D02 Legal Aspects of Selection and Promotion S. Camden
The goals of Employment Laws:
1. Fundamental Fairness
2. Non-discriminatory practices in execution of the process
3. Equal Opportunity
4. Selecting the most suitable candidate within the confines of the law.
This insures that the agency is using a process which is fairly predictive of actual job performance
Validating the Hiring Process
When does the legal burden begin for the agency?
When the job opens-you owe a fair process
Why do we have a long hiring process?
To find the best candidate
Is it discriminatory to have Veteran's Points?
No. it does not rise to the level of discrimination, but it does not eliminate the need for base qualifications
When FLSA (Fair Labor Standards Act) began in 1938, who did it apply to?
Only the Private Sector
If you have "Exempt" status under FLSA, can you get overtime pay?
Nonexempt postionsreceive full protections under FSLA, incuding overtime
Who are not protected by FLSA?
-Elected Officials and their staff
-Policy making appointees
-Volunteers and Prisoners
Under Special Rules for Law Enforcement, it requires officers receive overtime only after ______ hours worked in a ______ day work cycle
171 hours / 28 day work cycle
What is the permitted work cycle an employer can establish under FSLA?
at least 7 consecutive days and no more than 28 consecutive days long
Three Exempt Overtime Positions:
1. Administrative Positions
2. Professional Positions
3. Executive Positions
An employer can require you to use your ___________ time, even if you have put in for vacation time, even if that results in a forfeiture of your vacation time.
(Unless you have a contract that states otherwise...)
An agency must be reasonable and permit compensation time off if the use of the time does not _____ _______ the operations of the agency (More than mere inconvenience) unless you have a contract that says differently
"No state shall make or enforce any law that shall abridge the privileges or immunities of citiczens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of the law; nor deny any person within its jurisdiction the equal protection of the laws."
The Equal Protection Clause of the 14th Amendment
Claims of violations to the Equal Protection Clause of the 14th Amendment are only available to _____________.
Public Sector Employees
Claims of violations of the Equal Protection Clause of the 14th Amendment require proof of ______________ discrimination
A Strict Scrutiny Test, which is the highest test of the court. A practice will be presumed unconstitutional and sustained only if all tests aremet. This test used for Race, Alien Status, and National Origin
Suspect Classification Test
The intermediate review by the courts and will be sustained if the employer can justify the classifications are substantially related to a legitimate and important state interest andused for Gender Classification
Quasi-Suspect Classification Test
The lowest level of court review. It is a test of rational basis and up to the plaintiff to establish the policy is arbitrary. It is used for age and sexual orientation.
A Not Suspect-Quasi-Suspect Test
Title VII of the Civil Rights Act of 1964 prohibits __________ or __________ based on race, color, religion, sex, or national origin.
Discrimination or Harassment
Title VII prohibits ______ for filing a charge, participating in an investigation, or opposing discriminatory employer practices
Two types of Discrimination Case under Title VII:
1. Disparate Treatment
2. Disparate Impact
Disparate Treatment requires a showing of ________________.
Employer can defend their actions if based on a "Bona Fide Occupational Qualification"
Disparate Impact is __________ discrimination.
_______ can never be a Bona Fide Occupational Qualification
Regarding sexual harrassment, the victim does not have to be the individual who is harrassed, statute only requires that the victim be ____________ by the conduct
Does sexual harrasssment include harrassment by a member of the same sex?
When using an objective standard of a hostile work environment, you must consider the _____________ . Would a reasonable person in the victim's shoes conclude that there was a hostile work environment?
Totality of Circumstances
Religious discrimination requires _____________ of the religious practices of applicants and employees unless it creates an undue hardship.
The federal agency created under Title VII to enforce the federal discrimination statutes
The Equal Employment Opportunity Commission (EEOC)
The Equal Employment Opportunity Commission does:
1. initiates and receives complaints
2. conduct investigations
3. look for "reasonable cause" that discrimination has occurred
4. seek voluntary resolution
5. issue a "right to sue" letter for the individual to sue on thier own behalf or sue on behalf of an aggrieved party
Affirmative Action Plans are intended to increase the number of minorities in work groups through a process of preference based on race in hiring promotion or firing. Why have courts found these programs troubling?
Race is a suspect class and so strict scrutiny (the highest test) applies. Equal Protection test under race has to be intentional
How are courts steering law enforcement to insure the hiring of minority candidates?
-More aggressive job information programs
-targeted recruitment efforts
Under what Act is an employer required to treat pregnancy like any other medical condition?
The Pregnancy Discrimination Act
Can a pregnant officer be required to leave patrol duties through a Department Policy at a certain time?
A pregnant officer needs to request to be taken off the road, but also has to have a doctor's release to work the road
Discussing the Equal Pay Act of 1963, federal statute requires that men and women be paid equally for performing the same work.
Equal work means two jobs are substantially equal, not exactly equal.
Employers defense for differences in pay:
1. gaps in wages due to seniority, not discrimination
2. earnings measured by quantity or quality or production
3. merit system in place
4. differential baed onany other factor other than gender
Age Discrimination in Employment Act protects employees who are ages _______ and up.
40 years old
In law enforcement, age can only be specfioed in limited circumstances where age is established as a BFOQ regarding ________ & ________
Hiring and Retirement
An individual with a disability is defined by the Americans with Disabilities Act (ADA) as a person who:
1.has a mental or physical impairment that substantially limits one or more major life activity
2. has a history or record of such an impairment
3. is perceived by others as having such an impairment
_______________ is permanent or long-term, not just a medical diagnosis or an impairment, but actual evidence of the impact on the plaintiff.
Accommodations must be __________ and not ______________.
Reasonable & Not Unduly Burdensome
An agency is not required to make accommodations if it imposes an _____________ on the agency.
_______________ is strong, but not conclusive, evidence of the essential job functions.
A written job description
Is drug testing allowed before a conditional employment agreement?
Yes. It is not considered a medical exam under ADA
Requires a covered employer to grant up to 12 weeks of unpaid leave for a serious health condition of an employee or family member, inlcuding the birth or adoption of a child, or the placement into foster care for an eligible employee.
Family and Medical Leave Act (FMLA)
An eligible employee under FMLA is defined as an employee who has worked at least ________ hours for the agency during the preceeding 12 months. Must have worked all 12 months.
IF there is other paid time available, such as sick, vacation, or personal, the employee can elect or the employer can require that time to be counted as _____________