Ch 41
Employment Law
rev 11-28-23 19pg BLawLec13Ch41-EmplLaw.docx
A. Labor Law
Historically, organized labor activities such as strikes, picketing, and
refusals to deal were considered to be criminal and tortious conduct.
Eventually, public pressure prompted Congress to intervene and
establish laws to regulate labor issues.
Norris-LaGuardia Act
Enacted in 1932, it removed the Federal courts’ injunctive power in nonviolent labor disputes. Labor dispute was defined as any controversy
concerning terms or conditions of employment or union representation.
This act also gave workers the right to form labor unions.
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National Labor Relations Act (Also called the Wagner Act) – Enacted in
1935, it established the National Labor Relations Board to administer
employee rights. This act supported collective bargaining and
unionization and prohibited certain employer conduct as unfair labor
practices (ULP).
Employer ULPs include: a) interference with unionization or bargaining
effort, b) union domination, c) discrimination against union members,
d) discrimination against an employee for filing charges or testifying
under the NLRB, and e) refusal to bargain in good faith.
Labor-Management Relations Act (Also called the Taft-Hartley Act) –
Enacted in 1947, following labor unrest and increased union
membership. Separates the NLRB’s prosecutorial and adjudicative
functions and prohibits certain unfair employee and union conduct
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Including:
(1) Coercing employees to join a union, (2) discrimination against a nonunion employee, (3) refusing to bargain in good faith, (4) excessive or
discriminatory dues or fees, (5) charging for work not performed
(“featherbedding”), (6) picketing for recognition of an uncertified union,
and (7) engaging in secondary activities.
Prohibits the closed shop (hiring only union members), although it
permits union shops (new employees must join union), unless union
‘closed’ shops are prohibited by a state right-to-work law.
Reinstates the availability of civil injunctions in order to prevent an
unfair labor practice, and empowers the president of the U.S. to obtain
an injunction for an eighty-day cooling-off period for a strike that is
likely to endanger the national health or safety.
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Labor-Management Reporting and Disclosure Act (Also called the
Landrum-Griffin Act) – Passed in 1959, it was intended to eliminate
corruption in labor unions. Established a union “bill of rights,” to
provide union members with the right to freely participate in union
business and meetings, including nominating candidates for union
offices and voting.
B. Employment Discrimination Law
A number of federal statutes prohibit discrimination in employment on
the basis of race, sex, religion, national origin, age and handicap. The
cornerstone of federal employment discrimination law is Title VII of the
1964 Civil Rights Act. Other significant acts include the Civil Rights Act
of 1991 and the Americans with Disabilities Act of 1990.
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Equal Pay Act – Employers may not discriminate on the basis of sex by
paying unequal compensation for similar work.
The burden of proof is on the claimant. Once a prima facie case is
demonstrated, the burden then shifts to the employer to prove that the
pay differential is based on (1) a seniority system, (2) a merit system, (3)
a system that measures earnings by quantity or quality of production, or
(4) any factor except sex.
Remedies include awarding back pay and enjoining the employer from
further unlawful conduct.
Civil Rights Act of 1964 – this act applies to employers having fifteen or
more employees and prohibits discrimination in hiring or promoting
based on race, color, sex, religion, or national origin.
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Enforcement is by the Equal Employment Opportunity Commission.
The Civil Rights Act of 1991 places the burden of proof on the
employer.
Proving Discrimination – Each of these is discriminatory conduct
prohibited by the Civil Rights Act of 1964:
1. Disparate Treatment. Occurs when an employer uses a criterion
such as race, color, gender, national origin, or religion, in making an
employment decision such as hiring, firing, promoting, demoting.
Exists if the plaintiff (a) is within a protected class, (b) applied for
an open position, (c) was qualified, (d) was denied, and (e) the
employer continued to recruit for the position.
The employer must “articulate legitimate and nondiscriminatory
reasons for the plaintiff’s rejection.”
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2. Present Effects of Past Discrimination. Occurs when an employer
engages in conduct that on its face is “neutral,” but that actually
perpetuates past discriminatory practices.
3. Disparate Impact. Occurs when an employer adopts “neutral” rules
that adversely affect a protected class and that are not justified as
being necessary to the business.
Defenses – The act provides three basic defenses: (1) a bona fide
seniority or merit system, (2) a professionally developed ability test, and
(3) a bona fide occupational qualification ‘BFOQ’ (does not apply to
racial discrimination).
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Remedies – include enjoining the employer from engaging in the
unlawful behavior, appropriate affirmative action, reinstating employees
and awarding back pay. Damages for all victims, except those subject to
racial discrimination, are capped or limited depending upon the
company’s number of employees. Either party in all instances may
demand a jury trial.
Reverse Discrimination – a claim, typically by a white male, that
affirmative action programs (which take race or sex into account when
hiring or promoting in order to remedy under-representation of that
race or sex) violate his civil rights. Different standards of review are
applicable depending upon whether the affirmative action plan is
maintained by a private employer, a state or local government employer,
or the federal government. A 1995 ruling placed new constraints on the
federal government in programs that favor minorities.
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Sexual Harassment – constitutes a violation of Title VII when it creates
an offensive working environment or is the basis for employment
decisions. Employers may become liable for the sexual harassment
committed by their agents despite lack of knowledge. In 1998, the
Supreme Court ruled that sex discrimination in same-sex harassment is
actionable under Title VII.
Comparable Worth – statistics indicate that working women earn about
2/3 as much as working men. The Equal Pay Act does not address a
remedy for women whose traditional jobs (secretaries, nurses) have
been systematically undervalued and underpaid. The comparable
worth concept advocates development of relative bias-free values based
on factors such as skill, effort, working conditions, responsibility, and
mental demands for different jobs.
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Executive Order – Issued by President Johnson in 1965, it prohibits
discrimination by Federal contractors based on race, color, sex, religion,
or national origin. It also requires affirmative action in recruiting. It
applies to:
* all contractors who enter into a Federal contract to be
performed in the U.S.
* all subcontractors to be paid more than $10,000
All non-construction employers with 50 or more employees who have
more than $50,000 in contracts must have a written affirmative action
plan. Until spring of 2023, the racial affirmative action plans applied to
university admissions as well, but it’s now illegal to use race as a factor
in university admissions.
Age Discrimination in Employment Act of 1967 applies to private
employers having twenty or more employees and to all governmental
units, regardless of size.
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Also prohibits mandatory retirement for most employees, no matter
what their age, unless the retirement is justified by a suitable defense.
Three major defenses: bona fide occupational qualification, bona fide
seniority system, and any other reasonable action.
Disability Law – The Rehabilitation Act of 1973 assists the handicapped
in obtaining rehabilitation training, access to public facilities, and
employment and requires Federal agencies and contractors to take
affirmative action to hire qualified handicapped persons. The American
with Disabilities Act of 1990 requires, among other things, employers
with 15 or more employees to exclude a person’s handicap from any
hiring decision. The Vietnam Veterans Readjustment Act of 1974
requires firms having $10,000 or more in federal contracts to engage in
affirmative action for disabled veterans and Vietnam-era veterans.
The Pregnancy Discrimination Act says employers may not refuse to
hire a qualified pregnant woman or fire her because of pregnancy, or
force her to take maternity leave
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C. Employee Protection
Employee Termination-at-Will – at common law, any employment
contract not for a definite term could be ended at any time by either
party.
Statutory Limitations - this rule has been somewhat restricted by a
number of statutes which protect certain employees (1) from
discriminatory discharge, (2) in their exercise of statutory rights, and
(3) from discharge without cause.
Many states also protect workers from discriminatory discharge for
filing workers’ compensation claims.
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Judicial Limitations – courts have also intervened by creating exceptions
to this rule primarily under implied contract theories. These cases have
found that employment contracts contain an implied promise to deal in
good faith and a duty to terminate in good faith and for just cause.
The most frequent basis for wrongful discharge is that the discharge
violates statutory or other established public policy. In general, these
cases involve dismissal for (1) refusing to violate a statute, (2) exercising
a statutory right (voting), (3) performing a statutory obligation (jury
service, military), or (4) reporting an alleged violation of a statute of
public interest.
Occupational Safety and Health Act – Enacted in 1970, the act requires
employers to provide a safe work environment. The Occupational
Safety and Health Administration (OSHA) develops standards, conducts
inspections, monitors compliance, and institutes enforcement actions.
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Employers may not discharge or otherwise discriminate against
employees who exercise their rights under this act.
Employee Privacy – protection from unwanted searches, electronic
monitoring and other forms of surveillance, and disclosure of
confidential records are safeguarded by the tort of invasion of privacy.
BUT employer may monitor email and use video surveillance except
where privacy would be expected.
Drug and Alcohol Testing – a number of states have legislation
prohibiting such tests or providing certain scientific and procedural
standards. The NLRB has held such testing in a union setting is a
mandatory subject of collective bargaining. Based on Supreme Court
and lower court decisions, the government may use (1) random or
universal testing where the public health or safety or national security is
involved, and (2) selective drug testing for those employees believed to
have a drug problem.
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Lie Detector Tests – The Federal Employee Polygraph Protection
Act of 1988 prohibits private employers from requiring
employees to undergo a lie detector test unless there is an
ongoing investigation of economic loss to the business. The act
exempts government employers and certain others. Even a
private employer is allowed to administer a lie detector test if
there is an ongoing investigation of economic losses.
Workers’ Compensation – State statutes established boards to
determine what compensation an injured employee should
receive. The amounts are fixed by statute and are not affected
by the common law defenses of contributory negligence and
voluntary assumption of the risk. The only requirement is that
the employee be injured and that the injury arise out of and in
the course of his employment.
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Social Security and Unemployment Insurance – Enacted in 1935, the
federal Social Security system has expanded to cover almost all
employees, and contains four major benefit programs: (1) Old-Age and
Survivors Insurance (OASI) (providing retirement and survivor benefits),
(2) Disability Insurance (DI), (3) Hospitalization Insurance (Medicare),
and (4) Supplemental Security Income (SSI).
The system is financed by taxes paid by employers, employees, and selfemployed individuals. Benefits vary greatly depending on the particular
program and how much the individual has paid into the program. The
OASI benefits are tax-free, unless the recipient has income in excess of a
specified amount.
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The federal unemployment insurance system was created by Title IX of
the Social Security act of 1935, to provide unemployment
compensation to workers who have lost their jobs. Federal law provides
the general guidelines, standards, and requirements, while the states
administer the program through their own employment laws.
The system is funded by employer taxes; federal taxes generally pay the
program’s administrative costs, and state contributions pay for the
actual benefits. Payments, generally made weekly, are based on a
particular state’s formula.
Fair Labor Standards Act – The act regulates the employment of child
labor outside of agriculture (no employees under age 14, except in
newspaper delivery and acting; 14 and 15-year-olds can work limited
hours in non-hazardous jobs; 16 and 17-year-olds may work in any
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non-hazardous job, while persons 18 years old or older may work in any
job, whether it’s hazardous or not.) The act also sets a minimum hourly
wage and overtime pay of time-and-a-half for hours worked in excess of
forty hours per week. Salaried employees generally don’t get overtime
pay.
Worker Adjustment and Retraining Notification Act (WARN) – requires
sixty days advance notice of a plant closing or mass layoff (either 500
employees or for at least 1/3 of the employees at that site, if 1/3 equals
or exceeds 50 employees).
WARN requires the notification be given to specified state and local
officials as well as to the affected employees or their union
representatives. The act reduces the notification period for failing
companies and emergency situations.
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Family and Medical Leave Act of 1993 – provides that employers with
50 or more employees as well as Federal, State, and local governments,
must grant employees as much as twelve weeks of leave during any
twelve month period for the birth of a child; the adoption or gaining
foster care of a child; or a serious health condition of a spouse, child, or
parent.
Employees are eligible for the leave if they have been employed by their
employer for at least 12 months, and have worked at least 1,250 hours
for their employer during the last 12 months preceding the leave
request. The requested leave may be paid, unpaid, or a combination of
both.
The Pregnancy Discrimination Act mandates employers not refuse to
hire a pregnant woman, fire her, or force her to take maternity leave
merely because she is pregnant.
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