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 Historically, employment law was governed by the common law doctrine of
“ employment at will ” where either employer or employee could terminate the relationship at any time, for any reason.
 Today employment law is heavily regulated by statutes.
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 The modern statutory scheme emphasized in the course includes:
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The Equal Pay Act of 1963 (Amending the Fair Labor
Standards Act of 1938) prohibiting wage discrimination against female employees;
Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq ., applicable to both public and private employers, labor organizations, and employment agencies – and establishing protections against discrimination based on race, color, sex, religion and national origin;
 The Age Discrimination in Employment Act of 1967, prohibiting discrimination against employees age 40 or older;
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Title I of the Americans with Disabilities Act of 1990, 42
U.S.C. § 12111, as amended in August, 2009, prohibiting discrimination against qualified individuals with disabilities and reaffirming the statutory Title I definition of “disability”;
The Civil Rights Act of 1991 (Amending certain sections of Title VII and the ADA), providing for compensatory and punitive damages for intentional discrimination, and for jury trials in Title VII cases, and overturning the
Wards Cove line of cases and reaffirming the basic holding of Griggs v. Duke Power ( See 42 U.S.C.,
§ 2000e-2(k).
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 Traditionally, employment relationships have been by common law doctrine of
“ employment at will.
”
 Either party may terminate at any time for any reason.
 Exceptions: Contract, Tort, Public Policy.
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 The doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability.
 In US, some states however recognize one or more judicial exceptions to this rule, while some states recognize none.
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1. Good Cause Statutes, Implied Covenant of Good
Faith,
 & the Life-Cycle Theory of Employment
 2. Promissory Estoppel
 3. Tortuous Interference with Contract Rights
 4. Discrimination Statutes
 5. Anti-Retaliation, Whistleblowing, & Free Speech
Rights
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 1. Claiming Wrongful Actions Short of
Termination
 2. Infliction of Emotional Distress; Abusive
Supervision
 3. Harassment: Sexual, Discriminatory, or
Retaliatory
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Hours and Wages.
 the prevailing wage
 the beginning of minimum wages.
 Exception: eg. US Fair Labor Standards Act
(FLSA) -- an extension of wage and hour regulation to workers in interstate commerce.
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1. The Required Rates
 2. Exempt vs Nonexempt Employees
 3. What Compensation Counts?
 4. What Hours Count?
 5. Employers Charging Employees for
Expenses & Losses
 6. Enforcement & Remedies
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 Employment discrimination: discrimination in hiring, promotion, job assignment, termination, and compensation.
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Laws often prohibit discrimination on the basis of:
Race or color
Ethnicity or national origin
Sex or gender
Pregnancy
Religion or creed
Political affiliation
Language abilities
Citizenship
Disability or medical condition
Age…
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“ Disparate-Treatment ” Discrimination
Plaintiff is a member of a protected group
Plaintiff suffered an adverse employment action
Plaintiff is otherwise qualified to hold the position (minimally) the Defendant's actions were motivated by discriminatory intent .
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 “ Disparate Impact ” Discrimination.
 a disproportionate “adverse impact”, caused by
 an employment practice or policy ,on
 members of the protected class, without
 "business necessity"
 A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its effect.
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 substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race or sex group.
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 The term describes characteristics or factors which can not be targeted for discrimination and harassment, such as race, gender, age.
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BFOQ :a bona fide occupational qualification is a quality that employers are allowed to consider when making decisions on the hiring and retention of employees
– qualities that when considered in other contexts would constitute discrimination .Such qualifications must be listed in the employment offering.
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 Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or Gender “ Sex ” Discrimination .
 Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.
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 Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job.
 Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.
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 Hostile Work Environment.
 Quid Pro Quo.
 Case 34.1: Carey v. Mount Desert Island
(1998).
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 Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme
Court has interpreted Title VII ’ s prohibition against sex discrimination to include a prohibition against sexual harassment.
 There are currently two forms of recognized sexual harassment:
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Hostile Work Environment.
Quid Pro Quo.
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 Hostile environment occurs when workplace is “ permeated ” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim ’ s employment.
 The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.
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 Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit.
 Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.
 Case 34.2: Jin v. Metropolitan Life Ins. Co.
(2002).
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 Faragher v. City of Boca Raton (1998)
 Employer (city) could be liable for supervisor ’ s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees.
 Burlington Industries v. Ellerth (1998).
 Company liable for harassment even though the employee suffered no adverse job consequences.
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 Employers have a defense if:
 They took “ reasonable care to prevent and correct promptly any sexually harassing behavior ” by establishing and distributing effective harassment policies and procedures.
 That the employee suing for harassment failed to follow these policies and procedures.
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 Employer generally liable only if employer knew or should have known and failed to take action.
 Employee notice to supervisor is notice to
Employer under agency law.
 Employers may also be liable for harassment by non-employees.
 Same-sex harassment also violates Title VII.
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 The Age Discrimination in
Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.
 Under Kimmel v. Florida Board of
Regents (2000), states are immune from private lawsuits brought in federal court under 11 th Amendment.
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 The Americans with Disability Act (ADA) requires employers to offer reasonable accommodation to employees or applicants with a “ disability ” who are otherwise qualified for the job they hold or seek.
 The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.
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§
 bargains with the employer on behalf of union members
 negotiates labor contracts (collective bargaining) with employers
 negotiation of wages, work rules, complaint procedures, rules governing hiring, firing and promotion of workers, benefits, workplace safety and policies
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National Labor Relations Act.
 Establishes the right of workers to strike and engage in collective bargaining.
Labor Management Relations Act.
 Prohibits certain unfair union practices such as closed shops.
Labor-Management Reporting and
Disclosure Act.
 Regulates the internal operations of unions and outlaws hot-cargo agreements.
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 Elections.
 Election Campaigns.
 The National Labor Relations Board regulates the rights and obligations of employers and workers in the election process.
 Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other ’ s activities.
 Case 33.2: Associated Rubber v. NLRB
(2002).
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 Collective bargaining is the process by which management and labor negotiate the terms and conditions of employment.
 The NLRB will certify an exclusive bargaining agent for labor.
 Both labor and management must bargain in good faith, but the law does not require that they reach an agreement.
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 There are two basic forms of strikes:
 Economic Strikes.
 These are strikes over wages.
 Workers can be replaced by permanent replacements.
 Unfair Labor Practice Strikes.
 These are strikes alleging that the employer has committed an unfair labor practice.
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Intentional: “ Disparate-Treatment ”
Discrimination. Applicant must prove:
 She is member of a protected class;
 Applied, qualified and rejected for job; and
 Employer continued to seek applicants.
Negligent: “ Disparate Impact ”
Discrimination.
 Non-protected applicant sues Employer who tries to integrate members of protected classes into workplace.
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 The EPA amends the Fair Labor Standards
Act to prohibit gender-based discrimination in wages paid for similar jobs performed under similar conditions.
 Pay differentials for jobs with the same or similar jobs can be justified on the basis of seniority, merit, a piece-work system, or any factor other than gender.
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 Reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by:
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Requiring that injured employees make a claim against the employer ’ s workers ’ compensation insurance policy, instead of suing the employer.
Requiring most employers to carry workers ’ compensation insurance.
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 a. Benefits and procedures
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 b. Who is an employee?
c. “Arising out of and in the course of employment”
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 a. The fundamental bargain
 b. Exception for intentional acts
 c. Non-physical torts
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