Legal Approaches to the Employment Relation

1. Legal Approaches to the Employment Relation Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

2. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection Employment Law Employment Discrimination Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

3. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Employment Discrimination • Statutorily Defined • Immutable Characteristics • Race, Gender, Age, or National Origin • Subject to Change • Religion, Alienage, or Marital Status • Sometimes Both • Disability Discrimination Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

4. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Why Employers Differentiate • Rational Reasons • Questionable Reasons • Eccentric but Not Illegal Reasons • Socially/Morally Unacceptable Reasons • Limiting Power of Employer Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

5. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Long history of “employment” and regulation • Feudal systems • Indentured Servitude • Apprenticeships • Slavery • Modern Contract Theories Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

6. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Post-slavery legal treatment of employment relations: Contract Law Tort Law Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

7. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Contract Roots • Freedom of Contract meant less judicial policing • “At Will” Employment Presumed • Absent an express written contract for a term of years, the relationship between an employer and its employees was “at will.” • Why presume “at will”? • Forrer v. Sears, Roebuck & Co. (Wis. 1967) • Permanent = temporary • Terminate for good, bad, or no reason Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

8. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Tort Roots • Employer/Master liability for torts of Employees/Servant • Agency Law Low “Control” = Independent Contractor High “Control” = Servant/Employee Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

9. Overview Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Tort Roots (…Continued) • Employer liability for Employee injury • Theory: Normal tort law applies • Fact: Laws tended to favor employers • Privileges (i.e. Defamation) • Employer immune: • Fellow servant rule • Assumption of risk • Contributory Negligence Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

10. Employee Safety Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Workers’ Compensation Laws • Trade off • More Likely Recovery • Limited Compensation • Exclusivity Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

11. Employee Safety Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Worker’s Compensation Recovery • Medical Expenses: Covered • Lost Wages: ½ - 2/3 Covered • Pain & Suffering: Not Covered • Historically • Employees favored WC • Employers favored tort system • Today • Employees often prefer the tort system • Employers usually prefer WC Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

12. Employee Safety Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Cost of Workers’ Compensation • WC Costs BIG $$$ • Potential Compensation Crisis • But probably lower $$$ than a tort system • Benefit to high cost: • Reduction of hazards • BUT, not as expensive as tort system • Hazards are less likely to be eliminated Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

13. Employee Safety Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Occupational Safety and Health Act (OSHA), 29 U.S.C.S. §§ 651 et seq. • Why compensate when you can prevent? • Government enforcement Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

14. Unionization Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

15. Unionization Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • National Labor Relations Act, 29 U.S.C.S §§ 151 et seq. • NLRB created to: • Protect workers’ “concerted activity for the purpose of mutual aid or protection” • Recognition of Unions • Good faith bargaining required • Economic Warfare regulated Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

16. Unionization Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Collective Bargaining • For wages, hours, other terms and conditions • Especially job security • Layoffs by seniority • “Just cause” restrictions on discharge or discipline of individual workers • Procedural protections Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

17. Unionization Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Union “Density” • Lower % organized in 2005 than 1935 • Employer Resistance • Globalization • Restrictions on union arsenal • Union overreaching resulting in bad PR • Big Exception: the public sector Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

18. Direct Control of Wages Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Early Controls • Child labor – some restrictions • Lochnerism • Adult regulations usually struck down • But see Muller v. Oregon (1908) • Death of Substantive Due Process • Fair Labor Standards Act • Pros: Minimum wage & maximum hour laws • Cons: Artificially reduces labor demand • Retirement Income Security Act • You can catch more flies with tax incentives… Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

19. Protection for Subgroups of Employees Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Civil Service Systems • Probationary: few protections • “Permanent”: Employed during “good behavior” • Academic Tenure • Features: • Procedural Protections for “just cause” • Layoffs only for Financial Exigency • Application: • By statute in PUBLIC education institutions • By contract in PRIVATE institutions Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

20. Constitutional Protections Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Public Sector • Requisite: Property interest in job • Created by statutory right or by contract • Due Process: • Procedural and Substantive • 1st Amendment: • Speech must be of “public concern” • Speech must not be in the course of employment duties • Employer may still discharge if acting reasonably to further its legitimate interests Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

21. Social Security and Insurance Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Social Security • Broad safety net • Financed by employers & employees • Unemployment Insurance • Both employers and employees contribute • Limited benefits and dependent on not being discharged for misconduct Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

22. Privacy Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Constitution • Protects only public sector workers • Statutes, common Law, contract law, and tort law • Apply to both public and private sectors • But not comprehensive • Polygraphs • Wire tapping • Tort claims Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

23. Privacy Overview • Employee Safety • Unionization • Direct Control of Wages and Other Compensation • Protection for Special Groups of Employees • Constitutional Protections • Social Security and Insurance • Privacy • Common Law Protection • Workplace issues • Include • Drug testing • Audio/video monitoring • Email & other electronic monitoring • Handbags and briefcases • Polygraphs • Government Searches: Is there an Expectation of Privacy • If not, no protection • If so, some limits on searches Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

24. Reassessing Contract Law The Reassessment of Contract Law • Oral Contracts • Employer Policies • Promissory Estoppel • Good Faith • Varieties of Job Security • Social Security and Insurance • Privacy • Common Law Protection • “At Will” Metamorphosis • Horace Gay Wood: • “At will” an aid to statutory construction • Post-1877 Courts: • Applied “at will” doctrine as substantive law • Fisher v. Jackson (Conn. 1955) • Promised employment for life = “at will”? • Clear proof required to rebut the “presumption” (e.g., formal contract) Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

25. Reassessing Contract Law The Reassessment of Contract Law • Oral Contracts • Employer Policies • Promissory Estoppel • Good Faith • Varieties of Job Security • Social Security and Insurance • Privacy • Common Law Protection • Problems of early application: promise permanent f employment? I sure do! DEAL!!! The court is glad you agree, but it’s “at will” anyway Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

26. Reassessing Contract Law The Reassessment of Contract Law • Oral Contracts • Employer Policies • Promissory Estoppel • Good Faith • Varieties of Job Security • Social Security and Insurance • Privacy • Common Law Protection • “At Will” Metamorphosis (Continued) • “At will” building blocks: • Presumption of “at will” • Court now considers ACTUAL intent of parties • “Mutuality of Obligation” • Modern contract law – any “consideration” suffices; “adequacy” not relevant • “Additional” consideration required • Inconsistent with modern view of consideration Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

27. Reassessing Contract Law The Reassessment of Contract Law • Oral Contracts • Employer Policies • Promissory Estoppel • Good Faith • Varieties of Job Security • Modern treatments: • Oral contracts may provide some rights • Degree of security? • Factual Issues? • Statute of frauds still a limitation • Employer policy manuals may be binding • A fair reading, creating a reasonable expectation • Promissory estoppel may be available • E.g., Leaving one job on a promise of another • “Good faith” implicit in all contracts? • But good faith ≠ good cause • May be viewed as excluding certain reasons from good cause (e.g., opportunism, personal animosity) Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

28. Reassessing Contract Law The Reassessment of Contract Law • Oral Contracts • Employer Policies • Promissory Estoppel • Good Faith • Varieties of Job Security • Varieties of job security • Just Cause • Individual reasons • E.g., Inadequate performance, misconduct, etc • Systemic reasons • E.g.,Layoffs, reorganization, etc… • Satisfaction • Satisfaction • Subjective • Honest satisfaction • Satisfaction pertaining to performance only • Reasonable satisfaction • Objective Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

29. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Privacy • Exclusivity of Workers’ Compensation • Accidental Injuries • Intentional torts still usually actionable • Intentional infliction of emotional distress • Fraud • Defamation • Intentional interference with contract • Invasion of privacy • Grey Area • Sexual harassment Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

30. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Privacy • Intentional Infliction of Emotional Distress (Outrage) • Abusing position of power • Liable for asserting a legal right impermissibly • Agis v. Howard Johnson Co. (Mass. 1976) Get out! Starting with Abby, Betty, Carol… Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

31. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Privacy • Fraud • Misstatement of material fact • Promise = fact if promisor intends not to honor bargain at the time she promises • Reasonable detrimental reliance Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

32. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Privacy • Defamation (Libel and Slander) • Elements: • A defamatory statement, • made about the plaintiff, • published to a third party; • Truth • Absolute Defense • Privilege • Absolute • Qualified Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

33. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Elements of Intentional Interference: • Existence of a contract • Knowledge of K by a 3rd party • Interference • Lack of justification • Proximately caused damage • 3rd parties • Managers qualify • Co-workers qualify Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

34. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Four distinct privacy torts: • Intrusion on seclusion • Appropriation of a name or likeness • Publicity given to private life • Publicity placing a person in false light Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

35. Reassessing Tort Law The Reassessment of Tort Law • Intentional Infliction of Emotional Distress • Fraud • Defamation • Intentional Interference with Contract • Privacy • The Public Policy Exception • Monge v. Beebe Rubber (N.H. 1974) • Public policy tort has extended to protection from termination for: • Refusal to accept supervisor’s sexual advances • Refusal to violate public health laws • Complying with subpoena • Serving on a jury • Violating a law • Whistleblowing • Exercising a public right Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)