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Employment Law: Negotiating Dynamic Issues

Introduction I have been teaching for the American Management Association (AMA) for 27 years. One of my key courses is Employment Law along with Negotiation. On the surface, one might think of employment law as boring, but in actuality employment law is exciting and dynamic. I do my best to bring this dynamism to the teaching of this course.

Negotiation plays a major role in all aspects of employment laws. One finds negotiation in creating employments laws, regulations, hiring practices, conflicts, and departures.


For example, during the last teaching of this course, we had an animated discussion of employers mandating COVID-19 vaccinations. The overall conclusion was “yes” with certain exceptions. Most folks had forgotten that public schools have been requiring up to 12 times of vaccinations before entering. These vaccinations even included mumps and measles, let alone polio and diphtheria.


Of course, there are vaccination exceptions such as health conditions or religious concerns.

I used skill practices, roleplays, pictures, court cases, examples and quizzes to make the course exciting.

This blog entry will focus on several employment law questions that are posed in a quiz to participants. Often there is no set answer to these questions, but instead the questions provoke an animated discussion.


Question #1: What percentage of hiring managers said they would hold poor spelling and grammar against candidates?


Response: Most class participants will hesitantly reply "yes."

I understand why there would be hesitancy since on one hand this seems important. On the other hand, is it too nit-picky?


In actuality, 70% of those interviewed declared they would toss the candidate’s application because of poor spelling and/or poor grammar. Some say with all the technical assistance on applications, it is irresponsible to have poor grammar or spelling.


There is an age divide between the hirers. The older the hirer is the more likely this will be a vital issue. Younger hirers will cite social media such as Facebook or texting that does not conform to excellent grammar and spelling.


The Undercover Recruiter lists 5 reasons why the hiree should pay attention to grammar and spelling:


  • First impressions count.

  • Written communication is vital to most jobs.

  • Poor writing creates an impression that the hiree does not care.

  • The hiree becomes a sitting duck. That is, the victim of quick weeding.

  • The Horn Effect goes into motion. What is this?


From the Undercover Recruiter:


“The horn effect is a powerful psychological curiosity in which if a person seems particularly lacking in one trait, then that person will often be assumed to be deficient in many others. For instance, people will consistently rate those who are less ‘attractive’ as less kind and funny than their more attractive counterparts, despite there being no evidence of this. Likewise, your poor spelling and grammar will mean employers will underestimate your other abilities too. While you may have outstanding achievements and incredible qualifications, spelling and grammar mistakes will cast a grey shadow over everything else. Unfair, yes, but true!”


Question #2: Is language discrimination illegal, and if so, which federal laws cover language discrimination?


Response: Most participants had not heard of language discrimination so they were at a loss to respond.


Language discrimination does exist and may be a subset of national origin discrimination. If an employer does have language restrictions or instruction, they should be linked to the job. For example, if a bus driver drives a route that serves primarily the Latino population, requiring the driver to speak Spanish might make sense. Maybe an Ethiopian restaurant in a large city caters primarily to Ethiopians who speak the official language Amharic, so this language might be requested of the serving staff.


According to WorkplaceFairness.org


"Title VII of the Civil Rights Act of 1964 are federal laws that protect individuals from discrimination based upon national origin and race. Some courts and government agencies have said that discrimination based on language is a form of national origin discrimination because primary language is closely related to the place a person comes from. So if you are being discriminated against for using your native language, or because of characteristics having to do with that language, it may be considered the same as if you were being discriminated against because of your national origin. This area of the law is still developing."


Question #3: How many states ban access to workers’ social media accounts? Name several.


Response: Participants know that this is a growing trend and wished their jurisdiction had such a ban.


At least 18 states have passed social media employment laws. These states include Louisiana, New Hampshire, Wisconsin, Rhode Island, and Tennessee. Twenty-eight other states are considering such. Maryland was the first state to pass such a law in 2012.


According to SHRM:


"The laws that states are passing prohibit employers from asking job candidates and current employees for their login information, including passwords, to those social media sites. Such sites can show how job candidates behave online or what employees have shared when they think no one who matters is reading.


Experts say that for a number of reasons, it’s not a best practice to either ask for personal login information or read anyone’s private social media postings with or without their knowledge."


The major problem with employment social media snooping is context. The snooper might not know the full history or story.


Another important issue is that the snooper or reader may learn information about the employee’s protected category or personal family or medical information.


Question #4: What jurisdictions allow people to designate “X” as their non-binary designation on drivers licenses instead of male or female.


Response: Most participants did not know this was possible.


In the United States, employers initially use drivers licenses as the key identification tool. Some states are now allowing drivers to mark their gender with “X.” Seventeen states include New Jersey, Colorado, California, New York, Washington, Arkansas, Connecticut, Hawaii, and the District of Columbia. Some courts such as in Utah have ordered such designation on driver’s license.



“Driver’s license policies govern the process by which a person can change the gender marker on their driver’s license. Many transgender people choose to update the gender marker on their identity documents so that it matches their gender identity. Accurate and consistent gender markers on identity documents helps transgender people gain access to public spaces and resources, as well as dramatically reducing the risk they will face violence, discrimination, or harassment. Additionally, states may allow individuals to identify as something other than male or female on their driver's licenses. The ease of the process to change gender markers is independent of how many gender options (i.e., male, female, non-binary) are available.


Conclusion

Employment law is dynamic. Federal, state and local governments are constantly changing their laws and often are not updating their old laws. One of the best ways to keep up to date is using the website of SHRM. (Society of Human Resources Management).


Resources:

American Management Association


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