Topic 4
Establishing/managing the employment relationship—
Recruitment, selection (testing), performance appraisal [Ch. 3]
[Read case law analysis, Malos, 2005, or at least skim summary Tables for basics]
Job Analysis, Validation, and Performance Appraisal in Discrimination Litigation
A) Legal Issues in Recruitment and Employment Testing
1) Problems in Establishing the Employment Relationship: Application of Griggs
a) Nepotism, Word-of-Mouth, Walk-ins, Internal Postings
proving/defending discrimination claims
b) Diversity/EEO/Affirmative Action Programs/Preferences/Test Score “Banding”
c) Background Checks, Negligent Hiring, References, Salary and Criminal History
-Duty of due care to conduct reasonably diligent background checks
-Liability for negligent hiring where failure to do so would have disclosed past problematic behavior that recurs and would have been foreseeable with background check -Recall that it is impermissible to use salary history to determine whether to make a job offer or salary level if offer is made [see Topic 1]
-CA "Ban the Box" law [Govt. Code Section 12952], effective Jan. 1, 2018, prohibits inquiries into applicant's criminal history prior to making a conditional job offer; once offer made, employer must conduct individualized assessment on relevance of criminal history to specific job duties [e.g., nature and gravity of offense, time passed since, etc.]
-Senger (9th Cir. 1996—in class) [see also http://www.mlaw.org/wwl/photos.html]
-Randi W. (in class); Employment References: The tightrope between defamation, negligence, and misrepresentation)
d) Reminder re: Compulsory Arbitration, Non-Competition, and Non-Disclosure [“Trade Secrets”] Agreements [“NDA”s]: Hiring Effectiveness Implications
2) Adverse Impact and Employer’s Defense—Validation!
*Griggs v. Duke Power revisited proving/defending discrimination claims
*Albemarle Paper Co. v. Moody [in class]
*Bradley v. Domino’s
3) Test Validation: Uniform Guidelines on Employee Selection Procedures (UGs) EEOC's Uniform Guidelines on Employee Selection Procedures
*Criterion-related Validation (see web graphic Criterion-related Validity)
*Content Validation (see web graphic Content Validity)
*Construct Validation (see web graphic Construct Validity)
4) Specific Types of Tests (text @ 143-160)
*Structured Interviews (da best!! See Condensed version of Dr. Malos' JAP Structured Interview paper (for Testing module))
*Polygraphs (Employee Polygraph Protection Act; general prohibition subject to exemptions)
*Paper & Pencil Personality/Integrity Tests (Soroka video, if time)
*Physical Ability, Medical, HIV/AIDS (note ADA issues;; more later in Chapter 12)
-Genetic testing illegal in California (per Y2K FEHA amendments)
-Nonconsensual health testing illegal
-Drugs/Alcohol testing (constitutional issues re: government employees)
B) Legal Issues in Performance Appraisal
1) Review Table(s) from Malos, '98 re: overall "Best Practices" (text @ 167)
-Performance Appraisal and Related Legal Issues--Malos, 98;
-Documenting Performance Appraisals
2) Negligent Performance Appraisal (Vaughn v. Edel revisited)
-Must be some duty to appraise performance and to do so with due care—e.g., in handbook; see cases digested in Performance Appraisal and Related Legal Issues--Malos, 98
3) Defamation revisited (see generally "Tightrope" link re: Randi W. case above)
-Jensen v. HP (in class)