This paper examines selected employment laws – namely exceptions to employment at will, The Uniformed Services Employment and Reemployment Rights Act (USERRA) and Immigration Reform and Control Act (IRCA) – and how they impact the functions of human resources.
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Employment at will and exceptions
In all states but Montana that protects employers who have completed a probationary period, employers can discharge their employees without cause or change the terms of employment as they deem fit (Nyce and Bodenner, 2016). Employees can also leave employment at their own discretion. This is known as employment at will. Terms of employment that can be changed when the employer has the right to exercise employment at will include reduction of salaries or wages, altering employee benefits, changing working hours and schedule or changing the job content and responsibilities. Indeed most companies state that they employ “at-will”.
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However there are exceptions to employment at will that protect employees from being discharged or having their employment terms changed at the employer’s discretion. Exceptions to employment at will include federal and state laws, collective bargaining agreements through unions and associations, employment contracts in certain industries and organizations, implied contracts usually derived from employer handbook, public policy of most states, statutory protections against discrimination and covenant of good faith and fair dealing (Nyce and Bodenner, 2016). There is also recourse for employees who feel that their employers have treated them unjustly even in situations where the employer has the right to exercise employment at will. This recourse may be within the company itself or through the state and federal justice systems.
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The exception to employment at will that has had the most impact in the private sector is implied contract. Because of frequent staff layoffs and high incidences of job turnover, employers and employees frequently contest the implied existence of contracts for the job. Yet, in implied contract, there is no written instrument to depict the employment relationship and to guarantee job security. Hence, implied contract is subject to various definitions and can depend on length of employment, oral assurances and handbooks; factors that are hard to prove as depicted in the 1980 court case of Charles Toussaint versus Blue Cross & Blue Shield of Michigan in the Michigan Supreme Court (Muhl, 2001).
Impacts of USERRA
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the rights to civilian jobs and benefits for veterans, reservists and individuals in responding to national emergencies. This federal law “prohibits employers from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services” (HR Hero, undated). USERRA improves protection of the rights and benefits of service members through clarifying the Veterans’ Reemployment Rights (VRR) Statute and enhancing its enforcement by the Department of Labor and the Veterans Employment and Training Service. It also includes federal government employees in the department’s assistance in processing noncompliance claims.
One positive impact of USERRA is that it ensures individuals who leave their jobs to serve in the military can return to their jobs upon successful completion of the military service. This promotes morale and motivation at the workplace (Guerin and Barreiro, 2011). The company is also able to retain top talent as well as reemploy experienced staff.
Further, the law ensures protection of rights and liberties at the workplace by discouraging discrimination of people applying for military service, who are in active national service or who have completed their service (Nyce and Bodenner, 2016). USERRA is one of the laws, including the constitution, which promotes rights and equality at the workplace.
However, USERRA has also had negative impacts. One drawback is that organizations that have had their employees enlisting are not able to effectively plan for their employment needs, at least for the next five years (Guerin and Barreiro, 2011). This is because of the uncertainty of whether to fill the positions left vacant through employment recruitment and development or to leave the positions vacant waiting for the individuals to return from military leave. If not well-managed, this negatively impacts on the organization’s Return on Investment (ROI).
Employee career-path management is also disrupted with the company unable to manage the employee’s skills, knowledge and experience. The returning employee may not have acquired skills that are congruent with their job requirements yet the company has to grant them all backdated benefits including promotion and or impart the necessary skills. This may affect the performance of the company. Moreover, that the company is obliged to grant the employee all the benefits under the “Elevator Principle” directly impacts on the profitability since these are unearned and or unplanned benefits, from the company’s perspective.
IRCA and recommended changes
The federal law Immigration Reform and Control Act (IRCA) controls employment of foreign workers in the United States. The law that was enacted on November 6, 1986, defines the workers that can be legally hired and shows how the legality of the workers can be verified (Walsh, 2015). According to IRCA, employers must verify the immigration status of their employees. The law stipulates that an employer should not knowingly hire an illegal immigrant. IRCA also protects job applicants from discrimination on the basis of national origin or citizenship.
Nonetheless, there are employers who knowingly hire illegal foreign workers whilst paying them low wages because of the perceived risks (Nyce and Bodenner, 2016). On the pretext of enforcing the IRCA law, some employers also discriminate applicants based on national origin and citizenship. These malpractices are encouraged by the mild penalties imposed on employers who contravene the IRCA law. Hence, an important change that can be made to IRCA is stricter enforcement through imposition of stiffer penalties to those who violate the IRCA law. This will discourage employers from knowingly hiring illegal foreign workers as well as illegal immigration.
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