LABOR AND
EMPLOYMENT LAW IN
THE UNITED STATES
AN OVERVIEW
PROFESSOR MEREDITH S. JEFFRIES
THE CHARLOTTE SCHOOL OF LAW
FEDERAL POWER V.
STATE POWER:
LAWS AND COURT SYSTEMS IN
THE UNITED STATES
STRUCTURE OF AMERICAN
GOVERNMENT
Article IV, section four of the
Constitution specifically declared that
“[t]he United States shall guarantee to
every State in this Union a Republican
Form of Government. . . .”
STRUCTURE OF AMERICAN GOVERNMENT
The residual authority of state governments is
reflected in the Tenth Amendment to the
United States Constitution
“Powers not delegated to the U.S. by the
Constitution, nor prohibited by it to the
states, are reserved to the states.”
FEDERALISM AND EMPLOYMENT LAW
EXAMPLES OF FEDERAL LAWS:
• Federal Anti-Discrimination Laws: Title VII of the Civil Rights Act
of 1964, the Americans With Disabilities Act (ADA), the Age
Discrimination in Employment Act (ADEA), USERRA (Uniformed
Services Employment and Reemployment Rights Act), GINA
(Genetic Information Nondiscrimination Act)
• Federal laws governing wages, hours, employee benefits, and
medical leave: The Fair Labor Standards Act (F:LSA), The
Family Medical Leave Act (FMLA), the Employee Retirement
Income Security Act (ERISA)
• Federal Labor Law: The National Labor Relations Act (NLRA)
FEDERALISM AND EMPLOYMENT LAW
EXAMPLES OF STATE LAWS:
• Laws governing employment security, unemployment benefits,
contractual rights in the employment relationship, and wrongful
discharge
• Workers’ compensation laws governing compensation for injuries
incurred on the job
• Except for minimal rights to unpaid leave under FMLA, all vacation,
maternity leave, sick leave, etc. governed by state laws.
• Most employee privacy laws
• Laws on employer information, the restriction of competition, the
restriction of solicitation of customers by former employees, trade
secret protection
THE AT-WILL
EMPLOYMENT
DOCTRINE
WORLEY V. BAYER (N.C.APP. 2002)
In North Carolina, "the relationship between employer and
employee is presumed to be terminable at will" by either
party and without cause absent an agreement to the
contrary.
At Will Termination:
• No Notice
• No Cause
• No Severance Pay
EXAMPLES
Justin is a manager at McDonald’s. He wants to terminate the
employment of several of his employees. Which of the
following would be permissible terminations, without notice?
• Justin does not like Sally. He finds her to be loud, obnoxious,
and unattractive. Sally hasn’t broken any work rules and
generally performs her job as a cashier satisfactorily.
• Paul has used all of his allowed vacation days for his wedding
and honeymoon. When his mother dies, he misses two days of
work to attend her funeral. Justin wants to fire him for “job
abandonment”.
EXAMPLES
Justin is a manager at McDonald’s. He wants to terminate the
employment of several of his employees. Which of the following
would be permissible terminations, without notice?
• Justin has a Facebook account. One day on Facebook, he sees a
picture of Mary taken during Mary’s vacation. In the picture, Mary is
wearing a bikini and drinking a beer. Justin does not approve of
Mary’s lifestyle outside of work and wants to fire Mary.
• Justin’s friend Kurt needs a job, but the McDonalds Justin manages
is full-staffed. Justin wants to fire Thomas so that he can hire his
friend Kurt.
• Sarah is the assistant manager at McDonald’s and has an
employment contract that states that she is employed for one year
unless terminated for “illegal or egregious misconduct”. Justin wants
to fire Sarah and hire his friend Kurt to be the assistant manager.
EXAMPLES
Justin is a manager at McDonald’s. He wants to terminate the
employment of several of his employees. Which of the following
would be permissible terminations, without notice?
• Bariah works at McDonald’s and wants to wear a Hijab on her head
at work in adherence to her Muslim faith. Justin tells her she cannot
because the McDonald’s dress code requires her to wear a
McDonald’s hat. When she insists on wearing her Hijab. Justin wants
to fire her.
• Frank is a cook at McDonald’s and knows that the restaurant is
serving hamburger meat that expired a month ago. Frank reports
this to the Food and Drug Administration, which sets standards for
the food served in restaurants. Justin wants to fire Frank for “blowing
the whistle”.
WORLEY V. BAYER (N.C.APP. 2002)
In North Carolina, "the relationship between employer and
employee is presumed to be terminable at will" by either
party and without cause absent an agreement to the
contrary. Our Supreme Court has recognized three
exceptions to the at-will employment doctrine:
(1) a contract providing for a definite term of employment
(2) a discharge occurring for "impermissible considerations
such as the employee's age, race, sex, religion, national
origin, or disability, or in retaliation for filing certain claims
against the employer;" and
(3) a termination contravening public policy.
PREVALANCE OF EMPLOYMENT AT WILL
IN UNITED STATES
Total Civilians Employed
145 million
Employees employed at-will
100 million
Employees not employed at-will
approx. 30%
•
7% unionized private sector workers
•
12% private sector workers with express contracts
•
11% public sector employees with civil service
protections or union protections
WORLEY V. BAYER (N.C.APP. 2002)
In North Carolina, "the relationship between employer and
employee is presumed to be terminable at will" by either
party and without cause absent an agreement to the
contrary. Our Supreme Court has recognized three
exceptions to the at-will employment doctrine:
(1) a contract providing for a definite term of employment
(2) a discharge occurring for "impermissible considerations
such as the employee's age, race, sex, religion, national
origin, or disability, or in retaliation for filing certain claims
against the employer;" and
(3) a termination contravening public policy.
THE GLOBAL PERSPECTIVE
EMPLOYMENT CONTRACTS IN THE
EUROPEAN UNION AND UNDER
LITHUANIAN LABOUR CODE
Requirement for employers to provide employees with
written details of essential terms and conditions:
• Commencement date
• Description of work
• Place of work
• Daily or weekly working time
• Terms of compensation (in detail)
• Vacation
• Notice periods and/or terms (if limited)
WORLEY V. BAYER (N.C.APP. 2002)
In North Carolina, "the relationship between employer and
employee is presumed to be terminable at will" by either party and
without cause absent an agreement to the contrary. Our Supreme
Court has recognized three exceptions to the at-will employment
doctrine:
(1) a contract providing for a definite term of employment
[Professor’s note – I would include in this category a contract
providing that termination, even for an indefinite term, will be for
just cause]
(2) a discharge occurring for "impermissible considerations such
as the employee's age, race, sex, religion, national origin, or
disability, or in retaliation for filing certain claims against the
employer;" and
(3) a termination contravening public policy.
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FEDERALLY RECOGNIZED
PROTECTED CLASSES
Age
Race
Gender
National Origin
Color
Pregnancy
Religion
Disability
Genetic Indicators
Military Status
MODELS OF
EMPLOYMENT DISCRIMINATION
Disparate Treatment
 Individual
 Systemic (Pattern and Practice)
Harassment/Hostile Workplace
Disparate Impact
Failure to Reasonably Accommodate
MODELS OF EMPLOYMENT
DISCRIMINATION
Disparate Treatment
 Individual
 Systemic (Pattern and Practice)
Harassment/Hostile Workplace
Disparate Impact
Failure to Reasonably Accommodate
MODELS OF
EMPLOYMENT DISCRIMINATION
Disparate Treatment
Individual
Systemic (Pattern and Practice)
Harassment/Hostile Workplace
Disparate Impact
Failure to Reasonably Accommodate
POST-9/11 WORKPLACE
DISCRIMINATION CONTINUES
A lawsuit alleging the New York Plaza hotel and
Fairmont Hotel Management discriminated against
Muslim, Arab and South Asian employees settled for
$525,000. The lawsuit claimed that Plaza employees
were called "terrorist," "Taliban" and "dumb Muslim." It
also alleges that managers wrote "Osama" and
"Taliban" instead of employees' names on key holders.
MODELS OF
EMPLOYMENT DISCRIMINATION
Disparate Treatment
 Individual
 Systemic (Pattern and Practice)
Harassment/Hostile Workplace
Disparate Impact
Failure to Reasonably Accommodate
MODELS OF
EMPLOYMENT DISCRIMINATION
Disparate Treatment
 Individual
 Systemic (Pattern and Practice)
Harassment/Hostile Workplace
Disparate Impact
Failure to Reasonably Accommodate
WORLEY V. BAYER (N.C.APP. 2002)
In North Carolina, "the relationship between employer and
employee is presumed to be terminable at will" by either
party and without cause absent an agreement to the
contrary. Our Supreme Court has recognized three
exceptions to the at-will employment doctrine:
(1) a contract providing for a definite term of employment
(2) a discharge occurring for "impermissible considerations
such as the employee's age, race, sex, religion, national
origin, or disability, or in retaliation for filing certain claims
against the employer;" and
(3) a termination contravening public policy.
BASIC
TYPES OF
WRONGFUL
DISCHARGE
CLAIMS
EMPLOYEE’S
REFUSAL
TO COMMIT
UNLAWFUL
ACT
EMPLOYEE’S
EXERCISE
OF
STATUTORY
RIGHT
EMPLOYEE
FULFILLING
PUBLIC
OBLIGATION
EMPLOYEE
WHISTLEBLOWING
EXAMPLES OF PUBLIC POLICY EXCEPTIONS TO
THE AT-WILL DOCTRINE RECOGNIZED IN NC:
Employee terminated for refusing to violate DOT safety regulations applicable
to truck drivers.
Employee terminated for refusing to work for less than the minimum wage.
Employee terminated for testifying truthfully against the employer in another
employee’s lawsuit.
Employee terminated for reporting allegations of patient abuse in an alcoholic
rehabilitation center.
EXAMPLES OF CASES WHERE PUBLIC POLICY EXCEPTIONS TO
THE AT-WILL DOCTRINE NOT RECOGNIZED IN NC:
Employee terminated for defending himself in a fight started by a
co-worker with no provocation.
Employee terminated for associating with out-of-favor member of
the University faculty.
Employee terminated for giving an unfavorable interview about the
company to the media
THE GLOBAL PERSPECTIVE
EMPLOYMENT TERMINATIONS IN THE
EUROPEAN UNION AND UNDER LITHUANIAN
LABOUR CODE
• Terminations subject to strict rules
• Employee must be notified and given reasons for
termination in writing
• Statutory minimum notice periods for justified
terminations
• Strict requirements for reductions in force
• Progressive Discipline Requirements
Wage and Hour
Regulation
THE FAIR LABOR STANDARDS ACT
• Minimum Wage $7.25/Hour (19 Litas per hour)
• Overtime at 1.5 x pay for hours worked over 40
• Exemptions for certain classes of employees
WAL-MART AGREES TO $33 MILLION
SETTLEMENT IN FLSA CLASS ACTION
January 2007. Wal-Mart has agreed to pay $33
million to resolve alleged FLSA violations involving
86,680 employees nationwide. According to the
Department of Labor, the alleged violations involved
how Wal-Mart treated incentives and other premium
payments in the calculation of overtime pay.
MORGAN STANLEY AGREES TO $50
MILLON SETTLEMENT IN FLSA
CLASS ACTION
July 2009. Morgan Stanley agreed to pay financial
advisors who claimed they had been misclassified
as exempt employees and thus owed significant
overtime wages they had been denied as “salaried”
employees.
THE GLOBAL PERSPECTIVE
BENEFIT
UNITED STATES
LITHUANIA
Vacation (annual
holiday leave)
None Required
28-35 days paid
Public Holidays
None Required
13 calendar days
Pregnancy Leave
No leave before
70 days before
childbirth (unless
childbirth, protections
pregnancy creates a
on termination
serious health condition
– then up to 12 weeks
unpaid under FMLA if
>50 employees)
BENEFIT
UNITED STATES
LITHUANIA
Parental Leave
FMLA – If > 50 EE
Paid leave up to 56
12 weeks unpaid – men days on birth (women)
or women
Paid parental leave
until child has reached
3 to parents, adoptive
parents, other
caregivers
Sick Leave
FMLA – If >50 EE
12 weeks unpaid for
SHC; possible benefits
through a disability
insurance contract
120 days for
temporary incapacity.
Leave for On-The-Job
Injury or Disease
Workers’ Compensation
coverage – varies by
state
Paid leave until able to
return to work
UNEMPLOYMENT RATES
U.S. Unemployment Rate: 6.3% in April 2014
Under 25 Unemployment Rate: 12.5% in March 2014
2010 – 10.6% (Highest since 1980s)
Lithuanian Unemployment Rate: 10.8% in March 2014
Under 25 Unemployment Rate: 20.4% in March 2014
State: North Carolina (NC)
Maximum Weekly Benefit Amount:
$350
Maximum Weeks of benefits: 19
Labor Law:
A Brief Overview
The National Labor Relations Act – Section 7
Protects the right of employees to self-organize, to
join, form or assist labor organizations, to collectively
bargain through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
protective purposes.
The National Labor Relations Act - Section 8
Prohibits employers from engaging in “unfair labor practices”:
 Prohibition of interference with rights guaranteed by Section 7
 Prohibition of employer-sponsored unions, or support or
assistance of any kind to unions.
 Prohibition of discrimination in hiring or firing or terms of
employment of union members.
 Anti-Retaliation provision for employees who engage in protected
activity to assert rights under the Act.
 Requirement that employers bargain with the union selected by
a majority of the employees.
 Regulates picketing and certain other concerted activities.
Section 8: (1947 Amendments )
Prohibits UNIONS from engaging in “unfair labor practices”,
including:
 Interfering with an employee’s Section 7 rights,
 pressuring an employer to discriminate against employee for
membership or non-membership
 Failing to bargain with employer on behalf of represented employees
 Jurisdictional Strikes
 Secondary boycotts or strikes
 Secondary and mass picketing
 Monetary donations by unions to federal political campaigns.
SECTION 301 CLAIMS
LMRA Section 301 provides a cause of action for breach
of a CBA.
Typically arbitrated.
 Federal courts have jurisdiction to determine whether
parties have effectively agreed to arbitrate the dispute.
 If so, arbitrators have jurisdiction over the dispute itself.
QUESTIONS?