Share
Explore BrainMass

Questions for employment law

1) Under what circumstances is it legal, advisable, and/or ethical to engage in the following practices:
a) Require pre-offer medical examinations of some applicants and not others?
b) Require post-offer, pre-employment medical examinations of some applicants and not others?
c) Retain information generated by medical and pre-employment testing in each applicant's general personnel file?

2) Does the NLRB provide an appropriate mechanism for union action oversight? Why or why not?

3) Are the rights of white males protected under affirmative action? Why or why not?

4) Does affirmative action require meeting of quotas? Why or why not?

5) Is it appropriate to conduct a pre-employment physical? If so, when?

6) How can employers ensure that their performance evaluation process is non-discriminatory?

Solution Preview

1) Under what circumstances is it legal, advisable, and/or ethical to engage in the following practices:
a) Require pre-offer medical examinations of some applicants and not others?
No. There cannot be pre-offer medical examinations of any applicant. All applicants must be required to take a physical exam if there is a post-offer pre-employment examination. This is the ADA requirement.
In addition, the law prohibit not only employment discrimination but also inquiries, whether verbal or by a document, on a pre-hire basis into certain areas. The prohibited questions are those which will naturally produce information regarding an applicant's race, color, religion, national origin, sex, age, height, weight, marital status or disability.
b) Require post-offer, pre-employment medical examinations of some applicants and not others?
No, the ADA prohibits post-offer, pre-employment medical examination for some applicants. All applicants must be examined.
The employer should review its policies and practices to determine if it is properly utilizing pre-employment physicals. An employer may require a medical examination only after it makes an employment offer to a job applicant and prior to the commencement of employment duties. An offer of employment may be conditioned on the results of the examination only if all employees entering in the same job category are requested to undergo an examination regardless of disability and, with limited exceptions, the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and treated confidentially.
The employment provisions of title I of the ADA are enforced under the same procedures applicable to race, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964. Complaints regarding actions that occur on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Remedies may include hiring, reinstatement, back pay, court orders to stop discrimination, and reasonable accommodation. Compensatory damages may be awarded for actual monetary losses and for future monetary losses, mental anguish, and inconvenience. Punitive damages may be available as well, if an employer acts with malice or reckless indifference. Attorney's fees may also be awarded.

c) Retain information generated by medical and pre-employment testing in each applicant's general personnel file?
No, the information obtained from the exam must be maintained in a separate medical file and should be kept confidential. Generally speaking, no. The ADA prohibits employers from requiring pre-employment physical examinations. After offering an applicant a job, however, an employer may require the applicant to successfully undergo a physical exam under certain conditions:
1. All employees must be required to take a physical exam;
2. Information obtained from the exam must be maintained in a separate medical file and kept confidential;
3. The employer cannot use the information to discriminate against the employee because of a disability.

2) Does the NLRB provide an appropriate mechanism for union action oversight? Why or why not?
No the NLRB does not provide an appropriate mechanism for union action oversight because it cannot dictate anything at the negotiation table. The powers and the requirements of NLRB are limited to those that are mentioned below.
The NLRB's power is not omnipotent. It cannot, for example, order an employer to make concessions at the bargaining table, make violating the NLRA a crime or adjudicate issues outside a six-month statute of limitations. The best way for an employer to minimize exposure to adverse rulings by the NLRB is to conduct its employer/employee/union relations in such a fashion that violations will be minimized. This does not mean an employer must give up its right to manage its business. In fact, management has a duty to its stakeholders not to abdicate its duty to the union or anyone else. Simply put, the employer's duty to ...

Solution Summary

Questions for employment law are embedded with resources to validate.

$2.19