Part 11- Regulation of Business, Chapter 51: Employment Law, Note 8

Summary: Employment Law Insights from Pages 1377–1380 1. Uniformed Services Employment and Reemployment Rights Act (USERRA)    Purpose: Protects employees serving in the military, including reservists and National Guard members. Key Provisions: o Prohibits discrimination based on military service. o Grants reemployment rights after military leave for up to five years, provided: 1. The employee gives advance notice of leave. 2. The leave ends with an honorable discharge. 3. A timely reemployment request is made. o Requires reinstatement to a position reflecting the employee’s escalator principle—the role and benefits they would have achieved if not for military service. Employer Defenses: Reemployment may not be required if: o Circumstances make it unreasonable or impossible (e.g., the job no longer exists). o Accommodating a disabled veteran imposes undue hardship. o The position was temporary or seasonal. 2. Retaliation Protections    Scope: o Laws like Title VII and the Fair Labor Standards Act (FLSA) protect employees who file complaints or participate in investigations from retaliation. o Retaliation includes adverse actions like termination or demotion. Supreme Court Precedent: Retaliation provisions are interpreted broadly, extending protection to complaints made in good faith, whether oral or written (Kasten v. Saint-Gobain Performance Plastics Corp.). Employer Caution: Even if an employee’s original claim lacks merit, retaliatory actions can result in liability. 3. Privacy Concerns in Employment  Employee Privacy Issues: Polygraph Testing: Regulated under the Employee Polygraph Protection Act, which prohibits most private employers from requiring or using lie detector tests, with exemptions for certain industries (e.g., security firms, defense contractors). o Drug and Alcohol Testing:  Public-sector employees are protected by the Fourth Amendment. Testing must be based on reasonable suspicion or justified by public safety concerns.  Private-sector testing may face state law restrictions or tort claims for invasion of privacy. Federal laws mandate testing for certain industries (e.g., aviation, trucking). Employer Searches: o Public employees have a reasonable expectation of privacy in certain areas (e.g., desks, lockers). o Searches must be reasonable and balanced against the employer’s need to maintain order or security. o In the private sector, constitutional protections do not apply, but invasion of privacy tort claims may arise if searches are overly intrusive. Monitoring and Surveillance: o Employers may monitor employee communications, internet usage, and physical activities using tools like cameras or keyloggers. o Legal disputes arise when monitoring intrudes into areas with a reasonable expectation of privacy, such as restrooms. o Many employers adopt explicit monitoring policies, reducing privacy expectations for employees. o   4. Ethical Concerns in Hiring Practices   Employers increasingly use social media screening to assess applicants’ character and professionalism. Scenario Analysis: Kelley Pharmaceuticals asking a university intern to "friend" a job candidate on Facebook to access private content raises ethical concerns: o For Outten (HR Director):  Breach of trust—using deceptive means to gain access to private information.  Potential invasion of privacy, leading to reputational or legal risks for the company. o For Samuel (Intern):  Ethical implications of misusing his connection to the candidate.  Potential violation of the candidate's trust and personal integrity. 5. Federal Employment Discrimination Law Comparison Law Equal Pay Act (EPA) Title VII Section 1981 Age Discrimination in Employment Act (ADEA) Americans with Disabilities Act (ADA) Genetic Information Nondiscrimination Act (GINA) Immigration Reform and Control Act (IRCA) USERRA Protected Traits Key Scope File Charge Required? No Sex (pay discrimination) Race, color, national origin, religion, sex Race, racially characterized origins Pay only Wide range of decisions Wide range No Age (40 and over) Wide range Yes Disabilities Wide range Yes Genetic information Wide range Yes National origin, citizenship Military service Hiring and termination Wide range Yes No No