David Walsh
EMPLOYMENT LAW FOR
HUMAN RESOURCE
PRACTICE, 5E
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license
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Overview of Employment Law
Chapter 1
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service or otherwise on a password-protected website for classroom use.
Chapter Outline (1 of 2)
Heard at the Staff Meeting
 U.S. Employment Law is a Fragmented Work
in Progress
 Sources of Employment Law
 Substantive Rights Under Employment Law
 Determining Which Employment Laws
Apply
 Historical Development of U.S. Employment
Law

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Chapter Outline (2 of 2)
Procedures for Enforcing Employment Laws
 Enforceability of Arbitration Agreements
 Remedies for Violations of Employment
Laws
 The Role of Managers in Legal Compliance

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Heard at the Staff Meeting (1 of 2)

Any legal issues here?
◦ We've lined up some interns from a local college to
take the place of vacationing staff members. We
won’t pay them, but hopefully, they will make a real
contribution.
◦ When hiring, our background checks will reveal
which job candidates have an arrest or conviction;
they will be dropped from consideration.
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service or otherwise on a password-protected website for classroom use.
Heard at the Staff Meeting (2 of 2)

Any legal issues here? (cont.)
◦ An employee has been deployed to Afghanistan
twice and has missed more than two years of work.
She is returning and wants her job back, but her
skills are out of date, and she might be deployed
again. We won’t take her back.
◦ Because health insurance is so expensive, we’re
requiring all of our applicants to complete lengthy
medical histories, including whether certain diseases
run in their families.
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
U.S. Employment Law
Employment law is a patchwork of federal,
state, and local laws.
 Whether and how laws apply depends on:

◦ Whether employees work for the
government or a private employer
◦ Whether they have union representation
◦ The size of their employer

Employment law is dynamic, and changes
daily.
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service or otherwise on a password-protected website for classroom use.
Sources of Employment Law
◦ Constitutions
 Ex: 4th Amendment prohibiting unreasonable search
& seizure, U.S. Constitution
◦ Statutes
 Ex:Title VII barring employment discrimination
◦ Executive Orders
 Ex : EO # 11246 non-discrimination by contractors
◦ Regulations, Guidelines & Administrative
decisions
 Ex : OSHA safety standards
◦ Common law (case decisions)
 Ex : Casias v. Wal-Mart Stores
8
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service or otherwise on a password-protected website for classroom use.
Substantive Rights
under Employment Law (1 of 3)
The starting point for any analysis or
discussion of U.S. employment law is the
“Employment at Will” doctrine.
 Many people mistakenly believe that they
cannot be fired as long as they are doing a
good job, but this is not true.
 Unless there is an exception, the
Employment at will doctrine controls

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© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Substantive Rights
under Employment Law (2 of 3)

Under Employment at will:
◦ An employee can quit at any time for any reason or
no reason at all.
◦ An employer can fire an employee at any time for any
reason or no reason at all, except for reasons
prohibited by law.

If the parties’ relationship is governed by
a contract, the contract controls.
 Ex : employment contracts of executives & others;
union collective bargaining agreements (CBAs)
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service or otherwise on a password-protected website for classroom use.
Substantive Rights
under Employment Law (3 of 3)
Nondiscrimination and Equal Employment
Opportunity
 Freedom to Engage in Concerted Activity
and Collective Bargaining
 Terms and Conditions of Employment
that Meet Minimum Standards
 Protection of Fundamental Rights

◦ Ex: privacy torts

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Compensation for Certain Types of Harm
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service or otherwise on a password-protected website for classroom use.
Determining Which
Employment Laws Apply
Public Sector or Private Sector
Employment
 Unionized or Nonunion Workplace
 Employer Size

◦ Calculated by the payroll method
Geographic Location
 Government Contracts
 Industry and Occupation

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service or otherwise on a password-protected website for classroom use.
Table 1.1Employment Size of Firms (2010)
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service or otherwise on a password-protected website for classroom use.
Historical Development
of U.S. Employment Law
At turn of twentieth century, employment
law was nonexistent.
 First employment legislation:

◦ State workers’ compensation laws to deal
with severe problem of injured workers
◦ 1930s, National Labor Relations Act
Most employment laws reflect the work
of social movements.
 Figure 1.1 lists U.S. employment laws.

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service or otherwise on a password-protected website for classroom use.
Figure 1.1- Timeline
of Major U.S. Employment Laws
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service or otherwise on a password-protected website for classroom use.
Procedures for
Enforcing Employment Laws (1 of 3)
Enforcement procedures exist for bringing
and resolving claims.
 What Does an Employee Decide to Do When
She Believes That Her Rights Were Violated?
 How Long Does the Employee Have to Bring a
Case?

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◦ What is the limitations period?
◦ Does equitable tolling apply?
◦ The Lilly Ledbetter Fair Pay Act provides that each
discriminatorily low paycheck is a separate violation
which starts the limitations period anew.
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Procedures for
Enforcing Employment Laws (2 of 3)

Can a Lawsuit be Brought? By Whom?
◦
◦
◦
◦
◦
◦
◦
Suits may be brought in state or federal court.
If federal, the trial is held in the district court.
Many cases are dismissed by summary judgment.
The employee who is suing is the plaintiff.
At trial, plaintiff bears the burden of proof.
Either party may appeal to the appeals court.
Rarely does a case appealed from the appeals court get
to the U.S. Supreme Court; if accepted, the
Supreme Court issues a writ of certiorari.
◦ Consistency & stability are provided by stare decisis.
17
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Procedures for
Enforcing Employment Laws (3 of 3)
Class Action Lawsuits
 Is There an Administrative Prerequisite to a
Lawsuit?

◦ Some employment laws require that a charge be filed
with the EEOC or Department of Labor
◦ The agency tries to reach conciliation with the parties.
◦ Failing that, the agency issues a right-to-sue letter.

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Must the Employee Exhaust Internal Dispute
Resolution Mechanisms Before Proceeding?
◦ Or are there other alternative dispute resolution
procedures?
© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Enforceability of
Arbitration Agreements (1 of 2)
Mandatory arbitration agreements, requiring
employees to submit their employment disputes
to arbitration (not mediation), rather than
bring suit in court, are generally enforceable.
 The employee must agree, in writing.
 The Federal Arbitration Act (FAA) requires
courts to enforce most written arbitration
agreements.
 But like other contracts, arbitration agreements
are subject to contract defenses.

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© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Enforceability of
Arbitration Agreements (2 of 2)

In some states, arbitration agreements will not
be enforced if they are “unconscionable,” both
procedurally and substantively.
◦ A contract is “procedurally unconscionable” if drafted
by the party with greater bargaining power and
presented on a “take it or leave it” basis without
opportunity for negotiation or modification.
 Ex: cell phone contract
◦ A contract is “substantively unconscionable” if its
terms are markedly unfair to the less powerful party,
particularly by imposing limits and burdens on the
less powerful party which are not shared by the other.
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service or otherwise on a password-protected website for classroom use.
Smart Practice –
Arbitration Agreements (1 of 2)

A poorly drafted arbitration agreement is likely
to be unenforceable. If your firm decides to use
arbitration agreements, avoid provisions like
these:
◦
◦
◦
◦
◦
No selection of a neutral arbitrator
Employee pays excessive fees
Remedies inferior to those granted by court
No minimum discovery process
Many restrictions placed on the employee, but few on
the employer
◦ Employer reserves the right to change the agreement
at any time
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service or otherwise on a password-protected website for classroom use.
Smart Practice –
Arbitration Agreements (2 of 2)

Some firms have tried to establish mandatory
arbitration without gaining knowing consent,
raising contract defenses. If your firm decides to
use mandatory arbitration agreements, make
certain that:
◦ They are in writing.
◦ They clearly notify employees that they are waiving
their right to sue.
◦ The employee understands the terms.
◦ The employee signs in writing to indicate acceptance
of the agreement.
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service or otherwise on a password-protected website for classroom use.
Smart Practice –
Documentation
Because employment decisions can have
consequences months or years after the events,
HR managers should be careful to document
decisions and the reasons for them at the time
they occur.
 Such records are useful evidence in the event of
a claim or lawsuit, and can help your firm avoid
liability.

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© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
Remedies for
Violations of Employment Laws(1 of 2)

EEOC remedies for violations may include:
◦
◦
◦
◦
◦
◦
◦
◦
◦

Attorneys’ fees
Court orders
Back pay
Front pay
Reinstatement
Hiring
Liquidated damages
Compensatory damages
Punitive damages
But not all remedies are available for every case.
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service or otherwise on a password-protected website for classroom use.
Remedies for
Violations of Employment Laws(2 of 2)
Arbitration clauses in collective bargaining
agreements (CBAs) do not bar those
employees from going to court.
 Arbitration agreements do not prevent
employees from bringing complaints to
government agencies like the EEOC, which may
bring suit.
 EEOC has increasingly sought agreements from
defendant employers to have their employment
practices overseen by external monitors, and to
institute wide-ranging diversity programs.

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© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.
The Role of Managers
in Legal Compliance





To recognize, analyze and deal effectively with
employment law issues.
To put in place sound policies and practices that
PREVENT legal problems from arising in first
place.
To enforce compliance with established law and
develop strategies for dealing with legal issues
that are not clear.
To know when to seek legal advice.
An employer should define its legal
compliance strategy.
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service or otherwise on a password-protected website for classroom use.
What Would You Do?

A good employee with a near perfect
attendance record has suddenly been
missing 2-3 days of work per week. His
supervisor has repeatedly told him he
must be at work daily, or he will be fired.
Now, the supervisor wants to fire him,
but has come to ask you to do it. As
Human Resources Manager (you are the
person in charge), what should you do?
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service or otherwise on a password-protected website for classroom use.
Next:

Chapter 2 – The Employment
Relationship
◦ Who is an employee?
◦ Who is the employer?
◦ Does an employment relationship even exist?

The answers may surprise you. Stay
tuned.
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© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or
service or otherwise on a password-protected website for classroom use.