STATE COURT DISPARITY ON EMPLOYMENT AT-WILL

State courts have produced three major exceptions to the employment at-will doctrine: (1) violation of public policy, (2) breach of an implied contract (including written policies, oral promises, and implied covenants of good faith and fair dealing), and (3) commitment of a tort of emotional distress, defamation, or third-party interference with a contractual relationship. We analyzed state appellate court decisions to identify judicial philosophies and to determine which states have accepted or rejected the various exceptions to employment at-will. Our results show that the states vary considerably. The most commonly accepted arguments against employment at-will are violations of public policy, breaches of implied contracts in employee handbooks, and torts of outrageous emotional distress. Overall, this research highlights the need for statewide consistency with regard to the at-will issue.     

What Employment Counselors Need to Know About Employment Discrimination and the Civil Rights Act of 1991

Under Title VII of the Civil Rights Act of 1964 there are two theories of liability for employment discrimination: disparate treatment and disparate impact. While disparate treatment deals with the adverse treatment of a specified employee, disparate impact deals with discrimination against a class of individuals. The Civil Rights Act of 1991 modified the law to allow plaintiffs to more readily bring a discrimination case. This article reviews the major components of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and a proactive approach to using equal opportunity law in employment counseling.     

TRANSITIONAL EMPLOYMENT PROJECT

McLean Hospital is a private, non-profit psychiatric hospital in Massachusetts. It is an extensive treatment facility providing outpatient care, patient hospitalization, and an inpatient bed capacity of 328. The psychiatric modalities used are traditional milieu structuring, individual and group psychotherapy, behavior therapy interventions, family and couples therapy, psychopharmacology, and rehabilitation treatment strategies. As in other psychiatric hospitals, vocational rehabilitation treatment strategies were severely challenged in the 1970s with the Supreme Court decision in the case of Souder versus Brennan. In essence, the findings in this class action suit construed traditional, clinical/vocational programs as forms of employment, not therapy. Thus, the issues of work adjustment and employment preparation for the psychiatrically disabled client needed to be creatively readdressed. Rehabilitation staff were called upon to redefine the activities presented to clients not only from the viewpoint of desired therapeutic interventions but also in terms of the new legal constraints. The shortened length of inpatient hospitalization also highlighted the need for aftercare rehabilitation opportunities. Responding to these needs, the Rehabilitation Services Department of McLean Hospital developed an independent transitional employment corporation called Everywhere Limited.     

Information Integration in Juror Decision Making

Research applying information integration theory to jury decision making has long assumed that people average informational scale values when making legal judgments. Although often consistent with research results, this hypothesis has never been tested in a legal context against a more general additive rule. The present paper describes two studies conducted as a critical test between these two models. Incriminating evidence and eyewitness confidence were varied in a full-factorial, within-subjects design involving a total of 131 subjects acting as mock jurors. Subject responses included eyewitness accuracy and defendant-guilt probability estimates, as well as final verdict decisions. Results strongly support an averaging model of legal decision making. Additional results concerning the influence of initial attitudes and the interrelationships between the variables considered are reported and their implications are discussed.     

The Motivations for and Outcomes of Employee Referrals

Research on employee referrals demonstrates positive outcomes for the recruited individual and the organization. However, little research addressed employees who make employment referrals, also known as employee recommenders. To address this gap in knowledge, we developed a conceptual model and present the theoretical basis for addressing the motivation of, and organizational outcomes associated with, employees who make employment recommendations. The model is based on the theories of word-of-mouth communication, cognitive dissonance, self-perception, and attitude change through self-persuasion. Partial support for the model was found in an experimental design simulating an employee referral situation. Results showed an increase in normative commitment of recommenders.     

Managerial Support for Dual-Career Relocation Dilemmas

This study examined managerial decision making in the context of a dual-career relocation dilemma. Specifically, 143 managers and professionals responded to a memo contained in an in-basket simulation exercise that involved a dual-career employee relocation and corresponding request for spouse employment assistance. Competing theoretical predictions were tested with regard to managerial support for this dual-career work-family situation as a function of the gender of the employee. Findings indicated that managers offered more extensive assistance to the spouse of a female employee than to the spouse of a male employee. A content analysis of decision-makers' responses indicated a wide range of specific responses, with offering multiple forms of assistance being most common (27%), followed by delegating the issue to human resources (22%). The results are discussed in terms of implications for future research on managerial support for work-family and employee mobility. Practical suggestions are outlined.     

Newcomer psychological contracts and employee socialization activities: Does perceived balance in obligations matter?

We sought to determine the extent to which one’s beliefs about the relationship between an employee and an organization at the start of employment influence subsequent socialization activities. The balance of employee exchange relationships, employee perceptions of both their own obligations and the employers’ obligations, were collected from 120 newcomers in a public sector organization on the first day of employment and again three months later. We found the relationship between employee obligations and two socialization activities (time with mentor and time spent in training) depended on the employee’s perceptions of what the employer owed the employee, such that employees in unbalanced relationships tended to engage in more socialization activities than employees in balanced relationships.     

Newcomer psychological contracts and employee socialization activities: Does perceived balance in obligations matter?

We sought to determine the extent to which one’s beliefs about the relationship between an employee and an organization at the start of employment influence subsequent socialization activities. The balance of employee exchange relationships, employee perceptions of both their own obligations and the employers’ obligations, were collected from 120 newcomers in a public sector organization on the first day of employment and again three months later. We found the relationship between employee obligations and two socialization activities (time with mentor and time spent in training) depended on the employee’s perceptions of what the employer owed the employee, such that employees in unbalanced relationships tended to engage in more socialization activities than employees in balanced relationships.     

Noncompetition Agreements: How Informed Are Counselors?

A noncompetition agreement is a contract between employer and employee prohibiting the practice of a trade or profession for a specified time or within a specified region upon an employee's leaving an employer's hire (A. Valiulis, 1985). The authors assessed American Mental Health Counselor Association members' knowledge of the legal bases for these contracts and their agreement with the legal opinions and also assessed the degree of similarity and dissimilarity between members' knowledge of and agreement with the legal opinions. Results showed that counselors are better prepared to look after the welfare of their clients than their own employment interests. Implications for counselor training are discussed.     

Recruiting through advertising or employee referrals: Costs,yields, and the effects of geographic focus

Research on recruiting has generally considered the effects of recruiting source on employee tenure or performance, and has argued that formal employment ads are inferior to informal sources, notably employee referrals. We test two dimensions for evaluating the effects of recruiting sources on the recruiting process—cost per new hire and yield ratio. We also suggest a new dimension for distinguishing between different types of employment ads—geographical focus—which we define as the clarity and distinctiveness of the labour market that an ad is likely to reach. Geographically focused ads are shown to cost less and yield more appropriate applicants than unfocused ads. Considering the cost, yield, and focus of ads can promote the effectiveness of recruiting processes. The study therefore has both practical applications and implications for further research on recruiting sources.     

Legal Risk in Selection: An Analysis of Processes and Tools

Purpose

This paper reviews a decade of employment litigation to illuminate the most legally dangerous selection devices and employment practices.

Design/Methodology/Approach

A sample (n = 312) of court cases drawn from 10 years of Bloomberg BNA case briefs was analyzed to determine which selection tools (e.g., biographical information blank, interview, cognitive ability test, and psychomotor test) and which selection processes (e.g., violations of the four-fifths rule, administrative inconsistencies, lack of documentation, failure to provide accommodations) are most at risk for litigation for unfair employment practices.

Findings

Results demonstrate that while some selection tools do attract legal scrutiny, dangerous hiring practices such as favoritism against protected classes and improper human resource documentation put employers at far greater risk of suit. When considering cases settled outside of court and those that continued to trial, the data reveal that employers lose employment discrimination cases at a rate nearing 90 % and suffer an average payout of over $1.5 million per case.

Implications

Just as legal challenges once drove the search for selection tools free of adverse impact, the current legal landscape demonstrates the necessity of fair and consistent selection processes. This paper provides evidence of common mistakes in implementing selection systems—mistakes that lead to costly legal battles.

Originality/Value

This paper reduces cumbersome legal records into useful evidence of trends in recent employment law cases. Selection system designers and organizations who implement them will benefit from avoiding the risky hiring practices presented in this paper.     

包容型氛围感知对员工建言的影响：心理安全感与惰性感知的双重路径

基于社会信息加工理论视角,通过对816名员工与其直接上级进行两时间点配对取样,探讨包容型氛围感知对员工建言的影响,以及心理安全感与惰性感知在两者关系中的作用机制。研究结果表明：员工包容型氛围感知对其建言行为起到促进作用,并通过心理安全感与惰性感知间接影响建言行为。研究结果不仅从理论上丰富与拓展了包容型氛围的效应研究,同时对实务界管理员工建言有一定的实践启示。     

Malpractice arising from negligent psychotherapy: ethical, legal, and clinical implications of Osheroff v. Chestnut Lodge

Traditionally, there have been few legal actions brought against psychotherapists that allege negligent psychotherapy and negligent treatment of psychiatric disorders. However, in the case of Osheroff v. Chestnut Lodge, a patient-physician (Dr. Osheroff) sued Chestnut Lodge, a private psychiatric facility, for negligence based on the staff's decision to apply a psychodynamic model of treatment (through psychotherapy) and not a biological model. The case sparked a heated debate between adherents of the psychodynamic model and those of the biological model. This article explores the implications of the Osheroff litigation for mental health professionals. It is proposed that an interactive informed consent process be used to protect psychotherapists against Osheroff-type litigation.     

Retracted: The Indirect Relationship Between Learning Climate and Employees’ Creativity and Adaptivity: The Role of Employee Engagement

This study examines the indirect relationship between learning climate and employees’ creativity and adaptivity. Utilizing multi‐level modeling analysis techniques and data from a sample of 625 employees from 12 different organizations in Israel, we tested the proposed relationship as mediated by employee engagement and moderated by sector of employment (business versus public). Results were generally consistent with the hypothesized conceptual model in that we found the indirect relationship between learning climate and employees’ creativity and adaptivity to be mediated by employee engagement. In addition, we found that this mediation through engagement is moderated by sector of employment. We conclude that the relationship between learning climate and employee performance behaviors is more complex than previously argued in the learning climate literature. Implications for theory and practice are discussed. This article is protected by copyright. All rights reserved     

TO LEAD, LAG, OR MATCH: ESTIMATING THE FINANCIAL IMPACT OF PAY LEVEL POLICIES

In this study, the Boudreau and Berger (1985a) retention/acquisition model is modified in order to develop a utility model that can be used to assess the impact of alternative pay level policies. This paper then demonstrates how the model could be used to assess the financial impact of alternative pay level policies for an organization whose current policy is to match the market. In demonstrating this, estimates of the effect of pay level on employee and applicant behaviors are presented. The utility model is then used to translate these effects into financial terms and compare them against the wage costs associated with alternative pay level policies. Finally, break-even analysis is used to suggest how decision makers might use utility results when making decisions about pay level policy. The implications for pay level policy and the role of utility analysis in compensation decision making are discussed.     

Mental capacity and the applied phenomenology of judgement

We undertake to bring a phenomenological perspective to bear on a challenge of contemporary law and clinical practice. In a wide variety of contexts, legal and medical professionals are called upon to assess the competence or capacity of an individual to exercise her own judgement in making a decision for herself. We focus on decisions regarding consent to or refusal of medical treatment and contrast a widely recognised clinical instrument, the MacCAT-T, with a more phenomenologically informed approach. While the MacCAT-T focuses attention on individual cognitive performance criteria, an approach oriented by second-person phenomenology brings into view the complex role of time, others and identity in constituting the capacity for individual autonomous judgement. Our phenomenological analysis has consequences both for the practice of capacity assessments and for further research in this arena. Good practice in capacity assessment must attend to decision communities, distributed capacity, and temporal competence, while research on mental capacity will miss the phenomenon if it trains its focus ‘between the ears.’ We illustrate our approach by considering two recent cases of contested capacity: one involving cognitive disability in a dysfunctional decision community, the second presenting the possibility of competent decision-making under conditions of paranoid schizophrenia.     

WEIGHT-BASED DISCRIMINATION IN EMPLOYMENT: PSYCHOLOGICAL AND LEGAL ASPECTS

This article takes an interdisciplinary approach to the issue of weight-based discrimination in employment, drawing on diverse literatures (psychology, law, sociology, economics), and integrating a review of empirical research and a traditional legal analysis. First, empirical research that focuses on the extent of bias against overweight individuals in employment contexts is reviewed and evaluated. Second, current legal requirements relevant to weight-based discrimination in employment are identified and discussed, and those requirements are applied to the research findings to assess the extent to which the weight-based bias identified in the reviewed studies involves illegal discrimination. Third, based on the results of the review of the research and legal literatures, future research directions are offered and practical implications for employers and policy makers are identified.     

A neural cognitive model of argumentation with application to legal inference and decision making

Formal models of argumentation have been investigated in several areas, from multi-agent systems and artificial intelligence (AI) to decision making, philosophy and law. In artificial intelligence, logic-based models have been the standard for the representation of argumentative reasoning. More recently, the standard logic-based models have been shown equivalent to standard connectionist models. This has created a new line of research where (i) neural networks can be used as a parallel computational model for argumentation and (ii) neural networks can be used to combine argumentation, quantitative reasoning and statistical learning. At the same time, non-standard logic models of argumentation started to emerge. In this paper, we propose a connectionist cognitive model of argumentation that accounts for both standard and non-standard forms of argumentation. The model is shown to be an adequate framework for dealing with standard and non-standard argumentation, including joint-attacks, argument support, ordered attacks, disjunctive attacks, meta-level attacks, self-defeating attacks, argument accrual and uncertainty. We show that the neural cognitive approach offers an adequate way of modelling all of these different aspects of argumentation. We have applied the framework to the modelling of a public prosecution charging decision as part of a real legal decision making case study containing many of the above aspects of argumentation. The results show that the model can be a useful tool in the analysis of legal decision making, including the analysis of what-if questions and the analysis of alternative conclusions. The approach opens up two new perspectives in the short-term: the use of neural networks for computing prevailing arguments efficiently through the propagation in parallel of neuronal activations, and the use of the same networks to evolve the structure of the argumentation network through learning (e.g. to learn the strength of arguments from data).     

Perceived Job Discrimination: Toward a model of applicant propensity to case initiation in selection

This paper develops and proposes the novel concept of perceived job discrimination (PJD) and a conceptual model of applicant propensity to case initiation (APCI) in employee selection. Distinguishing PJD from actual job discrimination (AJD) as traditionally viewed in selection, this paper puts forward a definition of PJD that emphasizes perceived unfair treatment and violations of the (pre‐)employment psychological contract. Differences between AJD and PJD are highlighted and a number of crucial situational features and measurement imperatives noted for PJD to be deemed to have occurred. Extending this construct, a detailed model of APCI is proposed specifying the key inputs, processes, and outcomes of applicant complaint and case initiation for unfair discrimination. Both concepts are argued to be relevant regardless of country‐specific legal requirements governing AJD. Future directions for research and selection practices in both PJD and APCI are noted throughout the paper.     

知识密集型组织的雇佣关系民主治理和员工创造力研究

本文探讨了雇佣关系民主治理对员工创造力影响的中介机制和边界条件,并利用跨层次的调查数据进行实证研究。研究结果发现:(1)雇佣关系民主治理显著正向影响员工创造力;(2)内在动机在雇佣关系民主治理与员工创造力间起部分中介作用;(3)组织知识密集度对雇佣关系民主治理与员工内在动机的正向关系间有着显著强化作用;(4)雇佣关系民主治理和组织知识密集度的交互作用通过内在动机的中介作用,进而影响员工创造力。