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Example research essay topic: Collective Bargaining Agreement Human Resource Management - 1,826 words

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Human Resource Management Legal Issues in Human Resource Introduction Undoubtedly, contemporary Human Resource Management is closely interrelated with legal issues, which can arise on every area concerned to this spacious field. Consequently, it is extremely important to be aware of key problems in different areas of Human Resource and possible ways of resolving them This paper examines and discusses some of the major legal issues concerning HRM, such as temporary staff, firing, sexual harassment and privacy. Temporary Staff Using temporary staff, especially that provided through temporary staffing agencies, allows companies to save on recruiting, training, and payroll costs, particularly when it comes to staffing high-turnover and seasonal job categories. Companies typically employ two temporary-staffing models. The first involves directly hiring workers onto the company's payroll and classifying them separately from regular employees. These workers are often referred to by such terms as temporary, casual, occasional, or seasonal employees.

This approach helps employers create and maintain an available pool of workers to fill temporary and seasonal positions quickly, but does little to address the high cost of recruiting and training temporary workers. The second method involves "leasing" employees for a fee from an outside temporary-staffing agency that, in turn, handles all recruitment, training, payroll, and benefits for the temporary workers it furnishes to its client companies. These "leased" employees are typically not on the employer's payroll and are not pro-vided with fringe benefits such as group health insurance. Under this "leased" employee model, the costs of recruiting, training, and benefits and payroll administration are shifted to the outside agency.

Both approaches have potential legal pitfalls if they " re not handled properly. Companies often overlook the risks associated with five critical issues, such as sexual harassment and discrimination; wage and hour laws; the Family and Medical Leave Act; labor organizing, and significant employee morale and equity issues that can sometimes give rise to it; employee benefits. Many workplace legal issues in temporary staffing can be traced to widely held misconceptions about who is and is not an "employee" of a given company. To the unsuspecting manager or supervisor, the temporary workers are solely employees of the agency that supplied them and have no formal ties to the employer that contracts for their services. This type of thinking, though, is sure to result in legal difficulties. For purposes of most employment laws, with certain limited exceptions, employees of temporary-staffing firms working in an employer's workplace will be considered to be employees both of the agency and of the employer.

This is the so-called "dual employment" (Bohner, Salasko, 2002) However, the law looks beyond mere labels and focuses instead on the degree of control exercised over an individual's day-today activities. And keep in mind that an employee can have more than one employer. For instance, an employee of a temporary agency working on assignment may very well be seen as an employee of both the temporary agency, which hires her and pays her wages and benefits, and the client to which she is assigned, which directs her schedule and day-to-day work activities. The greater the control exercised over an employee's pay, benefits, work hours, and day-to-day work activities, the greater the likelihood that an employment relationship (or joint employment relationship) will be found to exist. The common misperceptions about the legal status of temporary staff sometimes lead to poor decision-making when it comes to workplace policies and employment laws and regulations.

For instance, supervisors sometimes assume that it is appropriate to dismiss a temporary employee simply by calling up the agency and asking for someone new to be sent over, without vetting the decision through HR or giving thought to possible liability issues regarding discrimination or retaliation. (Bohner, Salasko, 2002) It's HR's job to increase awareness among supervisors and managers that temporary workers are entitled to the same projections against discrimination, harassment, and retaliation, as are so-called "regular" staff. HR should encourage supervisors and managers to act just as prudently and carefully when dealing with temporary staff as they would with regular employees. This effort might include a review of your organization's employee manual to ensure that, where appropriate, policies are reworded as necessary to make it clear that these laws apply to temporary employees, too. Firing The doctrine of "employment at-will" states that employers and employees have the right to initiate and terminate employment relationships at any time, for any reason or no reason at all. For the last 100 years or so, employment at-will has been presumed by the courts to be in effect unless expressly nullified by statutory law, personal contract or collective bargaining agreement.

As a result, an estimated 60 million U. S. employees are subject to employment at-will (Stieber, 1985). However, where employers once enjoyed no legal constraint on their ability to discharge employees, things have changed. Since a groundbreaking court case in 1959, three types of "exceptions" to employment at-will have emerged in common law applicable to these employees.

In the last 25 years, the number of discharge-related court cases has increased steadily and damages associated with liability have grown as well (Pepe & Hayward, 1994). In addition to damages associated with liability, other negative outcomes of legal action by discharged employees include preparation time, attorney fees, settlement coats, lowered morale on the part of workers and a tarnished public image. These outcomes may result in the organization "losing" as soon as a discharged employee decides to file suit, even if the suit never goes to trial. In view of these negative outcomes, it is critical that organizations consider the factors that underlie discharge-related lawsuits and conduct discharges in a fashion that limits the likelihood of legal action and the chances that the organization will be found liable if the suit goes to trial.

Although attorneys will handle the situation once a suit has been filed, HR personnel are primarily responsible for the design and implementation of policies and activities that will affect the likelihood of a lawsuit in the first place. At a minimum, HR practitioners should be familiar with statutory and common law developments relevant to discharge that will allow them to recognize troublesome practices that could potentially lead to litigation. Ideally, this knowledge can be applied proactively in the design and implementation of HR policies that reduce the threat of lawsuit. Once at-will employment was established, two factors combined to make it very difficult for employees to argue that employment relationships were something other than at-will. First, employers were given the benefit of the doubt in that at-will was presumed to be in effect by courts without "additional consideration. " Second, courts at all levels tended to hold a very narrow interpretation of "additional consideration, " essentially requiring a signed written agreement before recognizing that employment at-will was not in effect. In the absence of an explicit contract specifying the duration of employment, courts were unwilling to enforce alleged promises of long-term employment.

The presumption of employment at-will and the strict standard for rebuttal combined to make it very difficult for employees to win lawsuits based on claims of unfair or inappropriate discharge. When an at-will employee is discharged and decides to bring suit, the case will more than likely be heard as a civil suit by a state trial court. In contrast to employment discrimination, state courts (as opposed to the federal courts) handle most cases involving discharge. The two most relevant categories of civil law are contract law and tort law. In cases involving contract law, the courts must determine whether or not an enforceable contract existed and whether or not it was broken. If a contract existed and was broken, damages awarded to the defendant may include income, benefits, commissions or other compensation that could reasonably have been expected from fulfillment of the contract, including "back pay" and sometimes "front pay. " Tort law applies to situations involving personal injury, broadly defined.

Basically, in addition to all the damages available under contract law, plaintiffs in tort cases may be awarded punitive damages to punish the defendant for actions leading up to or causing physical injury or emotional suffering. Most jurisdictions do not allow recovery of punitive damages in cases involving breach of contract unless a tort is also involved (Rothstein et al. , 1994). Discharge cases involving tort law thus have the potential to be much more costly to an organization. The primary alternative to at-will is discharge based on "just cause" (or "for cause"). Just cause discharge policies identify a set of conditions detailing when discharge is warranted and often a set of procedures to be used to ensure that those conditions are met. As a result of the increasing legal vulnerability of the at-will doctrine, an increased number of employers have abandoned it in favor of just cause policies.

In the next section, we briefly review the statutory limitations on discharge that apply regardless of discharge policy. Today, employment at-will remains the predominant employee relations policy in the United States and is presumed in effect unless superceded by a contract, collective bargaining agreement, or statutory law. Despite the scope of employment at-will, three common law exceptions have emerged in tort law or contract law since 1959 that constrain the ability of employers to legally discharge at-will employees: breach of implied contract, breach of the covenant of good faith and fair dealing and discharge in violation of public policy. Two other types of torts, constructive discharge and abusive discharge, may arise depending on how an employee is made to leave. Privacy Privacy has become a "hot" issue of major proportions that can easily strain human resources. Issues now reach far beyond the traditional personnel file.

Encrypting transmissions of employee benefits information online, determining what health-care information can or should be divulged, to whom, and for what reasons; deciding what standards apply to the personnel files of international employees are now common activities. In fact, privacy is so complex an issue that some companies have assigned one person to handle it exclusively. Government also is grappling with the privacy issue. Several new and re-worked bills are pending in the current legislative session of Congress.

And several agencies have climbed into the ring by trying to hone privacy definitions. Employer groups are finding some of these efforts problematic. For example, the new rule barring the use of health information in employment decisions under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Unfortunately, privacy is an area with many questions and few answers. And the best preparation for HR professionals who want to lead their companies' efforts to cope is to understand the questions. (Glover, 2002) What is private? This is a hotly debated question.

HR professionals have their own views on what should be considered private -- and in what areas an employer's rights override privacy. The Society for Human Resource Management (SHRM) /West Group 2000 Workplace Privacy Survey released in December found that HR professionals tend to view only "truly personal information, " including genetic...


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