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Statutory exceptions to the right to employment at will

1.  Using Summary of the Major Laws of the Department of Labor, located at http://www.dol.gov/opa/aboutdol/lawsprog.htm, choose two employment laws, and examine the impact of each law on human resources management (HRM). Support your response with specific examples of each selected law's impact on HRM.

2. Illustrate one specific example of any statute (e.g., Title VII of the Civil Rights Act of 1964, American with Disabilities Act [ADA], the Family Medical Leave Act [FMLA], or other statutes) that prohibits an organization from exercising its employment-at-will rights. Specify the rights that an employee could most successfully exercise against an organization for violating the selected statute.


3. Contrast the primary differences between independent contractors, temporary employees and volunteers. Then, examine two way in which each role differs from that of an employee. Justify your response.

4. From the e-Activity (http://www.eeoc.gov/laws/types.), select two employment discrimination laws, and then provide two disparate treatment case using the same discrimination law. Review only the facts of the case, the legal issues relating to the disparate treatment, and the court's decision. Next, outline the steps the employer could have taken initially to prevent the discrimination in question. Justify your response.

5. Choose two of the following employment tests: drug tests, medical examinations, polygraphs or honesty tests, and scored test of ability. Next, analyze the manner in which the testing itself could be considered illegal when an organization does not properly use it during the employment hiring process. Justify your response.

6. Give your opinion of the purpose of the Bona Fide Occupational Qualification (BFOQ), as discussed within the text. Then, suggest two occupations where the discriminatory requirement is legal. Justify your response.

7. Review the background of affirmative action. Then, argue whether or not the intended fairness afforded by affirmative action is relevant to the 21st century, considering that organizations are typically trending toward promoting a diverse workforce. Justify your response.

8. Select two of the following types of harassment: same-sex harassment, cyber harassment, or hostile virtual environment. Investigate the significant ways in which the selected type of harassment could alter work conditions in any organization. Then, formulate a plan to minimize the selected type of harassment in the organization.

9. Using one case where an organization unfairly executed its reasonable accommodation policy, summarize the outcome of the selected case. Then, outline a corrective action plan geared toward mitigating the unfair reasonable accommodation practices within the organization in question.

10. Determine two work-life challenges that either military personnel (e.g., Reserve and National Guard, etc.), individuals with accents or English fluency concerns, or gays / lesbians may face within any organization. Examine at least two employment laws that protect your selected group. Next, outline a plan that could assist an organization in protecting the selected group from discrimination

Statutory exceptions to the right to employment at will

1. i) Wages and hours-overtime pay and standard wages have been prescribed by Fair Labor Standards Act (FLSA) which has a major impact of public and private employment. Wage and hour division administrates the legislation. The employers are required to pay through it the covered employees who have not been exempted otherwise the minimum of overtime pay of one and half of the regular pay along with the minimum wages. The act also prohibits employment in certain areas to a person below the age of 18 years and in agriculture below the age of 16 years. If the organization do not pay such wages as directed by the act they may be prosecuted under it.  

ii) Workplace Safety & Health- the Occupational Safety and Health Administration (OSHA) administrates The Occupational Safety and Health (OSH) Act. The OSHA approved state programs and the OSHA itself regulates health and safety conditions in the private industries. The employers who come under the scope of OSHA have to comply with the health and safety requirements prescribed by it. The non compliance with OSHA can result in breach of its provisions and penalties.

2. One major statutory exception in relation to the right to employment at will is provided through the Americans with Disabilities Act of 1990. According to the provisions of this act an employer cannot discriminate any person based on their being handicap. In this case the employee can claim compensation from the employer through legal actions as was in the cases of Zamora-Quezada v. Health Texas Medical Group, 34 F. Supp. 2d 433 (W.D. Tex. 1998) and  "US AIRWAYS, INC. V. BARNETT (00-1250) 535 U.S. 391 (2002) 228 F.3d 1105. In the Zamora case the license of the HMO’s were suspended for revoking practices of doctors who provided medical treatment to the diabetic patients.  In the US airways case the employee succeeded in actions against the defendant company as they were not able to provide him effective accommodation after he got disabled during the job. Thus when it comes to the right to employment at will the employers have to take into account the statutory as well as the common law exceptions of the right such as public policy, implied contract and good faith and dair dealing exceptions.

3. A person who performs service in relation to a public company for specified hard in relation to humanitarian charitable or Civic reasons without any expectation promise or received of compensation for the services provided is known as a volunteer during such hours. There are various test to determine whether a person is an independent contractor or an employee the main characteristics of an independent contractor is that a very low degree of control is exercised over is working by the employer and his paid after the work is completed. He uses his own tools most of the times and carries on the work according to his own suitable time. A temporary employee on the other hand is a person who is employed by the employer and receives hourly wages along with Benefits Life Insurance retirement plan and vacations. They are also entitled to overtime wages.

Types of employees - volunteers, independent contractors, and temporary employees

Temporary employees work on a flexible basis where as permanent employees have a permanent employment contract. A permanent employee is entitled to full time employment benefits. Based on the amount of time was a temporary employees only allowed 28 days per annum holiday.

A contractor is not entitled to any holiday which is paid. An employee can take paid holidays. A contractor is not paid on an early a daily basis. And employees paid on and weekly early or daily basis.

A volunteer is not paid. An employee is paid. Employers have certain obligations towards employees. Volunteers and not entitled to any employment benefits (Filipp & Castagnera, 2016).

4. Age Discrimination in Employment Act- EEOC v. Hawaii Healthcare Professionals, Inc. a/k/a Hawaii Professional HomeCare Services, Inc., Case No. CV-10-00549 BMK

The claimant was terminated and given this passing remarks because of her age. The company give an order for termination in 2008. The claimant was A 54 year old office coordinator at the Maui facility of the company. It was provided by the company that a more efficient manager has been hired in place of the claimant. It was provided by the port dad this action was against the age discrimination in employment act. The court provided monetary awards for the claimant along with strict orders for the defendant 2 which train from any future discrimination related to age.

Americans with Disabilities Act- in the case of fry vs Napoleon community schools 2017 the court made clear the meaning of disabled in relation to the American with disabilities act and provided the right to the students to directly initiate a lawsuit with respect to the Americans with disability act along with rehabilitation act of 1973 Section 504. The court in addition provided that no administrative hearing with respect to individuals with disability Education Act is required for making such a lawsuit. This is possible when the claim made by the students is not in relation to level of education with respect to their education.

5. An employer is not allowed to take any kind of medical examinations before hiring employees. This is because if medical examination is taken and the employer is able to find out any disabilities in relation to the Employees they would not select them for the purpose of the job. The Americans with disabilities act so if it’s any kind of medical examination before the process of recruitment is completed. There for indulging into any kind of medical examination before the process can lead to the violation of the Americans with disabilities act. The Act also does not allow to gather any kind of medical information in relation to the application before an offer for the job is made to them.

Bona fide occupational qualifications

Conducting a drug test before the process of recruitment is legal in the United States. However only certain kind of drug test in specific circumstances are permissible. In case strict rules are not followed in relation to conducting drug test during the process of recruitment it may lead to the violation of privacy rights of the potential employees. The employee can be directly suit for the violation of privacy rights by the potential employees if they feel that the rights have been violated with respect to the test.

6. Bona FIDE occupational qualification is contained in both age discrimination in employment act and title VII of the Civil rights act of 1964 in form of a defence. According to search defence it is not unlawful for an employer to hire a person based on age sex religion disability or any other trade if it can be proved by the employer that search requirement is essential for the purpose of the employment. This is a very useful provision as if it is not incorporated into the employment law it would be very harsh on the employers and the purpose of certain jobs would be defeated. In addition this provision allows an employer to select the perfect employee for the job which could not be completed otherwise. For instance if black person is required to perform a role in a movie it would not amount to race discrimination.

One area of employment where this rule prevails is that there is a mandatory retirement age in relation to airlines Pilots and bus drivers because of safety purpose.

Another place where the soul prevails is that of a religious institution which may require a person of the same religion as an employee (Becker, 2016).

7. Affirmative action resulted out of the 1960 civil rights movement which had the intension to give equal opportunity to the minority group members along with women in employment and education. The term affirmative action was first used by President Kennedy with respect to an executive order which required government contractors to pursue affirmative action for ensuring employment of applicants without any discrimination. The initial focus of affirmative action was to increase opportunities for African Americans in education and employment.

The fundamental principles in relation to affirmative action was intended fairness. This meant to provide opportunities to those in employment and education who had problems in attaining them. In the 21st century the main motive all the organisations are to have a diverse workforce. The intended fairness in affirmative action is relevant as the main principles of the concept was to provide opportunity to everyone regardless of any special traits such as race gender or age which is also required to hire a diverse workforce.

Affirmative action in the workplace

8. Same sex harrassment like any kind of harassment at workplace creates a unhealthy working environment and hampers the productivity of the employees. Same-sex harrassment is in addition more difficult to report as they are unconventional and difficult to identify. Whenever a person is sexually harassed their moral in relation to the workplace goes down and it hampers the productivity and subsequently the productivity of the organisation also goes down. In addition the employer can be held liable according to the principles of vicarious liability for any same sex harrassment which takes place within the workplace. Therefore it is of utmost importance to eradicate such Evil practices from the workplace.

In order to eliminate or minimize the risk of same-sex harassment within the workplace a proper reporting procedure has to be incorporated. The reporting procedure has to be confidential so that a victim does not hesitate to report any sexual harassment activities in the initial stages. The code of practices within the organisation must strictly won the employees about the consequences resulting out of any activities in relation to same-sex harassment. The management must always take the strictest possible action after proper enquiry revealed that a person has been indulged in actions relating to same sex harassment.

Cyber harassment is the new kind of harassment which has grown in number during the last decade. Cyber harassment includes harrassing a person with respect to the Internet. This may occur in any form such as blackmailing or extortion over the internet. Cyber harassment can be prevented by implementing strict monitoring strategies in relation to Cyber activities of the organization (Blanpain & Rapp, 2014).

9. In the case of US AIRWAYS, INC. V. BARNETT (00-1250) 535 U.S. 391 (2002) 228 F.3d 1105 the question before the court was to analyze that whether a defendant company made reasonable accommodation for the plaintiff or not. The Americans with disabilities act provide that it is an obligation of the employer to make reasonable accommodation for the employees in case of any disability suffered by them.

In this case the plaintiff employee suffered a back injury while working for the defendant employer and therefore got disabled. The employer initially made reasonable adjustments for the employees by providing him a word with required lesson physical effort as compared to his initial work. However the position which was offered to him was brought under the provisions of seniority and thus the senior employees of the organisation became eligible for such position. The plaintiff was terminated on the basis that there was no other job opportunity available for him in the organisation as that particular job no belongs to the senior employees. However the court in this case decided that the act of the employer in relation to the plaintiff was a breach of Americans with disabilities act and the employer is liable to pay compensation to the plaintiff in relation to failing to make reasonable accommodations for him. This case provided distinction between reasonable accommodation and dash.

10. Persons having accent or English fluency concern face various work life challenges. These challenges may include getting acquaintance with fellow workers the challenges may also include being subjected to unfair disadvantage in the workplace. Language discrimination protects these individuals from being exploited at the workplace. At common law also if a person has not understood a certain thing a contract with such person is regarded as invalid.

For the purpose of enhancing situation for people having problems with English fluency they may be provided with English classes within the workplace so that they can enhance and practice the language which would help them to understand the workplace better and to get acquaintance with the fellow workers.

They may also be supported by assigning them a person who has no problems with English fluency and who can help them out to manage their workplace activities and to understand others in a better manner (Walsh, 2015).

References

Becker, C. (2016). Thoughts on the Unification of US Labor and Employment Law: Is the Whole Greater than the Sum of the Parts. Yale L. & Pol'y Rev., 35, 161.

Blanpain, R., & Bisom-Rapp, S. (2014). Global Workplace: International and Comparative Employment Law Cases and Materials. Wolters Kluwer Law & Business.

Dowling Jr, D. C. (2014). International Equal Employment Opportunity: How a US Multinational Can Enforce Discrimination, Harassment, and Diversity Policies Across Its Global Operations.

Filipp, M. R., & Castagnera, J. O. (2016). Employment law answer book. Wolters Kluwer.

The Age Discrimination in Employment Act

The Americans with Disabilities Act

US AIRWAYS, INC. V. BARNETT (00-1250) 535 U.S. 391 (2002) 228 F.3d 1105 Walsh, D. J. (2015). Employment law for human resource practice. Nelson Education.

Zamora-Quezada v. Health Texas Medical Group, 34 F. Supp. 2d 433 (W.D. Tex. 1998)

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