Contingent Employees

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Contingent Employees: Joint Employer Issues with Temporary and Leased Employees Under Various Arrangements Kira Fonteneau The Fonteneau Firm 2229 Morris Avenue Birmingham, AL 35203 (T) 205.533.9202 (F) 866.730.1427 www.kirafonteneau.com [email_address]

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Keith Srakocic/Associated Press Issues in Employment Unit VI Chapter 21 Establishing the Employment Relationship In this chapter you will: • Identify the unique characteristics and liabilities of different categories of workers. • Understand how respondeat superior and negligent hiring affect an employer’s liability. • Identify major legislation that governs employment–management relations. sea80373_21_c21_287-306.indd 1 10/4/12 3:27 PM Chapter 22 Introduction to Antidiscrimination Law In this chapter you will: • Understand the Commerce Clause and the Affectation Doctrine and the role of each in enforcing antidiscrimination law. • Understand the major components to a discrimination lawsuit, what each party needs to prove, and their respective burdens of proof. Chapter 23 Discrimination on the Basis of Race In this chapter you will: • Understand the application of Title VII to race discrimination and how it impacts business. • Identify steps that a manager can take to avoid race discrimination lawsuits. Chapter 24 Discrimination on the Basis of Sex In this chapter you will: • Understand the application of Title VII to sex discrimination and how it impacts business. • Identify other key legislation related to discrimination based on sex. Chapter 25 Sexual Harassment In this chapter you will: • Distinguish between different forms of sexual harassment. • Understand what an employer’s liability is in sexual harassment cases. Chapter 26 Other Types of Discrimination In this chapter you will: • Understand the application of Title VII to religious discrimination and how it impacts business. • Understand the application of Title VII to discrimination based on national origin and how it impacts business. • Understand the provisions of federal legislation that cover discrimination based on disability and age. • Identify examples of discrimination against nonprotected classes. sea80373_21_c21_287-306.indd 2 10/4/12 3:27 PM Establishing the Employment Relationship 21 In thinking about setting up a business, you may have considered that all workers are classified as employees, but this is not true. There are, in fact, numerous forms that an employer–employee relationship can take or transform into. This chapter begins with those types of relationships and examines the liability that can result from each. It will then look at some of the major labor law legislation from the 20th century. 21.1 Employer–Employee Relationship When an employer hires someone to work, the likelihood is that person will be categorized as an employee. Many students are unaware that the worker could actually be categorized in numerous ways: as an employee, an agent, or a servant. Some workers are not employees at all, but rather independent contractors (see Table 21.1). Each one of these types of workers has unique characteristics and liabilities. What makes someone an employee? It is well settled in law that employees ha ...

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54 Chapter 3 • The Legal Context 54 Chapter 3 • The Legal Context 50 Chapter 3 • The Legal Context Chapter 3 • The Legal Context 51 · Enhances the quality of the firm's hiring decisions. · Enhances the company's reputation and image as an employer. · Promotes the perception of fairness among job candidates. · Reduces the negative public relations firms experience when people feel they were discriminated against and tell others about their experience. · Reinforces an ethical culture. · Enhances an organization's performance by ensuring that people are hired or not hired based on their qualifications, not biases. · Promotes diversity, which can enhance an organization's ability to appeal to a broader customer base. Given that entire books have been written on employment law, this chapter's coverage of the major government regulations and legal issues involving staffing cannot cover every detail. This book is not intended as a legal reference, and it does not constitute legal advice. The purpose of this chapter is to provide an overview of some of the key laws and legal issues surrounding staffing and to identify resources for additional information. The chapter will also give you a good understanding of how to prevent discriminatory or illegal staffing practices. Laws change and differ from state to state, and they evolve over time, so you should always consult legal counsel to ensure compliance with current local, state, and federal regulations. In this chapter, we first discuss various types of employment relationships, their legal implications, and the influence of labor unions. Next, we cover some of the primary laws and regulations regarding staffing, different enforcement agencies, and different types of staffing-related lawsuits. Finally, we discuss barriers to legal recruitment and hiring. After reading this chapter, you should have a good understanding of how to create a legal staffing system. THE TYPES OF EMPLOYMENT RELATIONSHIPS Employers use different types of employment relationships to strategically manage their workforce and ensure that they have the number of workers with the skills they need ready to work when they need them. Let's look at these different employment relationships and their legal implications. 52 Chapter 3 • The Legal Context Chapter 3 • The Legal Context 51 EMPLOYEE someone hired by another person or business for a wage or fixed payment in exchange for personal services, and who does not provide the services as part of an independent business EXPLICIT EMPLOYMENT CONTRACT specific written or verbal employment contract IMPLICIT EMPLOYMENT CONTRACT an understanding that is not part of a written or verbal contract AT-WILL EMPLOYMENT an employment relationship in which either party can terminate the employment relationship at any time for just cause, no cause, or any cause that is not illegal with no liability as long as there is no contract for a definite term of employment Types of Employees EMPLOYE.

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In various occupations, workers may be prohibited from exercising certain rights that, outside the workplace, cannot (or, perhaps, should not) berestricted. At the same time, it has been argued that some behaviors may be restricted by some employers, even when the worker is not atwork, or their off-duty activity or conduct. This can lead to difficult conflicts between employer and employee, as well as among employees.Here we will look at some restrictions that may be imposed to investigate to which rights restrictions employees can and cannot object. We willbegin this discussion by looking at a real-life incident involving employee activity outside of the workplace. In September 2012, a number of paramedics were placed on administrative leave by their employer for working for another company. Thecompany, American Medical Response Incorporated (AMR) of Connecticut, provides emergency medical care (ambulances, paramedic services,etc.). The suspended paramedics were working for another company, Valley Emergency Medical Service (VEMS). AMR argued that suspension was appropriate because the other company was a competitor, both companies having bid on a service contract.The paramedics, in response, argued that being suspended was a violation of their rights, and began preliminary work toward a lawsuit underConnecticut's Unfair Trade Practices Act. What can and cannot any company control about what their employees do when they are not actually at work? AMR argued that theparamedics were aware that they could not work for a competitor; the paramedics claimed that AMR could not legally prevent them from doingso outside of the work they did for AMR. 4.1 The Issue: Restricting Employees' Rights as a Condition of Employment The case involving the AMR employees is one example of the kind of conflict that arises in the workplace. Those who are in positions ofmanagement and those who work for management often have very different views of what is justified, in terms of what one can do with one'stime off the job. As is so often the case in ethical disputes, few if any would accept the extremes here. For instance, probably no one wouldargue that salaried employees must do everything their bosses tell them; that would amount to something along the lines of one's bossdictating that worker's life. At the same time, just as few would argue that salaried employees can do whatever they wish, regardless of theeffect on the company for which they work. It is in between these extremes that tensions arise, and where the rights of the employers must beweighed against the rights of the employees. At-Will Employment Workers are said to be at-will employees, meaning an employer does not need to show cause for terminating the worker in question, whenthey are not protected by union contracts, civil service law, or other such provisions. They can be fired for any reason that does not conflictwith the law, and the employer is not obligated to show why the employee was fired. T.

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Chapter 13 Employees Rights and Discipline Copyright ©2019 Cengage. All Rights Reserved. Learning Outcomes After studying this chapter, you should be able to Explain the concepts of employee rights and employer responsibilities. Identify and explain what the privacy rights of employees are. Establish disciplinary policies and differentiate between the two approaches to disciplinary action. Identify the different types of alternative dispute resolution methods. Copyright ©2019 Cengage. All Rights Reserved. Discussion Starter #1 Google, owner of Nest, set up an internal website for employees to report whistle-blowers. After paying $200 million in fines due to one whistle-blower at Nest, the company now encourages employees to air their frustrations by talking to management before talking to the press. What are some consequences that employees can face from whistle-blowing? What government measures have been put in place that provide protection to whistle-blowers? Copyright ©2019 Cengage. All Rights Reserved. 3 ANSWER: Whistle-blowers may face retaliation and often become unemployed. In addition, not everyone sees whistle-blowing as a positive decision; rather, you may be looked at as a “snitch.” The Sarbanes–Oxley (SOX) Act protects whistle-blowers employed in publicly traded companies. The law encourages whistle-blowing by motivating publicly held companies to promote a more open culture that is sympathetic to employees who have a “reasonable belief ” that a law has been violated. Federal employees are covered by the federal Whistleblower Protection Act (WPA). The Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR Act) requires federal agencies to be more accountable for violations of antidiscrimination and whistle-blower protection laws. The False Claims Act (FCA) and Dodd–Frank Wall Street Reform and Consumer Protection Act protect and financially reward whistle-blowers who expose fraud related to governmental programs and wrongdoing related to consumer financial products or services, respectively. OSHA administers the whistle-blowing provisions in 15 federal statutes protecting whistle-blowers in such industries as airline, nuclear power, and public transportation. 13.1 Employee Rights and Privacy Employee rights – Guarantees of fair treatment that become rights when they are granted to employees by the courts, legislatures, or employers Included among those rights are the rights of employees to: Protest unfair disciplinary actions Question genetic testing Have access to their personal files Challenge employer searches and monitoring Be largely free from employer discipline for off-duty conduct Copyright ©2019 Cengage. All Rights Reserved. 4 Figure 13.1: Employee Rights vs. Employer Rights Copyright ©2019 Cengage. All Rights Reserved. Section 13.1a: Employee Rights versus Employer Responsibilities Balanced against employee rights is the employer’s responsibility to pr ...

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In various occupations, workers may be prohibited from exercising certain rights that, outside the workplace, cannot (or, perhaps, should not) be restricted. At the same time, it has been argued that some behaviors may be restricted by some employers, even when the worker is not at work, or their off-duty activity or conduct. This can lead to difficult conflicts between employer and employee, as well as among employees. Here we will look at some restrictions that may be imposed to investigate to which rights restrictions employees can and cannot object. We will begin this discussion by looking at a real-life incident involving employee activity outside of the workplace. In September 2012, a number of paramedics were placed on administrative leave by their employer for working for another company. The company, American Medical Response Incorporated (AMR) of Connecticut, provides emergency medical care (ambulances, paramedic services, etc.). The suspended paramedics were working for another company, Valley Emergency Medical Service (VEMS). AMR argued that suspension was appropriate because the other company was a competitor, both companies having bid on a service contract. The paramedics, in response, argued that being suspended was a violation of their rights, and began preliminary work toward a lawsuit under Connecticut's Unfair Trade Practices Act. What can and cannot any company control about what their employees do when they are not actually at work? AMR argued that the paramedics were aware that they could not work for a competitor; the paramedics claimed that AMR could not legally prevent them from doing so outside of the work they did for AMR. 4.1 The Issue: Restricting Employees' Rights as a Condition of Employment The case involving the AMR employees is one example of the kind of conflict that arises in the workplace. Those who are in positions of management and those who work for management often have very different views of what is justified, in terms of what one can do with one's time off the job. As is so often the case in ethical disputes, few if any would accept the extremes here. For instance, probably no one would argue that salaried employees must do everything their bosses tell them; that would amount to something along the lines of one's boss dictating that worker's life. At the same time, just as few would argue that salaried employees can do whatever they wish, regardless of the effect on the company for which they work. It is in between these extremes that tensions arise, and where the rights of the employers must be weighed against the rights of the employees. At-Will Employment Workers are said to be at-will employees, meaning an employer does not need to show cause for terminating the worker in question, when they are not protected by union contracts, civil service law, or other such provisions. They can be fired for any reason that does not conflict with the law, and the employer is not obligated to show why .

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Competency 7: Ethical Practice S H R M C O M P E T E N C Y M O D E L Definition The ability to integrate core values, integrity, and accountability throughout all organizational and business practices.  Rapport Building  Trust Building  Personal, Professional, and Behavioral Integrity  Professionalism  Credibility  Personal and Professional Courage  Maintains confidentiality  Acts with personal, professional, and behavioral integrity  Responds immediately to all reports of unethical behavior or conflicts of interest  Empowers all employees to report unethical behavior or conflicts of interest without fear of reprisal  Shows consistency between espoused and enacted values  Acknowledges mistakes  Drives the corporate ethical environment  Applies power or authority appropriately  Recognizes personal bias and others’ tendency toward bias, and takes measures to mitigate the influence of bias in business decisions  Maintains appropriate levels of transparency in organizational practices  Ensures that all stakeholder voices are heard  Manages political and social pressures when making decisions Behaviors (These are most typically demonstrated by individuals at the highest level of proficiency on the indicated competency) Proficiencies by Career Level Sub Competencies (competencies related to and/or subsumed by the relevant general competency) ©2012 Society for Human Resource Management  Supports training programs regarding ethical laws, standards, and policies  Demonstrates accountability for actions  Behaves in a manner consistent with the difficult decisions made by management  Identifies potential conflicts of interest  Follows policies consistently  Documents and escalates reports of unethical behavior to management  Maintains employee confidentiality throughout appropriate business processes  Maintains knowledge of internal organizational controls  Maintains awareness of ethics laws, standards, legislation, and trends that may affect organizational HR practice  Supports HR policies, procedures, and guidelines  Establishes one's self as a credible and trustworthy source for employees to voice concerns  Maintains general knowledge of ethical laws, standards, legislation, and trends that may affect organizational HR practice  Reinforces difficult decisions that align with organizational strategies and values  Establishes one's self as a credible resource for all issues involving employees and management  Develops and supports systems for reporting unethical behavior  Enforces policies consistently  Establishes one's self as a credible and trustworthy source for employees to voice concerns  Influences others to behave in an ethical manner  Performs as an ethical role model and positively influences managerial integrity and accountability  Implements training programs.

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Agency and Labor Law The Principal’s Liability on the Contract Assignment Crash agrees to have Steve represent him in various transactions as an agent to secure him performance contracts and endorsement deals. Crash writes a letter to Bob that Steve is his agent. Unbeknownst to Bob, Crash specifically instructed Steve to only make endorsement deals with Bob. However, Steve signs a contract for Crash to attend a birthday party performance. In all other cases, Steve has express authority to enter into any contract on behalf of Crash. So Steve makes a contract with Jimmy for a performance at a bar. Jimmy knows Steve is an agent, but he doesn’t know who Steve is an agent for. Finally, Steve makes an endorsement contract with Fred. Fred has no idea whether Steve is representing anyone. Is Crash liable for any of these contracts? Is Steve liable for any of these contracts? The requirements below must be met for your paper to be accepted and graded: NO PLAGARISM!!!!!!!!!!! Write between 500 – 750 words (approximately 2 – 3 pages) using Microsoft Word. Attempt APA style, see example below. Use font size 12 and 1” margins. Include cover page and reference page. At least 60% of your paper must be original content/writing. No more than 40% of your content/information may come from references. Use at least two references from outside the course material, preferably from EBSCOhost. Text book, lectures, and other materials in the course may be used, but are not counted toward the two reference requirement. NOTES Business Law II Agency This lecture will cover the law concerning agency. In a principal-agent relationship, the parties have agreed that the agent will act on behalf and instead of the principal in doing business with third persons. This has some profound consequences, as this will make the principal liable for contracts entered into by the agent and for misdeeds of the agent in many situations. Nonetheless, principal-agent relationships are very common. For example, the employer-employee relationship is one example of such a relationship as is the employer-independent contractor relationship. The significant distinction between these two relationships is the amount of control the principal exercises over the agent in the course of the agent’s duties. And although these two types of principal-agent relationship seem similar, the consequences stemming from each classification are very significant. These consequences include the principal’s liability for the torts of the agent and the principal’s legal obligations toward the agent. For example, the doctrine of respondeat superior will hold the principal liable for torts committed by the agent in most situations. However, it does not apply in the independent contractor situation. These relationships can be formed in various ways. However, all these relationships require an affirmative indication that the agent agrees to act for the principal and the principal agrees to have the agent .

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