OVERVIEW OF 15.1
 The American System: Employment “at will.”
 Employee rights to privacy in “at will” system.
 Term contracts and “just cause.”
 Some exceptions to “at will” employment.
 Controverting public policy
 Discrimination

EMPLOYMENT “AT WILL”
 About 51 percent of people aged 16-24 were employed for the month of July
2014.
 In America, when you start working at a new job, there is typically no agreed upon length of time of the job.

DISCUSS YOU EMPLOYMENT EXPERIENCE
 Who has a job?
 How were you hired?
 Were you given a contract to sign?
 If you were given a contract to sign, what protection did you receive in terms of : health, safety, privacy, and equal opportunity?

EMPLOYMENT “AT WILL”
 An employer or employee can end an employment relationship at any time, for any reason or for no reason, with or without notice

EMPLOYMENT “AT WILL”
 Layoffs, downsizing, and outsourcing are all based on this principle: you can be fired for any reason at any time under most employment contracts.

EMPLOYMENT “AT WILL”


EXCEPTIONS TO EMPLOYMENT-AT-WILL
 Union Employees
 Employment Contracts
 Protected Class of Employees

SITUATIONS OUTSIDE EMPLOYMENT
“AT WILL”
 Unionized Employees
 Union: Organization of employees formed to promote the welfare of its members.
 What type of professions are in unions?
 Teachers
 Firefighter and police officers
 Factory workers
 Construction workers
 Utility workers

SITUATIONS OUTSIDE EMPLOYMENT
“AT WILL”
 Individuals with Employment Contracts
 Figures such as professional athletes and entertainment figures negotiate their own contract
 Business and educational institutions may also operate this way
 Can prevent you from leaving a job if you want to work somewhere else

SITUATIONS OUTSIDE EMPLOYMENT
“AT WILL”
 Protected Class of Employees
 Women, racial minorities, people with disabilities, veterans
 They cannot be fired for any reason based on their: race, color, creed, national origin, or gender

ADDITIONAL EXCEPTIONS TO “AT WILL”
 Again, general rule: okay to fire you any time for any reason.
 There are a few ways your employer cannot fire you:
 If the reason for your firing contravenes public policy; or
 If the firing is discriminatory.

EXCEPTIONS TO “AT WILL”
1.
If the reason for your firing contravenes public policy.
Case #1: Fulfilling a public obligation: jury duty

EXCEPTIONS TO “AT WILL”
Case #1: Jury Duty
Liz Lemon gets called for jury duty. Jack tells her she can’t be gone for jury duty. He tells her to dress up like a crazy person and get out of it. “Do whatever it takes to get out of jury duty. If you don’t get out of that jury, you’re fired.” Liz tries, but gets selected for the jury. Can Jack fire her?
 No. Nees v. Hocks (Or. 1975).

EXCEPTIONS TO “AT WILL”
1.
If the reason for your firing contravenes public policy.
Case #2: Committing an illegal act:

EXCEPTIONS TO “AT WILL”
Jack tells Kenneth he needs to phone in a death threat to
President Obama. Kenneth knows this is a federal crime with huge penalties. Jack tells Kenneth he has to do it anyway or
Jack will fire him. Kenneth still refuses and Jack fires him.



EXCEPTIONS TO “AT WILL”
2. If the reason for the firing is discriminatory.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
 Several federal statutes prohibit discrimination in employment.
 Title VII of the Civil Rights Act of 1964.
 Civil War Reconstruction Statutes.
 The Age Discrimination in Employment Act of 1967
(ADEA).
 Americans with
Disabilities Act of 1990
(ADA).
Ferdie

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
 Statutes bar discrimination on the basis of:
 Race
 National origin
 Ethnicity
 Religion
 Gender
 Age
 Disability

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
1.
“Individual discriminatory treatment”
Case #1: Sven the Dane
Sven, a mechanic for Boeing, gets laid off. He thinks he was laid off because he was Danish. He reapplies for the job. He thinks he’ll get it because he is qualified. He doesn’t get it. The job remains open.
Boeing hires Ole, a Norwegian.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
1.
“Individual discriminatory treatment”
Case #1: Sven the Dane
Sven sues Boeing. He claims he was passed over because of his ethnicity. Boeing claims it didn’t hire
Sven because of his criminal record of stealing from employers. Sven thinks this reason is a pretext.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
1.
“Individual discriminatory treatment”
Case #1: Sven the Dane
 Must show he was passed over and was qualified.
 Employer can respond with other reason.
 Sven can then prove pretext.
 “You dumb dirty Dane.”
 McDonnell-Douglas v. Green.

EMPLOYEE PRIVACY IN “AT-WILL” SYSTEM
Drug Testing
 In 2004, over 61% of major U.S. firms use drug testing.
 Drug-Free Workplace Act of 1988:
 Requires government employees and federal contractors to be drug-free.
 Is this a violation of your privacy?
 Mixed treatment in the courts.
 In public jobs, the court relies on the Fourth Amendment to protect you. (Unreasonable Searches and Seizures)
 In private jobs, courts give a bit less protection.

EMPLOYEE PRIVACY IN “AT-WILL” SYSTEM

 Volunteering at the AIDS foundation. Brunner v. Al Attar (1990).
 Going to night school. Scroghan v. Kraftco
(1977).
 Smoking. Grusendorf v. Oklahoma City (1987).
 Smokers 34% more absenteeism, 40% more occupational injuries, 55% more disciplinary incidents.

EMPLOYMENT AT WILL V. TERM
CONTRACTS
Most contracts are at-will. But a small percentage do have time “terms.”
Employment Contracts
At Will
Term Contracts

TERM CONTRACTS
 In 2005, Tyrone Willingham signed a five-year contract to coach the Washington Husky Football
Team.
 In 2009, Jim Mora, Jr. signed a five-year contract to coach the Seattle Seahawks.
 In 2008, Don Wakamatsu signed a four-year contract to manage the Seattle Mariners.

 Mora signed 5-year contract in January 2009.
 But in January 2010, only one year later…

TERM CONTRACTS


TERM CONTRACTS
 Only two ways you can fire a coach (or anyone else with a term contract) before the end of the term:
1.
For “just cause.”
2.
By “buying them out” and paying them as if they were still coaching/working.

TERM CONTRACTS: JUST CAUSE
 If you have a term contract, you can be fired only for “just cause.”
 Basically means the employee is doing very unreasonably unsatisfactory work quality and work behavior.

TERM CONTRACTS

 Four factors:
 Regular attendance;
 Obedience to reasonable work rules;
 Reasonable quantity and quality of work;
 Avoidance of conduct that hurts employer’s business.

TERM CONTRACTS
 Were these firings for “just cause?”
 Huskies were 0-12.
 Seahawks were 5-11.
 Mariners ended up losing 100 games.
 Still, none were for just cause.

TERM CONTRACTS


BELL RINGER
 Do you have a family member who had to leave a job because they were laid off, injured, or retired?
 What benefits were they entitled to?

HEALTH AND SAFETY
 The government has passed numerous laws to regulate employment conditions to protect employees in the work place.
 Employee right can be divided into 4 areas:
 Health and Safety Protections
 Fair Wages and Benefits
 Privacy
 Equal Employment Opportunity in the workplace

OCCUPATIONAL SAFETY AND HEALTH ACT
(OSHA)
 Federal government agency that regulates health and safety standards for companies in the USA.
 OSHA duties:
 Inspects workplace at random
 Investigates written employee complaints, workplace deaths, and disasters
 Protects employees from being fired for filing complaints
 Levies fines for rule violations

ENVIRONMENTAL POLICY ACT
 Passed in 1969
 Established the Environmental Protection Agency
(EPA)
 Purpose: to set up a national policy for fighting pollution, and to protect the environment and human health from exposure to hazardous chemicals and waste.
 The EPA encourages voluntary compliance by businesses
 The EPA can act against companies that pollute the environment

FAIR WAGES AND BENEFITS
 The Fair Labor Standard Act
 Equal Pay Act
 Employment Retirement Income Security
Act
 Family and Medical Leave Act
 Social Security Act
 Unemployment Compensation
 Worker’s Compensation

FAIR LABOR STANDARD ACT
 Requires certain employers, such as hospitals, retail businesses, restaurants, and schools to pay their workers a minimum hourly wage and time-and-a-half for all work over 40 hours per week.
 Illinois Minimum Wage: $8.25/hour (18 and older); $7.75/hour for 17 and younger
 Overtime: 1.5 times regulate rate of pay
 They also regulate the employment of minors

EQUAL PAY ACT
 The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work . The jobs need not be identical, but they must be substantially equal.
 All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.
 The Equal Pay rule covers:
 Hourly workers
 Executives
 Administrators
 Professional employees
 Outside sales people who receive salary or commission

EMPLOYMENT RETIREMENT INCOME
SECURITY ACT
 Prevents the abuse of employee pension plans
 Pension : a program established by an employer or a union to provide income to employees after they retire.
 The act requires employers to place employee pension contributions in a trust fund outside of the employer’s control.
 It came about because some employers failed to invest employees retirement funds wisely or used the money for their own business expenses

THE FAMILY AND MEDICAL LEAVE ACT
 An employee of a company with at least 50 employees is entitles to 12 weeks of unpaid leave during any 12 month period to care for a new child or a relative with a serious medical condition.
 The employee is entitled to return to his or her previous job or an equivalent job with the same pay and benefits
 The employee must have 1 year of service with the company to be eligible

THE SOCIAL SECURITY ACT
 Social Security: A government program that provides continuing income to workers and their dependent when their earnings stop or are reduced because of retirement, disability, or death.
 The Social Security Act set up a social insurance program funded by contributions from both employers and employees.
 People become eligible to receive social security benefits by working for a certain time period or by being a dependent of a person who meets that requirement.
 http://www.treasury.gov/resource-center/economic-policy/ssmedicare/Documents/post.pdf

UNEMPLOYMENT COMPENSATION
 A system of government payments to people who are out of work and looking for a job.
 The program is funded by having employers pay payroll taxes or insurance premiums.
 Each state determines the tax rate employers must pay and the amount an unemployed worker can receive.
 Unemployed workers must apply at state employment offices
 A person can be disqualified if: they don’t accept a suitable job, if their unemployment is due to a strike, if they were discharged for misconduct, or if they voluntarily quit their job.

WORKER’S COMPENSATION
 An insurance program that provides income for workers who are injured on the job or develop a disability or disease as a result of their job.
 Law vary by state
 Employers pay an insurance premium to a company that will provide the benefits to employees if needed.

EMPLOYEE PRIVACY RIGHTS

THE FEDERAL PRIVACY ACT
 Protects the privacy of government workers, but not workers in the private sectors.
 It gives government employees the right to know what is in their employment files, to restrict access to their files, and to fix any mistake they might find in their files.

THE DRUG-FREE WORKPLACE ACT
 Applies to companies that have contracts with the Federal government, which aims to create a drug free work environment .
 Drug testing is NOT required, but if a drug test is given improperly, it can violate the 4 th amendment (unreasonable searches and seizures).

THE EMPLOYEE POLYGRAPH PROTECTION
ACT
 Prohibits employers from using lie detectors for the screening of employment applications.
 It also prohibits the random testing of employees.
 Exceptions:
 Business involved in security or the handling of controlled substances.
 Drug firms and private investigation companies are also permitted to use polygraph tests

CIVIL RIGHTS ACT OF 1964

 Race
 Skin color
 Religion
 Sex (including pregnancy)
 National origin

DISPARATE TREATMENT/IMPACT
 Disparate Treatment
 When an employer intentionally discriminates against an individual or a group of individuals belonging to a protected class.
 Example: Policy against hiring female engineers or male nurses
 Disparate Impact
 When an employer has an employment policy that appears neutral on the surface but has and unfair impact on members of a protected class.
 Example: Applicants who are required to be 6 feet tall-
Discrimination especially to women.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
Systemic Disparate Impact
Case #2: The Degree Requirement
Seattle City Light has huge crews of people who dig ditches. The only real requirement for this job is to be good with a shovel.
But Seattle City Light requires ditch -diggers to have a college degree, even though it is unrelated to ditch -digging. This results in only Norwegians working on these crews and no Danes.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
 Systemic Disparate Impact
The Danes sue. Seattle City Light says it’s always had this requirement and certainly doesn’t have it in place to discriminate against Danes.


EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
 Systemic Disparate Impact
 Griggs v. Duke Power (1971).
 Doesn’t matter what company’s intent was.
 If you have a test or other requirement that creates a disparate impact, you have to have a business necessity for doing so.
 The test must be related to the job.
 Degree requirement not related to ditchdigging.

PREGNANCY DISCRIMINATION ACT
 Makes it unlawful to discriminate against a woman because of pregnancy or childbirth .
 An employer cannot create an employee benefits package that discriminates against women who are pregnant
 Employers should not establish maternity policies specifically for women who are pregnant. Pregnant women needing to take a leave should be treated as any other disability needing leave time.

IMMIGRATION REFORM ACT
 Makes employers responsible for verifying the identity and employment eligibility of all employers.
 It applies to U.S. citizens, permanent residents and, nonimmigrant visa holders.
 ALL job applicants must present original documentation, and if hired, they must sign an employment eligibility verification form in front of a supervisor or Human Resource Manager.

AGE DISCRIMINATION IN EMPLOYMENT
ACT
 Applies to employment agencies with 20 or more employees or labor unions with 25 or more employees
 The Act forbids discrimination against any person aged 40 and older in hiring, firing, or other employment decisions.
 The law does not apply if age is a true job qualification
 Example: modeling children’s clothing

AMERICANS WITH DISABILITIES ACT
 Forbids discrimination on the basis of a disability if the disabled individual can do the essential functions of a job.
 Employers cannot discriminate against those with disabilities when screening or hiring, granting promotions, offering pay raises, or offering on-the-job-training opportunities.

SEXUAL HARASSMENT
 Can occur either through quid pro quo activity or through the creation of a hostile working environment.
 Quid pro quo-
 When one individual demands sexual favors from another worker in exchange for something employment related, such as a raise or promotion.
 Hostile working environment
 Exists when a pattern of severe and pervasive sexually demeaning behavior has altered the workplace, making it a distressing, humiliation, or hostile place.
 Includes: sexually explicit comments, jokes, photographs, cartoons, posters, or gestures.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
Sexual harassment and sex discrimination
Case #3: Quid Pro Quo
Elle Woods works at a law firm. The partner who runs the firm makes unwelcome sexual advances to Elle. He tells her she will be promoted if she has sex with him, and he’ll fire her if she doesn’t have sex with him.
 Can he do that?
 No.

EXCEPTIONS TO “AT WILL”:
DISCRIMINATION
Sexual Harassment
Later, Elle Woods is at work at the law firm, and many of the men are being gross. They aren’t coming onto her or demanding sexual favors. But they are making a lot of misogynistic remarks, telling terrible jokes about women, and being very graphic in talking about sex and women they’d like to “score” with.
 Is this sex discrimination that Elle can sue over?
 Yes.

EMPLOYMENT LAW REVIEW PROBLEM
Tiger Woods and his ex-wife, Elin Woods, have separated and divorced after revelations of Tiger’s infidelity. Elin has moved to
Seattle and gotten a job as a server at Top Pot donuts, the greatest restaurant in the history of the world. She did not agree upon any specified amount of time in accepting the job.
Her manager, a deeply moral person who doesn’t believe in divorce, learns that Elin is a divorcee. She immediately fires
Elin. Can she do that?
 Yes.

EMPLOYMENT LAW REVIEW PROBLEM
Tiger had an endorsement deal with Dick’s hamburgers to serve as spokesperson. The deal was set for $1 million per year for four years. The contract allowed Dick’s to end the agreement unilaterally “for cause” but did not explain what circumstances could count as “cause.” After Tiger’s many sexual affairs were revealed publicly, Dick’s ended the agreement in the second year, claiming it ended the contract “for cause.” Dick’s would have owed Tiger $2 million for the next two years.
 Does Tiger’s personal infidelity count as “cause” for firing?
 Should Dick’s have to “buyout” Tiger’s contract?

EMPLOYMENT LAW REVIEW PROBLEM
Tiger decides to take a year off from golf and work as an instructor at the Green Lake Pitch and Putt. He applies for the job. He is, quite obviously, very qualified to be a golf instructor. He is passed over the for the job, and the course hires Annika Sorenstam, a famous female golfer, instead.
Tiger has a hunch that he was passed over because he’s a man, but he has no proof. The golf course says it hired
Annika because she has a better short game and is thus more qualified.
 If Tiger has no other proof, can he win his case for sex discrimination?
 What if he finds out that only women work at the course?
 What if he finds out that the female manager runs a sexist blog that includes crude epithets against men?

EMPLOYMENT LAW REVIEW PROBLEM
After being fired from Top Pot, Elin decides to try her hand at being a bouncer. She applies to be a bouncer with the company that owns several bars in Seattle, including the Little Red Hen.
Upon filling out the application, she finds a job requirement that “all applicants be at least 6’ 3” tall.” She does her research and finds that, because of this height requirement, all the company’s bouncers are men. The company claims it has no bias against women, it just wants tall people as bouncers.
 Can she sue for disparate impact sex discrimination?