The employment relationship is a contractual one between an employer and a worker. The worker may be either an employee or an independent contractor. Distinguishing between the two is very important. It has an effect on compensation, benefits, harassment, family leave, workers’ compensation, unemployment insurance, and discrimination, (Moran, 2008, p. 3). In an employment relationship, authority is conveyed by an employer to an employee. Deciding what kinds of authority and how much authority to grant are important issues for employers to resolve, (Moran, 2008, p. 3). Inherent in every employment relationship is the employee’s duties of loyalty and good faith and the employer’s duties to compensate and maintain a safe working environment. Violations of these duties give rise to contractual and tort liability. A contract is a legally enforceable agreement. A tort is a private civil wrong. Tort liability encompasses assault and battery, defamation, invasion of privacy, and negligence. The key to an employer’s responsibility is whether the tort was committed within the scope of employment—in other words, “on the job,” (Moran, 2008, p. 3) Employers may attempt to employ restrictive covenants, also known as noncompete or nondisclosure agreements. These agreements are used to protect the employer’s business against theft of trade secrets, stealing clients, and competing against the former employer. Courts generally do not like to restrict people from working, but the courts will enforce these agreements where they are voluntarily signed and designed to protect the business from unfair competition, (Moran, 2008, p. 3). The purpose of recruitment and selection is to obtain the best possible workers for a business. “Discrimination is permissible with respect to selecting candidates based on interpersonal relations, communication skills, training, and education. It is not permissible with respect to suspect classifications such as race, religion, gender, age, disability, and national origin,” (Moran, 2008, p. 37). Because employees are valuable assets to a business, employers must be able to choose those employees who will perform the best work for the business. Education, training, communication skills, and interpersonal relations are key qualities that employees must possess to help a business be more successful, (Moran, 2008, p. 37). The easiest way to discriminate against individuals is to do so in the recruitment and selection process. Employers may use a myriad of methods to evaluate an individual and his or her particular traits. Testing, interviews, writing samples, demonstrations, and role-playing are a few examples, (Moran, 2008, p. 37). If these methods are job-related, then the employer has every right to use them. “What an employer may not do is discourage potential candidates who belong to a particular suspect classification as defined by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act,” (Moran, 2008, p. 37). The selection process has become a complicated procedure for employers, (Moran, 2008, p. 67). They must carefully choose questions based on job qualifications. They risk litigation if they ask inappropriate questions that can be inferred as being discriminatory. Employers must recruit from a diverse pool of candidates. Employers must keep accurate records of these candidates, such as who applied and who was hired. Employers must establish job-related criteria necessary for promotions. “Employers must perform background checks on employees to guard themselves against negligent hiring, but these checks are limited to activities or criminal convictions that are job related,” (Moran, 2008, p. 67). Policies with regard to nepotism and promoting from within should also be drafted by the employer. The selection process is a daunting but necessary undertaking for the employer. As most of us...
References: Moran, John Jude. (2008). Employment Law (4th ed.). Upper Saddle River, New
Jersey: Pearson Education, Inc.
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