INTRODUCTION Today, everyone seems to have rights. That is, everyone except the employer. This phenomenon appears especially true when an employer considers her/his role in personnel management. Managerial tasks involving employee selection, performance evaluation, compensation, promotion, and discipline may be viewed by pharmacy employers as prominent issues for confrontation on a legal battleground.
What are the rights that employees have? What defenses, if any, do employers have? Are employers totally at the mercy of their employees?
Within this lesson, we will examine the federal legal arena of personnel management and consider several federal mandates applicable to employment practices. PERSONNEL MANAGEMENT AND FEDERAL MANDATES Personnel management includes the utilization of activities, programs, and policies for the purpose of acquiring, retaining, and discharging employees. In essence, personnel management includes all aspects of an employer's dealings with her/his employees.
Federal statutes addressing personnel management issues include:
the Equal Pay Act
the Age Discrimination in Employment Act, and
the Americans With Disabilities Act
Each of these statutes will be considered separately. TITLE VII
Title VII is a federal statute that applies to and sets forth constitutionally protected classes as they pertain to employment. Those protected classes as designated in Title VII are: religion, national origin, race or color, and gender.
The central theme of the statute is to enhance employment opportunities. Title VII is applicable to all U.S. citizens and aliens employed either within the United States or outside of the United States-that is, on foreign soil-by a U.S. corporation.
The reader should realize that Title VII does not prohibit all acts of unfair treatment by an employer against an employee. For Title VII to apply, the unfair act of the employer must be premised on the employee's status as a protected class member. Hence, if the employer's unfair treatment is not because of the employee's protected class membership, the employer's action will not be prohibited by Title VII.
Title VII violations are typically found to exist for three aspects of employment: hiring, promoting, and discharging. An employee can initiate a Title VII claim based on disparate treatment, disparate impact, retaliation, religion, national origin, race or color, or gender. The employer can defend by claiming either the bona fide occupational qualification defense or the seniority defense. Each of these topics will be addressed in the following sections. However, the discussion will begin by defining statutory employers. Additionally, to aid in clarification, employer defenses will be addressed following the discussion of retaliation. Statutory employers
Title VII's mandates do not automatically apply to all employers. Only those who are considered "statutory employers"-those who satisfy the requirements as designated in the statute-are regulated by the statute.
To be considered statutory, an employer must:
have employed 15 employees for 20 weeks during either the current year or the prior year. This includes part-time employees.
be engaged in interstate commerce. Most businesses satisfy this second element.
Additionally, Title VII mandates do not automatically apply to all employees. Only those who are considered "statutory employees" are covered by the statute. There are two methods by which an employee can be deemed a statutory employee. The first involves the amount of control over the employee asserted by the employer. For statutory employees, the employer has control over how the employee performs the work and the result(s) obtained. This can be contrasted with independent contractors, because with independent contractors, the employer has no control over how the work is performed. Also, it should be realized that substance rules over form. …