Employment Law Avelino Rosa University of Phoenix

The purpose of this paper is to analyze a specific, hypothetical employment situation encountered and to include the information regarding employment conflicts, questions, grievances, lawsuits, etc., in terms of how the situation was handled or resolved. Employment conflicts are a constant issue everyday in any organization; it is how you handle them both legally and professionally that counts. Employment Law Situation

In this situation an employee, new to office politics was continuously making slanderous or racial remarks. Not that they were blatantly slanderous or racial he did them ignorantly. The employee would make remarks such as “old people should not drive. Anyone over the age of 50 should be restricted from driving. They always cut me off. Forget it if they are Asian, it doesn’t matter what their age is” or “well, all the people who live in that neighborhood are white and rich” or “only tall Mexicans hold positions of management” which were obviously against the diversity policy at the organization.

On another occasion, frustrated by the lack of Starbucks Coffee houses in the area, he made a comment to another employee upon arriving at training one morning. “Don’t Asians drink coffee around here?” Several employees had made other observations in regards to comments made about African Americans and Asians; however, after this last comment, several employees brought it to the attention of the employee’s manager to address.

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Federal Employment Laws Primarily, the employee was in violation of federal laws, which protect employees regarding slanderous or racially remarks. According to Title VII, it is illegal to harass someone because of the person's race or color, religion, sex, pregnancy, childbirth and national origin (including membership in a Native American tribe). This is not just employers but employees as well.

When the employee was confronted about the situation, he said that the person he said these things to was agreeing with him; however, it was brought to the employee’s attention that it was not that particular employee that complained, rather a group of people who overheard this. Of course, this upset the employee stating that the other employees were eavesdropping and should not have been listening to his conversations. The manager had to remind the employee of the laws pertaining to harassment and that it did not matter if he had said it directly or indirectly to the offended employees.

Effectiveness of the Law The employee had received training in diversity and had completed a required tutorial on workplace harassment. The law is very clear in respect to workplace harassment and the employee was reprimanded appropriately. As he questioned his actions and what exactly he had done, the law provided very specific answers. When reminded of his tutorials, he abdicated that he had done wrong and accepted the consequences.

Employment Law 4 Actions Required by Law Appropriate action is required by law. Once information is gathered, it must be concluded as to whether or not some form of discrimination or harassment occurred. Then it is up to the organization to figure out how to discipline the wrongdoer(s) appropriately.

Termination may be warranted for more egregious kinds of discrimination and harassment, such as threats, stalking, or repeated and unwanted physical contact; however, lesser discipline, such as a warning or counseling, might be in order if the harassment arises out of a misunderstanding (a blundered attempt to ask a coworker on a date, for example). Once you have decided on an appropriate action, take it quickly, document it, and notify the accuser (Findlaw.com, 2008). A discrimination complaint can polarize a workplace.

Workers will likely side with either the complaining employee or the accused employee, and the rumor mill will start working overtime. Worse, if too many details about the complaint are leaked, you may be accused of damaging the reputation of the alleged victim or alleged harasser -- and get slapped with a defamation lawsuit.

It is imperative that confidentiality is kept during the investigation. If the employee makes a complaint with a government agency (either the federal Equal Employment Opportunity Commission (EEOC) or an equivalent state agency), that agency may investigate. It will probably ask you to provide certain documents, give your side of the story, and explain any efforts you made to deal with the complaint yourself. Be cautious, but cooperative. Try to provide the agency with the materials it requests, but remember that the agency is gathering evidence that could be used against you later.

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Contract Employees Employees working on behalf of the organization are as legally obligated to follow all employment laws and are as protected as full-time employees (Fishman, 2007). If the contract employee was the offender, immediate dismissal could occur as long as it did not conflict with the contract between them and the organization. Most contracts have a clause, which includes HR policies and procedures and what the contract employee is required or not required to do or to abide by. For example, a temporary employee is a contract employee. If a full-time employee harasses them, the temporary agency may act on their behalf and file a complaint against the employee and the organization.

The same is true if the situation was reversed. If a contract or temporary employee violates employment laws, the organization may bring charges again the individual or the organization in which the contract employee is contracted from. The harasser can be the victim's supervisor, manager, or coworker. An employer may even be liable for harassment by a nonemployee (such as a vendor or customer), depending on the circumstances (Findlaw.com, 2008).

Unions According to San Francisco lawyer, Michael Mortimer (2006) labor law, and employment law are not the same. "Labor Law" refers to state and federal laws related to organized labor, labor unions, union contracts, grievance procedures, and a federal regulating body called the National Labor Relations Board (NLRB, Employment Law 6

2008). "Employment law" typically deals with nonunion matters. People think that attorneys specializing in "employment law" also handle "labor law" claims. This is generally not true. Attorneys specializing in "Labor Law" typically specialize only in matters dealing with unions and organized labor, while employment law lawyers deal with everything else. Some state and federal laws regulating employment controversies do not apply to union employees.

This is because workplace conditions may be addressed in union contracts. The underlying logic of this policy is that since many union employee rights are adequately addressed and protected in collective bargaining contracts, then certain laws should not apply to employees and employers working under such union agreements. Courts have ruled that some federal or state laws apply equally to nonunion and union employees. For example, courts have ruled that a union employee can file a lawsuit against an employer for harassment and that the employee is not required to pursue a discrimination claim through the union grievance process (Mortimer, 2006).

In order to answer this question appropriately, the manager would have to consult the contract in which the employee or employees are under. As noted above, most union contracts have specifics in their contract related to discrimination and or harassment; however, in this situation, most likely the employees would not have to go through the union to file a complaint against the offender; however, the offender would have certain protections in relation to his contract.

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References:

Findlaw.com, 2008. Title VII of the Civil Rights Act of 1964: Equal Employment Opportunity. Retrieved December 12, 2008 from: http://employment.findlaw.com/employment/employment-employee-discrimination-harassment/civil-rights-title-7.html Findlaw.com, 2008. Preventing Sexual Harassment in the Workplace. Retrieved December,11 2008 from: http://smallbusiness.findlaw.com/employment-employer/employment-employer-discrimination/employment-employer- discrimination-preventing-sexual.html Findlaw.com, 2008. Independent Contractors vs. Microsoft: Don't Treat Contractors Like Employees. Retrieved December 11, 2008 from: http://smallbusiness.findlaw.com/articles/3737.html Fishman, S., 2007. Pros and Cons of Freelancing, Contracting, and Consulting. Retrieved December 11, 2008 from: http://www.nolo.com/article.cfm/catId/450464AB-FA7C-4AAC- B374F1BCE305E4DB/objectId/221FE3AA-D933-4595-B0ACEAA2082BC06F/111/159/ART/

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References (cont.) Mortimer, M., 2006. Employment Law and Labor Law. Employlaw.com retrieved December 11, 2008 from: http://www.employlaw.com/hoffa.htm National Labor Relations Board (NLRB), 2008. Workplace Rights. Retrieved December 11 from: http://www.nlrb.gov/workplace_rights /employees_or_employers_not_covered_by_nlra.aspx