CHAPTER 28

1. CHAPTER 28 Employment Law

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3. Quote of the Day “I wouldn’t want to live unless I could work for a living.” -- Erle Stanley Gardner mystery writer, creator of Perry Mason

4. History of Employment Law • In pre-industrial society, most people followed their parents’ occupations. • Employers knew their workers and expectations were understood. • With the industrial revolution came changes in employment law too, and a trend toward employment contracts. • Without a contract, a worker was an employee at will. • An employee at will can be fired for a good reason, a bad reason or no reason at all.

5. National Labor Relations Act • NLRA (or the Wagner Act): • Created the National Labor Relations Board to enforce labor laws, • Prohibits employers from penalizing workers who engage in union activity (for example, joining a preexisting union or forming a new one); and • Requires employers to “bargain in good faith” with unions.

6. Family and Medical Leave Act (FMLA) • In 1993, Congress passed the Family and Medical Leave Act (FMLA), which guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or medical emergencies for themselves or a family member.

7. Consolidated Omnibus Budget Reconciliation Act (better known as COBRA) • This act requires employers to allow former employees to continue their health insurance coverage (at the employee’s expense, up to 102% of the cost of insurance) for up to 18 months after termination of employment.

8. Wrongful Discharge • Wrongful discharge prohibits an employer from firing a worker for a bad reason. • The public policy rule prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities, such as: • Refusing to Violate the Law • Exercising a Legal Right • Performing a Legal Duty (like jury duty)

9. Contract Law • Truth in Hiring • Oral promises made during the hiring process can be enforceable. • Employers may be liable for promises that they cannot keep. • An employee handbook can create a contract. • Covenant of Good Faith & Fair Dealing • In some cases, courts will imply a covenant of good faith and fair dealing in an at-will employment contract.

10. Tort Law -- Defamation • Employers may be liable for defamation when they give false and unfavorable references about a former employee. • More than half of the states, however, recognize a qualified privilege (protection unless the statement is known false or given in ill will) for employers who give references about former employees. • If a former employee is potentially dangerous, an employer may have an obligation to disclose this information.

11. Tort Law -- Intentional Infliction of Emotional Distress • Employers who condone cruel treatment of their workers face liability under the tort of intentional infliction of emotional distress.

12. Whistleblowers • Employees who disclose illegal behavior of their employers. • They are protected in these situations: • Wrongdoing by government contractors • Government employees speaking out on a matter of public concern • Federal employees reporting illegal federal activity • Providing evidence of fraud to investigators • Reporting illegal activity related to their own jobs • (Sometimes) reporting a co-worker’s illegal activities

13. Workplace Safety • In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions. • Sets specific health and safety standards. • Obliges employers to keep workplace “free from recognized hazards.” • Requires records of all injuries and accidents. • Allows inspection of workplaces and fines for unsafe conditions.

14. Employee Privacy • In many places, off-duty conduct cannot be regulated by the employer. • Alcohol and drug testing is allowed by private businesses; government employees may be tested if signs of use are seen or if job safety is an issue. • Employers may not require or even suggest the use of lie detector tests, except in investigations of crimes.

15. Electronic Monitoring of the Workplace • The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor workers’ telephone calls and e-mail messages if: • the employee consents, • the monitoring occurs in the ordinary course of business, or • in the case of e-mail, the employer provides the e-mail system.

16. Financial Protection • Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages and limits child labor. • Workers’ Compensation • Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work.

17. Financial Protection (cont’d) • Social Security • Social Security system pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers. • Pension Benefits • In 1974, Congress passed the Employee Retirement Income Security Act (ERISA) to protect workers covered by private pension plans.

18. Employment Discrimination • Under the Equal Pay Act of 1963, an employee may not be paid a lesser rate (for equal work) than opposite sex employees. • Title VII of the Civil Rights Act of 1964 • Prohibits employers from discriminating on the basis of sex, race, color, religion, or national origin. • Color and race are not the same…but both are protected traits • Employers must make reasonable accommodation for a worker’s religious beliefs unless the request would cause undue hardship for the business. • Affirmative action is not required by Title VII, nor is it prohibited.

19. Proof of Discrimination • Plaintiffs in Title VII cases can prove discrimination in one of two ways: • Disparate Treatment – the plaintiff must show that she was actually treated differently because of her sex, race, color, religion or national origin. • Disparate Impact – the plaintiff must show that a rule, although not discriminatory in itself, has an impact in practice that excludes too many people.

20. Defenses to Charges of Discrimination • There are three possible defenses for a charge of discrimination: • Merit • Seniority • Bona Fide Occupational Qualification

21. Affirmative Action • Affirmative Action is neither required nor prohibited by Title VII. • 3 sources of affirmative action programs: • Court-ordered programs to remedy past discrimination • Voluntary programs • Programs designed to comply with the requirement that government contractors be non-discriminatory

22. Sexual Harassment • Involves unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. • Quid Pro Quo – means “one thing in return for another;” involves making any aspect of job contingent on sexual activity. • Hostile Work Environment– when sexual innuendo is so pervasive that it interferes with an employee’s ability to do her (or his!) job. • Pregnancy • An employer may not fire or refuse to hire a woman just because she is pregnant.

23. Age Discrimination • The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against employees or job applicants who are at least 40 years old.

24. Americans with Disabilities Act • A disabled person is someone with a physical or mental impairment that substantially limits a major life activity, or someone who is regarded as having such an impairment. • An employer may not disqualify a job applicant or employee because of disability as long as she can, with reasonable accommodation (would not create undue hardship) perform the essential functions of the job.

25. Americans with Disabilities Act • An employer may not ask about disabilities before making a job offer. • After a job offer has been made, an employer may require a medical test, but it must be related to the functions of the job. • An employer may not discriminate against someone because of his relationship with a disabled person.

26. “Employment law is an important -- and difficult -- area of law to study. It affects almost everyone and it is changing rapidly.”