Employment Law
Chapter 18
Employment At Will
• Common law doctrine under which either
party may terminate employment
relationship at any time for any reason (or
no reason).
Employment At Will
• Exceptions in the case of:
– Employment contracts
– Public policy such as whistleblower
protection
Whistleblower Protection Act
• Prohibits an employer from terminating
an employee for refusing to perform an
illegal or for reporting illegal conduct to
proper authorities.
• Both federal and state provisions.
Fair Labor Standards Act
• Minimum Wage - lowest wage that an
employer may pay an hourly-wage
employee ($7.25 per hour as July 2009).
• Overtime Pay - any hours worked in excess
of 40 hours per week eligible for time and
one-half pay (except for exempt employees)
• Child Labor - certain occupations prohibited
for under 16 year-olds
Occupational Safety and Health
Act (OSHA)
• Federal agency empowered to promulgate
workplace health and safety standards, to
conduct workplace inspections, and to
investigate employee complaints
• Employers must promptly report any
workplace accident as a result of which an
employee was killed or at least five
employees were hospitalized
Social Security Act
• Government-assured supplemental
income for persons (i) over the age of 65
years, (ii) their survivors, and (iii)
disabled persons
• Also provides Medicare - Governmentadministered health insurance program
for those eligible for social security.
Family and Medical Leave Act
• Federal law requiring employers with 50
+ employees to provide up to 12 weeks of
family or medical leave during any
twelve-month period.
• During leave, employer must continue to
provide benefits to the employee but is
not required to pay the employee while
on leave.
COBRA
• COBRA prohibits the discontinuance of
insurance benefits of workers who have
voluntarily or involuntarily been separated
from work, unless the involuntary
separation was on the basis of gross
misconduct.
• Employers must comply if they have more
than 20 employees.
Workers’ Compensation Laws
• State laws establishing administrative
procedure for compensating workers for
workplace injuries in the course of
employment, regardless of fault.
• Payments for medical expenses and a
portion of lost wages.
• No compensation for pain and suffering
Employee Privacy Rights
• Electronic Monitoring in the Workplace.
– Electronic Communications Privacy Act allows
employers to monitor electronic
communications in the workplace.
– But it prohibits intentional interception of
personal communications.
– ECPA does permit employers to monitor
employee electronic communications in the
course of business.
Employee Privacy Rights
• Electronic Performance Surveillance.
– Most limitations can be avoided if the employer
informs employees that surveillance will occur.
• Screening Procedures.
– Application question must have some
reasonable connection to the job sought.
• Privacy Expectations and Email systems
– Courts generally hold for employers.
Employment Discrimination
• Title VII of the Civil Rights Act (1964)
prohibits job discrimination based on
– Treating employees or job applicants
unequally on the basis of race, color,
national origin, religion, gender, age, or
disability.
Title VII of Civil Rights Act
Disparate-Treatment Discrimination
– Intentional discrimination against
members of a protected class; or
Disparate Impact Discrimination
– Discrimination resulting from practices or
procedures which, although not facially
discriminatory, have the effect of
discriminating against members of a
protected class
Title VII of Civil Rights Act
• To prevail on a disparate impact claims, a
plaintiff must prove :
– member of a protected class
– rejected, demoted, or terminated by the
employer
– position subsequently filled with a person
not in a protected class
Title VII of Civil Rights Act
• Disparate impact has been found in the
following job application requirements:
– arrest records
– credit history
– general education background
Title VII of Civil Rights Act
• Pregnancy -- women who are pregnant,
have recently given birth, or have a medical
condition related to pregnancy or childbirth
must be treated the same as any other
employee who is temporarily unable to
perform some or all job functions.
Equal Pay Act
• Federal law prohibits gender-based
differences in wages paid for equal work on
jobs whose performance requires equal
skill, effort, and responsibility under similar
conditions.
Sexual Harassment
• Quid-Pro-Quo Sexual Harassment
– Granting employment, job promotions, or
other benefits in return for sexual favors,
or refusing (or threatening refusal) to
hire, promote, or extend other
employment benefits if sexual favors are
refused.
Sexual Harassment
• Hostile Environment Harassment
– Language or conduct that is so sexually
offensive that it creates a hostile working
environment.
Sexual Harassment
• Sources of Harassment
– Employers are generally liable for sexual
harassment by managers and supervisory
employees regardless of the employer’s
knowledge of the harassment.
Sexual Harassment
• Sources of Harassment
– Employers are generally liable for sexual
harassment by an employee’s co-workers
only if the employer knew or should have
known about the harassment and failed to
take remedial action.
Age Discrimination
• Age Discrimination in Employment Act
(“ADEA”)
– Federal law prohibiting (i) employment
discrimination on the basis of age against
persons 40 years of age and older, and (ii)
mandatory retirement for non-managerial
employees.
Age Discrimination
• In order to prevail, a plaintiff must show the
following:
– member of the protected age group at the time
of the employment decision
– qualified for the position
– discharged, denied employment, or denied
promotion under circumstances giving rise to a
reasonable inference of discrimination
Disability Discrimination
• Americans with Disabilities Act (“ADA”)
– Federal law prohibiting discrimination in
hiring, promotion, and discharge against
persons with disabilities.
Disability Discrimination
• The ADA defines a “disability” as:
– A mental or physical impairment that
substantially limits one or more major life
activities
– A record of such impairment, or
– Being regarded as having such an
impairment.
Disability Discrimination
• Employers are required by the ADA to
reasonably accommodate a disability of an
employee or job applicant who is otherwise
qualified to perform the essential functions
of the job in question.
• Cannot create undue hardship on employer
Enforcement of Laws
• File claim with Equal Employment
Opportunity Commission (EEOC)
• File claim with local Human Relations
Commission.
• Agency may take lead in enforcement or
issue “right to sue” letter
Remedies for Violations
• Liability may be extensive. Plaintiff may
receive:
–
–
–
–
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.
Defenses
• Once a plaintiff establishes that discrimination has
occurred, the burden shifts to the employer to
justify the discriminatory policy or practice.
• There are four basic types of defenses to
employment discrimination claims.
–
–
–
–
Business necessity.
Bona fide occupational qualification.
Seniority Systems.
After-acquired evidence of employee misconduct.
Business Necessity
• The business necessity defense requires the
employer to demonstrate that the imposition
of a job qualification is reasonably
necessary to the legitimate conduct of the
employer’s business.
• Business necessity is a defense to disparate
impact discrimination.
BFOQ
• Bona Fide Occupational Qualification
(“BFOQ”)
– Job requirements that are reasonably
necessary to the normal operation of a
business.
– (Race cannot be a BFOQ)
Seniority Systems
• A seniority system is one that conditions the
distribution of job benefits on the length of
time one has worked for an employer.
• A seniority system can be a defense only if
it is a bona fide system, not designed to
evade the effects of the anti-discrimination
laws.
After-Acquired Evidence
• After-acquired evidence refers to evidence of
misconduct, committed by an employee who is
suing an employer for employment
discrimination, that is uncovered during the
process of discovery conducted in preparation
for a defense against the suit.
• While it may serve to limit employee recovery,
it does not act as an absolute defense for the
employer.
Employment Law
End of Chapter 18