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Mark, John, LER 290 Final Exam, 12/14/15Question 1

The implementation of employment laws to regulate the treatment of individuals in the

workplace did not gain momentum until the passing of the Civil Rights Act of 1964; which was

the 3rd attempt at a bill of its kind to properly protect against discrimination. Since then, there has

been a lot of employment legislation passed that attempts to mediate the relationships –both

business and interpersonal– that are formed amongst employees and employers. Discrimination

laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act

have been properly adapted to protect against workplace discrimination and abuse. However,

safety and economic regulations such as the Worker Adjustment and Retraining Notification Act

(WARN) and Occupational Safety and Health Act (OSH Act) have kept the power in the hands

of industrial progress and profit for employers.

The ADA requires that an employer not be discriminant towards “qualified individuals

with a disability” through “reasonable accommodation” provided that it does not cause the

company an “undue hardship.” All of these defined terms of condition for the existence of the

ADA make it a suitable law that effects change for disadvantaged workers without sacrificing

their value to potential employers. Too many restrictions to comply with discriminatory

regulations can cause employers to lean away from candidates because of the extra effort or

resources it may cost. An individual must prove that they have or have had, for a long-term

period, a mental or physical impairment according to the ADA guidelines. These have been

revised under Bush’s 2008 ADAAA to ensure that only those who have a long term impairment

that limits a major life activity will qualify such as deafness, epilepsy, or bipolar disorder.

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An individual who has a qualifying disability must not be discriminated against in

regards to recruiting, hiring, training, promoting, time off, assignments, wages & benefits, or

termination. Under this, a nurse in a wheelchair will not only receive disabled patients to treat

and cannot be harassed for his disability. Because of the stipulation of undue hardship, one

would not expect that reasonably accommodating disabled employees would increase

subconscious/conscious retaliatory behaviors by supervisors. Providing the accommodation

means providing assistance or making workplace changes to the application process, work

environment, or other conditions so that disabled employees receive the same benefits and

privileges as other employees. A deaf employee may need a cheap light on her work phone or a

wheelchair bound employee might have problems without an elevator; but if the accommodation

involves significant difficulty or expense that alters the nature of business, then it is considered

“undue hardship” and is not required of the employer. This law, which has been revised to ensure

proper regulation, properly protects covered employees by ensuring equal opportunity without

diminishing the employee’s value.

The objective of anti-discriminatory legislation is not to even a playing field, but instead

to make sure that all players have the same opportunities. As mentioned in the opening, the Civil

Rights Act of 1964 was innovative in providing protective rights for the individual against

discrimination and segregation. Title VII of this bill provides the same protections, based on

race, color, religion, sex, and national origin, made specifically for the workplace environment.

Although the abstract concept of discrimination is not likely to disappear because of the law,

similar to the ADA, it is required of almost all private employers (above 15 employees), public

employers, all government, and all labor organizations. It is essentially the prevailing anti-

discrimination bill in which all others drew from and stemmed off of, including the Pregnancy

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Discrimination Act which became an amendment of Title VII. The new legislation in public

attention is the addition among several states of sexual orientation to the protected classes of

Title VII.

One would not expect employers to fight these regulations because they are morally

logical as well as strict in regards to penalties and punitive damages. The EEOC is one of the

biggest federal regulatory agencies of employment law because it enforces the ADA, ADEA,

EPA, OWBPA, PDA, and Title VII which are all anti-discrimination laws. Every state also has at

least one of its own anti-discrimination laws and regulatory agencies (Illinois has protection

based on sexual orientation and the Illinois Department of Human Rights in Chicago, IL). When

employers are guilty of violating these anti-discriminatory laws like the ADA and Title VII,

repercussions may include: paying lost wages, reinstating or hiring, promoting, paying punitive

damages, and providing the reasonable accommodation which can cost an employer anything

from roughly $50,000 to over $300,000. Strict enforcement, proper definitions of which

employees are covered, and maintenance of employee value over required compliance makes

anti-discrimination law adept at protecting modern workers from potential negative actions from

their employer.

Employment laws extend into every nature of the employee-environment and employee-

employment relationships in the workplace. The proposed bills over the last half century have

attempted to modify the safety and security of workers both economically and physically.

Legislation that deals with wage & benefit protection (WARN, FMLA, & EPA) is often

contested due to the potential for improvement; like the efforts of the National Partnership for

Women and the medical community to increase paid leave benefits provided by the FMLA.

OSHA is the primary federal law that deals with worker safety and health (aside from FLSA

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laws of child workers and hours worked), which indicates the poor regulatory efforts in this area.

Discrimination against specific worker groups would come as an outrage to national news, yet

the death of workers at their place of employment often does not because only one of those

issues drastically effects production and profit.

American capitalism and global competition have paved the way for high efficiency and

effectiveness among staff. The OSH Act, regulated by the Occupational Safety and Health

Administration (OSHA), includes 4 provisions to its law: compliance with OSHA standards,

safety of recognized hazards, submission to inspections by OSHA officials, and acceptance of

employee requests of workplace hazards. Lastly, employers must also keep accurate records of

any work related incidents of health and safety. Because the OSH Act has thousands of industry

specific pages guiding workplace safety, it is an incredibly complicated and difficult to comply

with law. Penalties can be assessed up to $70,000 for each incident of knowing violations. The

major letdowns of the bill include numerous complicated provisions, no reward system for

continued compliance, and lack of agency enforcement.

OSHA and many individual states have put in place resources for employers to use to

help understand which of the regulations it falls under, because most companies fall into dozens

of categories. Every private employer, even those with only on employee, must comply with the

OSH Act. Therefore it can either be difficult to determine which rules apply, or easy to disobey

them while feigning confusion. Compliance should actually be termed “pre-inspection

compliance” because the employer must follow OSHA standards before being required to do so

by an OSHA inspector. Furthermore, the fines for lack of compliance or failing an inspection can

weigh upwards of $70,000 per violation, yet there is no positive benefit to OSHA compliance

other than the absence of fines and losses. Employers are less likely to comply if there is no

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incentive and relatively few regulatory agencies. OSHA, a division of the Department of Labor

(DOL), has seen budget cuts in the past decades and cannot conduct inspections of all national

job sites. The first method of inspection for officers involves a telephone discussion of the

employer’s compliance report. Only if that warrants further inspection does an in-person

inspection take place, usually by one inspector. Each state has its own health and safety agency,

but the problem still lies in the sheer number of employers and the lack of budgets for trained

inspectors. States like North Dakota who need regulation of their deadly oil business only have 9

inspectors for the whole state. Numbers in 2006 showed that 15 workers had fatal, workplace

accidents (which 2014 data shows this number has only gone down to roughly 12.8).

Both the OSH Act, and the bill WARN, meant to prepare workers for mass layoffs and

closings, severely lack proper enforcement to implement change in the workplace. In 2001, the

General Accounting Office reported that 98% of employers did not have the 100 minimum

employees (working at least 4,000 hours per week) to qualify for WARN and of the small

amount that did, only 9% of employees were properly notified under the requirements of

WARN. The provisions of this economic security law are not stringent enough and not properly

enforced. WARN is in effect only if a plant closing or mass layoff occurs over any 90-day period

that cuts more than 33% of the workforce. If 32% is cut or if this happens over a greater time

period, the employer does not have to give the 60 days written notice. Also, independent

contractors and municipalities in which the employer resides are not required to be notified and

will surely be affected by such an event. A federal agency was never assigned the WARN Act

because of 2013 budget cuts which left the federal government to foot the bill for any court cases

to arise due to WARN. There is no federal or state agencies to monitor WARN violators other

than individual employees who must try to win litigation against violations of a vague bill.

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Somehow, the protection of workers’ rights in regards to economic and moral integrity are not

adequately enforced because of the effect it has on business productivity and profit.

General, sweeping statements are difficult to definitively debate because there can be

both truths and falsehoods to the statement. Employment laws adequately protect 21st century

workers from discrimination and abuse, but not from injury, economic exploitation, and

insecurity. The enforcement of discrimination legislation comes from the basic principal of

freedom enjoyed in America. Our unalienable right to liberty is defended, but we do not receive

the same protection of our right to life or the pursuit of happiness, because both can be taken

away by our employer without proper penalty.

Question 2

The Bill of Rights, the first amendments to the Constitution, were put in place to

guarantee certain individual freedoms to the Anti-Federalists who feared another governing

body. They included such rights as freedom of religion (amendment 1), protection from cruel and

unusual punishment (amendment 8), and the right to bear arms (amendment 2). These, along

with such ideals as equality for all men as written in the Constitution, were meant to be the basis

for employment law. There are numerous laws that protect personal privacy and fairness (EPA,

EPPA, and GINA), but the nature of the employment relationship, especially among private

employers, has eliminated certain individual freedoms at work.

Lewis Maltby, a workers rights advocate and former employee in the human relations

occupation, uses the term “black hole” to describe the current state of human rights in the

workplace. However, the level of concern for privacy and fairness as guaranteed by the

Constitution is well protected by modern employment laws. The Equal Pay Act requires that men

and women be paid “equal pay for equal work.” Any business who receives $500,000 or more in

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yearly gross income is covered under the EPA and based on success in business, this likely

covers most private employers. Differential pay scales that are cited today are often a result of the

inherent differences among occupations typically resulting from culturally stereotyped gender

roles such as women who becomes nurses and teachers. The EEOC regulates employee

grievances and, because it is in regards to important changes in legal wages, the employee has 2

years to file such a report. Discrimination laws in the U.S are advanced and expansively covered

by agencies such as the EEOC.

Newer employment laws have been put in place to regulate the information that

employees can ask about, receive, or disseminate. The amount of information available to

employers has increased over the years due to the rise of overall available data on individuals as

well as the important of testing and job performance correlations among I/O psychologists.

Employers collect vast amounts of personal information on private areas of employee’s lives

such as disabilities and genetic information. The ADA and Genetic Information

Nondiscrimination Act (GINA) both include provisions prohibiting employees from using such

information in employment based decisions as well as requires them to maintain confidentiality.

The penalties for violating GINA are as steep as those for violating Title VII. The Employee

Polygraph Protection Act (EPPA) follows similar standards of the Fair Labor Standards Act

(FLSA) which provide coverage for almost all public and private sector employees. It generally

prevents employers from even using polygraphs, or “lie detectors”, with standard guidelines

when exceptions do apply. Data from polygraphs cannot be the sole basis for adverse impact, but

instead must be supported by further hard evidence. Current employment laws allow for the

collection of information by employers, but restrict the chances of leaked personal information

because of strict guidelines about the use and distribution of individual privacies.

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The protection of other individual freedoms and autonomy is not as well protected as

worker privacy and fairness. The employment at will doctrine (EAW) is the term for the

fundamental definition of modern employee-employer relationships in the private sector. This

idea, based on the “master-servant” relationship from the Middle Ages, guided subservient rules

in accordance with property laws both then and now which allow executive control over

privately owned land. The masters of the home once treated workers like family, but the private

property owner can now control every aspect of what happens on their property (aside from

contractual obligations and breaking laws). However, the rights of workers not specifically

entitled among employment laws are stripped. The right to bear arms is not mandated in most

workplaces because of supervisory safety rules, the right to illegal search and seizure does not

apply when most of an employee’s space is covered under privately owned, company property,

and the right to thought in the first amendment cannot be free if it is being surveilled.

Under the Bill of Rights, we are guaranteed to not be put under the theft of thought or

otherwise by the 1st and 4th amendments; but current practices of e-mail screening and computer

monitoring that began around 1998 seem to be in direct violation of these amendments. Because

of the protection of private employer’s rights, violations such as these are only illegal if the

information is later disclosed (tort of invasion of privacy) or used in a manner which is

“outrageous and intolerable to civilized society” to intentionally harm an employee (tort of

intentional infliction of emotional distress). This allows employers to take your computer from

work and search through everything for which it has ever been used. Normally, a qualifying

reason or search would be needed, such as an email scan of the word “harass,” but other practices

are not necessarily prohibited by any employment law, just the United States Constitution.

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For the most part, our rights are infringed upon when we enter the workplace, because we

are willingly entering into an implicit contract to provide a service according to the rules and

guidelines of the workplace. Common sense and the law would dictate that we are free to choose

not to engage in work that we feel takes away our rights. However, the need for income and the

type of available jobs in the current labor market do not stray far from the average model.

Matlby’s statement describing the modern workplace as a “black hole” is accurate, although not

from an astrological standpoint. Basic freedoms guaranteed each citizen are forced to be held off

so that one can “make a living.” Is it really living if it isn’t free?

The law should not further regulate what basic rights we are afforded in the workplace.

There is no way to properly define the rights of others on someone else’s property because then

the government is simply infringing upon more individual rights. The evaluation must be made

on when a private employer moves from being a single entity with individual and property rights

to a collective employer which is facilitated by multiple supervisors and is in charge of the rights

of more than 5 employees. This way, the neighborhood home that hires 5 local painters is not

treated the same way that an office supply company employing 30 people, with the capabilities

that $1 million annual revenue provides.