregated schools in 1954, unequal treatment of blacks and whites was still prevalent in both schools and workplaces.  The Civil Rights Act of 1964 was the solution many were calling for.

The Legislation

The Civil Rights Act of 1964 prohibited by the law workplace discrimination.  Employers were forbidden from discriminating based on race, color, religion, sex, and national origin.  It was the first attempt in American culture of working towards a fair workplace.   Employers were compelled to show equal consideration of all employees when it came to hiring practices, promotions, firing, layoffs, and benefits.   The act established the Equal Employment Opportunity Commission as the investigative agency of the executive branch of government.

 

 

Vietnam Era Veterans’ Readjustment Assistant Act (1974)

Historical Context

The enormous protests of the Vietnam War throughout the 1960s and early 1970s translated into a disdain for American Vietnam veterans upon conclusion of the war.    Soldiers returning home faced resentment, scorn, and blatant hostility.   Protestors who disagreed with the political premise of the war itself now focused their negative energy on the participants of the war.    This was a stark contrast to the welcomed arms that WWII veteran saw upon their return home 30 years earlier.    The discrimination against veterans manifested itself in both the social and professional arenas.   Many veterans kept their service backgrounds a secret throughout the 1970s and 1980s because of the negative response and discrimination many employers showed towards veterans.

 

The Legislation

The Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) of 1974 attempted to prevent workplace discrimination of veterans returning home.  The law covered soldiers who fought in the Vietnam War, and had special protections for disabled veterans.   The law has since been expanded to include veterans of the Gulf War and beyond.   Charges of workplace discrimination under this act are brought to the Office of Federal Contract Compliance Programs.

 

Pregnancy Discrimination Act (1978)

Historical Context

The cultural revolution of the 1960s led to an increase in the number of women in the U.S. workforce.   This increase in women led to discrimination in the workplace when they would become pregnant.  There were no federal protections in place to address workplace discrimination of pregnant women.   Many would lose their jobs when they became pregnant, were denied employment if they were or expressed plans to have a family.    In fact, General Electric v. Gilbert held that pregnancy discrimination was not covered by the Civil Rights Act of 1964.

 

The Legislation

In response to the growing number of women in the workplace, Congress passed the Pregnancy Discrimination Act (PDA) of 1978.  Provisions of this act prohibited workplace discrimination of women when they became pregnant.   Specifically, the act covers the hiring, firing, compensation, job tasks, job promotion, and especially benefits such as leave and health coverage.  Pregnancy was to be treated as a temporary disability as it states:   “If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay. An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).”

 

Americans with Disabilities Act (1990)

Historical Context

While attention was being given to discrimination in the workplace as highlighted by both the Civil Rights Act and the Pregnancy Discrimination Act, disabilities in the workplace were not a covered protection.  This was especially relevant to disabled veterans returning from Vietnam as they entered the workforce with lasting physical disabilities such as missing limbs and psychological disabilities such as PTSD.

The Legislation

The Civil Rights Act prohibited discrimination in the workplace against a wide scope of classifications.  However, individuals with disabilities were not a part of the protected group.  The Americans with Disabilities Act of 1990 explicitly provided these protections by compelling employers to make reasonable accommodations to employees to carry out their jobs with both short term and life long disabilities.  The act also created a requirement for disability access to public accommodations.  Disabilities under this act included both physical and mental medical conditions.  The EEOC is charged with investigating allegations of mistreatment or discrimination based on ADA.   The EEOC provides guidelines on what is considered a disability and includes “deafness, blindness, an intellectual disability (formerly termed mental retardation), partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, attention deficit hyperactivity disorder, Human Immunodeficiency Virus (HIV) infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.”  It is important to note that conditions such as voyeurism, pedophilia, kleptomania, pyromania, and other socially unacceptable conditions are not covered by the act.

 

Family Medical Leave Act (1993)

Historical Context

As Bill Clinton and first lady Hillary Clinton came into office in 1992, their primary goal was to establish a universal healthcare system in the U.S.   Their focus on affordable and accessible healthcare did not result in sweeping changes to the health system, even after eight years in office.  However, one outcome of this era was that workplace protections for those experiencing medical situations came to light.

The Legislation

Under the Family and Medical Leave Act of 1993, employees are entitled to take off up to 12 weeks of unpaid leave to care for a new child (natural birth, fostered, or adopted), care for a family member who is seriously ill, or to recover from a serious illness.   To qualify for FMLA, an employee has to work at least 1,250 hours over the previous 12 month term.    Under this law, employees taking time off have the right to their job or a similar role upon return to the company.   The law gives companies the right to require individuals taking FMLA to use up the balance of their sick leave, vacation leave during any or all of the 12 week leave period.

 

Landmark Court Cases

The Civil Rights Act of 1964 and subsequent legislation provided a framework for workplace equality.  In theory, organizations were supposed to treat all stakeholders fairly.   The reality is that this landmark piece of legislation was far from clear in practice.  Over the next three decades, the Supreme Court worked through several cases that defined exactly what workplace discrimination was and what it meant for both employers and employees.   The legal precedents these cases set provided clarification on workplace dynamics such as sexual harassment, disparate impact, and disparate treatment.     Sexual harassment is the unwelcomed or inappropriate sexual comments or physical advances in the workplace.   Sexual harassment also includes requesting or coercing sexual favors from a subordinate or co-worker as a means to offer some workplace benefit (promotion, compensation, status, etc).   Disparate impact is the result of unintended discrimination against a group of individuals.  This happens when an organization practice results in different treatments for groups.   Requiring employees to be able to lift heavy objects when its not necessary to the execution of the job would unfairly favor men over women, for example.   Disparate treatment is explicit practices that discriminate against groups.   These practices are more overt and make up the behaviors which we typically think of as workplace discrimination such as personal statements by hiring managers reflecting prejudice, or giving one group of people a pre-employment test but not the other.  The following court cases provide clarity on what warrants workplace discrimination practice.

Griggs v. Duke Power Company (1970)

In this case, Willie Griggs filed suit against his employer.  His argument was that the employer required an aptitude test be administered for employees wishing to transfer to the higher paying roles within the organization.  Additionally, the transfer to these jobs required a high school diploma.  These requirements resulted in a larger number of white employees securing higher paying jobs.   The court found that the practice of requiring aptitude tests and high school diplomas resulted in disparate treatment of the two groups.  This case set the precedent that any workplace testing required a business purpose.

Albermarle v. Moody (1975)

Albermarle Paper Company had a seniority system and pre-employment tests that resulted in segregation of workers.  In a similar suit to the Griggs case, the Albermarle v. Moody ruling found that testing had to be work-based – meaning that it had to test for relevant workplace characteristics or skillsets.  The precedent in this case was that in hiring practices, pre-employment screenings had to meet these standards. Additionally, the courts awarded backpay for the workers who were denied promotions.

Ward Cove v. Atonio (1989)

In an Alaskan salmon cannery, workers alleged racial discrimination in hiring practices, based on the number of whites in management positions as compared to the number of minorities.   The numbers showed that most of the manual labor jobs were given to minority workers, and the non manual labor jobs were predominantly white.  The plaintiffs came to the court with the number disparities as proof of disparate impact.   However, the court ruled that numbers alone do not prove discrimination, but rather there had to be evidence of hiring practices that led to the disparity.  In this case the applicants to the cannery jobs were predominantly minority, but the skilled management positions had few minority applicants.

Oncale v. Sundowner Offshore Services (1997)

Joseph Oncale was employed in an off-shore oil rig in the Gulf of Mexico.  During his employment he was subjected to harassment, physical assault, humiliation, and sexualized acts that were performed towards him.  He was even threatened with rape.  He eventually left the company and file a suit, claiming the work environment violated the Civil Rights Act.  This case was unique in that Oncale’s claims were based on same-sex harassment, given the all-male crew of the rig.   The courts agreed with Oncale and ruled in his favor, setting the precedent that workplace discrimination could entail same-sex harassment.

 

Burlington Industries v. Ellerth (1998)

During the time that Kimberly Ellerth worked for Burlington Industries, she was sexually harassed by her supervisor, Todd Slowik.  He made sexual advances to Kimberly and she refused.   She did not alert the organization to Todd’s behaviors until after she left the organization and filed suit.  The court ruled that even though Kimberly’s career was not negatively affected by her refusal, the organization is still responsible for the sexual harassment of their workers, even if hey had no knowledge of the harassment.  The precedent states that employers are vicariously responsible for employee’s actions of sexual harassment.

 

Faragher v. City of Boca Raton (1998)

Beth Faragher worked as a lifeguard at a city pool in Boca Raton Florida.  During her employment her supervisors made unwanted advances, touched female lifeguards inappropriately, and made derogatory comments about women in general, referencing female body parts and oral sex.  The supervisors stated they would never promote women, and one even told Faragher “date me or clean the toilets for a year.”  The case was brought before the court as a violation of the Civil Rights Act with the claim that the supervisors created a “hostile work environment.”  The courts ruled that sexual harassment could be the result of the work environment being hostile and held the organization responsible.

 

Ledbetter v. Goodyear Tire & Rubber Co.

Lilly Ledbetter was employed by Goodyear Tire.  She brought a case before the court alleging unequal pay between men and women within the organization.   Despite the evidence that suggested disparate compensation between the genders, the court ruled that the suit was invalid.   They claimed that the statutory regulations required her to file suit within 180 days of when the first act of discriminatory pay happened (meaning the first paycheck).  Her claim was beyond the 180 days.   This ruling was not a rejection of the unequal pay claims, but rather a reaffirming of statutory law.  As a result, Congress passed the Lilly Ledbetter Fair Pay Act which moved the 180 day clock from the beginning to the most recent paycheck.

 

 

1. The Civil Rights Act is considered the first piece of legislation to establish workplace fairness.  Which piece of legislation thereafter do you think created the most benefit for the modern worker?
2. Make your case for which court case had the biggest impact on modern workplace fairness.