Chapter 14 Employent Law
Written By: Matt Sanderson & Jason Edwards -- Edited by Nicholas Schworrer & Shelby Pieper
Revised By: Tiffany DeOrnellis, Robin Martz, Adam Trusty, Josh Sievers, Daniel West
This chapter focuses on the crucial and delicate employer-employee relationship of
today’s workplace. It deals with the latest topics that have attracted much attention from society
including: employment discrimination, employment at will, employee privacy, and common law
claims for wrongful discharge. These topics, along with others, are discussed in depth throughout
the chapter.
I. The Doctrine of Employment at Will
The doctrine of employment at will states that either party in an
employment relationship can terminate the job at any time with good or no
reason at all. However, if an employment contract exists, then both parties are subject to the
terms of that contract. Additionally, employers cannot terminate employees based on
discrimination, family or medical leave, refusal to commit illegal acts, or whistle blowing.
A whistleblower is any person who raises concerns about fraudulent or illegal activities
within an organization. A whistleblower may bring these accusations to another member of the
organization. An example of this would someone telling their supervisor that they witnessed a
fellow employee stealing from the company. An individual may also bring it to the attention of
someone outside of the organization, such as a government regulatory body, a watchdog agency,
or even to the media in some situations. A famous example of a whistleblower that did this
would be Jeffrey Wigand; Wigand revealed his companies manipulation of nicotine in cigarettes
and many other concealed health concerns to the public at large on the television program 60
Minutes.
A. Exceptions
Many states have common law that gives employees some rights to
receive damages for wrongful discharge or unjust dismissal from a job. There
are also employee protections set up in Title VII and various other similar
legislatures.
1. Public Policy Exception
Remember! A
whistle blower is
someone who
alleges that the
company they
work for is
involved in
fraudulent acts or
illegal activities.
Suits against former employers can be brought up and won under the
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public policy exception if the employee was fired because they refused to commit an unlawful
act, had to perform an important public duty such as whistle blowing or jury duty, or were
exercising their legal rights. There may also be some cases dealing with labor contracts with a
union when the employee should bring a suit against their employer.
2. Contracts
A case can also be brought against the employer because the employer broke a contract
with an individual employee. Employees can also bring up charges against employers if the
employers fail to fulfill the promises made to the employees during job interviews, orientation,
or benefit plans. To avoid wrongful termination suits employers must follow the termination
procedures set forth in the employee handbook or by company policy. Fraud can also give rise
to liability.
3. Discrimination Laws.
Discrimination laws limit what an employer can legally do. These laws are discussed
throughout the chapter. Remember, however, that discrimination laws only cover certain
protected categories.
II. Legislation Protecting Employee Health and Well-Being
Workers Compensation Laws are designed to protect workers who are injured on the job
and to provide a means of financial support should they become permanently disabled. Before
Workers Compensation was implemented it was difficult for employees to sue employers for
negligence. Prior to workers compensation, when someone was hired for a job the risk that was
involved within the job was an assumed risk. This meant that a person accepting a position or job
automatically assumed the risks that came along with it. Employees would get hurt and be
financially unable to pay for the medical bills so they would turn to the employers for help. The
employers claimed the employee had assumed the risk by taking the position thus they were not
responsible for the bill. In 1911 state workers compensation statutes were instated to fix these
problems3.
A. Basic Features of Workers Compensation
Workers compensation only protects employees while at work; not independent
contractors. If a worker is not covered by workers compensation, they are covered by a similar
alternative system. The only employers that are exempt from purchasing workers compensation
insurance are employers with three or fewer employers.
Although workers compensation law guidelines may vary from state to state, they all
entail the same basic features. This allows employees to recover under strict liability and
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eliminates the need to prove employer negligence. Workers compensation also eliminates three
classic defenses employers use to deny negligence. The first defense it negates is contributory
negligence. Contributory negligence is a case in which both parties contribute to the action in
question. Secondly, workers compensation eliminates the argument discussed earlier, assumption
of risk. Finally, workers compensation eliminates “the fellow-servant rule.” The fellow-servant
rule states that an employee injured at work has to bring a case against the employee causing the
injury rather than the employer. Workers compensation is the option for immediate action given
to employees who are hurt and have injuries that can be covered by the plan. If an injury is
intentionally brought onto employees by the employers, the case is usually handled outside of
workers compensation (see OSHA).
Studies have shown that workers compensation greatly increases the probability of the
injured employee recovering financially. The recoveries usually include: medical expenses
(including rehabilitation programs), disability benefits, specified recoveries for loss of certain
appendages or body parts, and death benefits are given to the survivors and the dependents of the
dead.
Perhaps the biggest benefit to the employer is that the amount recovered under each
workers compensation case is often less than it would be if it was a negligence suit.
Unfortunately in response to this workers often deny being covered by workers compensation so
they can file a tort case against their employers3.
1. The Work Related Injury Requirement
Employees are only excused from work to recover from work related injuries. Excessive
absences due to non-work related injuries are liable for punishment. To be considered work
related the injury must arise out of the employment or happen during the course of employment.
A close connection between the nature of the job and the injury are required for an injury
to be classified as arising out of the employment. Various tests were created to define the
connection between the injury and the nature of the job. The first test is the increased risk test. In
this test, the injured employee recovers only if “the nature of her job increases her risk of injury
above the risk to which the general public is exposed.” The second test is the positional risk test.
In this test, the employee recovers from injury if the job caused the employee to be at the place
and time where the injury occurred.
To be covered under the course of employment, the injury must have happened within the
time, place, and circumstances of the employment. Courts generally go against supposed cases
claiming injuries and mental problems directly related to horseplay. Courts almost always
recommend that the case be held outside of workers compensation in cases in which the injury is
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self-inflicted. If an employee’s preexisting condition is aggravated, the case is usually covered
under workers compensation.
Invalid Defenses Against Workers Compensation Claims
1. Contributory negligence
Example: A painter does not secure the base of a ladder before using it to paint a
house. The same ladder had one broken step that the employer had not repaired yet. The painter
slipped on the broken step, causing the ladder to fall over since the base had not been secured.
2. Assumption of risk
Example: A painter knows that painting houses involves climbing ladders to upper
stories of houses. By accepting the position, the painter assumes the risk of falling off a ladder.
3. Fellow-servant rule
Example: A painter falls off a ladder because the base of the ladder was not
secured. A fellow painter working on the same house was at fault for this.
None of these defenses are valid, and would result in workers compensation being awarded.
B. The Occupational Safety and Health Act
According to the Supreme Court the Occupational Safety and Health Act of 1970
(OSHA) is “for the purpose of ensuring safe and healthful working conditions for every working
man and woman in the nation.” This act requires employers to provide employees with a
working environment that is free from hazards that may cause death or physical harm. OSHA
administers a set of publicly released requirements that employers must abide by based on their
specific type of business. It is a constitutional right for an employee to be able to request that an
employer be reviewed under OSHA’s standards. OSHA must first have a warrant, and like most
warrants it must have probable cause. These requirements apply to all businesses that deal with
interstate commerce except: the US government, the state and their political subdivisions, and
certain industries regulated by other federal legislation are exempt from this legislation3.
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C. The Family and Medical Leave Act
Congress instated the Family and Medical Leave Act in 1993
and the act “covers those employed for at least 12 months, and for
1,250 hours during those 12 months, by an employer employing 50 or
more employees.” Under this act, those eligible, are entitled to a total of
12 work-weeks of leave during any 12 month period for one or more of
the following reasons: the birth and care of a child, adoptions, care for a
family member with a serious health problem, or an employee’s own
serious health problems. In addition to this, upon the employee’s return, the employer is required
to give the employee the same or an equivalent position. Also, the employer cannot deny the
employee any benefits acquired before the leave began. Top management of the the compony is
excluded from protection.
The U.S. and Australia
are the only
industrialized nations
that do not require
paid maternity leave.
II. Legislation Protecting Wages, Pensions, and Benefits
Social security was instated in reaction to what the executive powers at that time thought
were the dangers of the modern American life (poverty after retirement, unemployment, and the
burdens of widows and fatherless children). The premise of social security is to provide financial
assistance to retired employees. FICA (Federal Insurance Contributions Act) was instated in
order to finance this operation. FICA has the power to make a flat rate tax on all employee
income below a certain base figure. Not only does the employer pay this amount (currently
7.65% of the first $110,000 of income as of 2012), but the employee is required to match the
employer’s payment. If an individual is self-employed then, they are required to pay both parts
of the self-employment tax (15.3%). The self-employment tax covers the liability for FICA of
both the employee and employer in a single tax.
FICA also oversees and funds other types of financial assistance available to workers. It
allots survivor’s benefits to family members of deceased workers, gives disability benefits to the
handicapped, and pays a major portion of all medical benefits for the elderly under the Medicare
System.
The Medicare System is for people age 65 or older. It also covers people younger than 65
with certain disabilities. Essentially the Medicare System does three things. First, it deals with
hospital insurance, helping to cover inpatient care in hospitals, nursing facilities, hospices, and
home health care. Second, Medicare aids in medical insurance. It helps cover doctors’ services,
outpatient care, and some preventative services. Finally, Medicare helps with prescription drug
coverage. Medicare helps cover the cost of prescription drugs to make them more affordable2.
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A. Unemployment Compensation
Unemployment compensation is a system that makes payments to unemployed or displaced
workers. Although unemployment compensation has the same principles throughout the country,
each state has its own guidelines that fall under federal rules. Generally states require that the
employee has been employed for a certain amount of time and has earned a certain amount of
money in order to be eligible for unemployment compensation. However, if an employee is fired
or quits for certain reason, they can be denied benefits. In most states, strikers are not eligible. In
order to continue to receive unemployment benefits, the individual must provide proof that they
are actively seeking employment and are not currently employed. The money is collected from
employers with both a state and federal tax. The amount of tax can be reduced if the employer
has a record of low layoffs. The federal tax is given back to the states which administers the
program (subject to some federal regulation). The amount paid is a certain percentage of income
up to a cap. The time that it is paid is typically 26 weeks though in times of high unemployment
it may be lengthened to 39 or 52 weeks.
B. Employee Retirement Income Security Act of 1974
Prior to 1974, employers were not required to disclose financial information about
pension plans to their employees and often these plans were mismanaged. A few of the most
common abuses were: arbitrarily ending participation in the pension plan, arbitrary benefit
reduction, and inappropriate use of the plan funds. The response to these actions was the
Employee Retirement Income Security Act of 1974 (ERISA). The act is administered by the
Department of Labor and the Internal Revenue Service.
ERISA established a set of standards for pension plans but does not require an employer
to offer such plans to employees. ERISA checks for abuses and requires employers to uphold
the provisions set forth in the pension plan. This act requires that the managers of the pension
funds diversify the plan’s investments to avoid large monetary loss because the employee is
placing trust in the employer to appropriately control the plan assets. ERISA also requires the
administrator to keep accurate records and provide annual reports to the plan participants and
give details of the contents of the report.
Pension plans can provide some tax benefits if they are considered to be a qualified plan.
Qualification entails three requirements. The first is that it must offer a “joint-and-survivor
annuity” option to retirees. This option allows for the retiree to collect a fixed annual amount
until death and then the surviving spouse receives a reduced annual amount until their death.
The second is that the plan cannot discriminate based on compensation level or job title, it must
be equally available to all employees. And finally the plan must follow certain vesting
requirements. Vesting is the point at which an employee is guaranteed certain retirement
benefits no matter if they remain within the employment of the company. ERISA keeps
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employers from extending vesting dates to avoid future pension obligations that they agreed to
for employees who are fired or change jobs3.
Smith has been an employee for Jones Company for seven years. Jones offers their
employees a pension plan. Smith participates in the pension plan offered by Jones. The
following shows how the pension plan could be vested for Smith.
Defined Benefit Pension Plan
Option 1
Option 2
Years of
%
Years of
%
Emp.
Vested
Emp.
Vested
1
0%
1
0%
2
0%
2
0%
3
0%
3
20%
4
0%
4
40%
5
100%
5
60%
6
100%
6
80%
7
100%
7
100%
Chapter 14 Employment Law
Defined Contribution Pension Plan
Option 1
Option 2
Years of
%
Years of % Vested
Emp.
Vested
Emp.
1
0%
1
0%
2
0%
2
20%
3
100%
3
40%
4
100%
4
60%
5
100%
5
80%
6
100%
6
100%
7
100%
7
100%
Page 7
B. The Fair Labor Standards Act of 1938
The Fair Labor Standards Act of 1938 (FLSA) regulates wages and hours by giving employers
two guidelines they must follow. The FLSA sets a minimum wage which changes over time due
to inflation or other factors. The current federal minimum wage is 7.25 per
The Missouri
hour. Missouri’s minimum wage will increase to $7.35 on January 1, 2012.
minimum wage
Employers have to pay the higher rate (state or federal. The FLSA also
as of January 1,
requires that employers pay employees a time-and-a-half (1 ½) rate for
2009 is $7.05
working time over forty (40) hours within a work week. However, there are
per hour.1
some employees, who are exempt from this requirement, including: seasonal
workers, casual babysitters and paid companions for the elderly or infirm,
fishermen, etc.
The FLSA act does not
The coverage of FLSA is complicated. Generally, it applies to
“significantly” sized businesses that are dealing in interstate commerce.
Federal, state and local governments are also included in this coverage.
limit the number of hours
an individual 16 years of
age or older may work in
a workweek.
FLSA forbids child labor and the shipment of goods produced by child labor throughout
the United States. It is deemed oppressive child labor if the company has employed any 14-15
year old children, unless allowed by FLSA. In addition, child labor laws state that a business
may not employ children of the ages of 16-17 to work in occupations deemed hazardous by
FLSA.
IV. Equal Opportunity Legislation
A. Equal Pay Act
The Equal Pay Act (EPA) was amended to the FLSA in 1963 and made it illegal to
discriminate the amount of pay a worker received based on his or her gender. In order for a
worker to have a case against the employer based on the EPA the worker must show they meet
all of the substantially-equal-work requirements. That is to say, the plaintiff is being paid less
than another worker because of sex when they are putting in equal effort, are equally skilled,
have the same amount of responsibilities, and have similar working conditions. It should be
noted that working conditions do not need to be identical, merely similar.
If there are inequalities in pay but the jobs are found to be substantially equal then the
employer must prove the pay difference is based on seniority, merit, quality or quantity of work,
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or anything other than gender. If any of the first three defenses are to be used the employer must
also show a system of how their pay grade works to both genders equally. The fourth is a
catchall for any other foreseeable issues.
If the employee wins a suit filed under the EPA they are to be paid the amount of back
pay lost due to discrimination. It is important to note that minimum wage disputes and overtime
disputes are not covered here. The EPA is enforced by the Equal Employment Opportunity
Commission (EEOC). Violations may also violate the Civil Rights Acts (below).
V. Title VII of the Civil Rights Act
Title VII is part of the 1964 Civil Rights Act that prohibits the discrimination of
employment based on race, color, religion, sex, and nationality in a business’s hiring, firing, job
assignment, pay, training, and most other decisions. Title VII covers any business taking part in
interstate commerce and employing more than 15 people. It should be noted the federal
government is not covered under this act. Referrals by employment agencies are covered under
Title VII no matter what the size of the agency if the employer has more than 15 employees.
Title VII also covers unions and their ability to represent their members.
A. Title VII Procedures
In order for suits to be brought against an employer, the case must first be presented to
the Equal Employment Opportunity Commission (EEOC) or with the proper state agency
depending on the state. The EEOC will then investigate the claim and either attempt to reconcile
the situation or sue if it is deemed that discrimination has occurred within the employment
process. If there is a state agency and they fail in their suit, the plaintiff may still seek the aid of
the EEOC. In the event that the EEOC fails, the plaintiff may still bring a case against the
employer after receiving a “right to sue letter” from the EEOC.
B. Proving Discrimination and Winning the Case
Proving discrimination can be easy in cases where the employer has express policies
discriminating against one of Title VII’s protected classes.While direct evidence of
discrimination is helpful to a case, employers are generally careful not to leave any such
evidence behind.
One way a plaintiff (employee) can win a discrimination case is by showing disparate
treatment of one individual compared to that of another. This is most likely done via a prima
facie case. In order to establish prima facie, an employee must prove: that he or she is a member
of a protected class, that he or she was meeting the employers legitimate expectations during the
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period for which discrimination was said to have been caused, that adverse employment action
occurred, and that the employee treated employees in similar situations who were not members
of protected classes in the same manner. This does not totally prove the plaintiff is correct but is
strong enough to require a counterargument from the defendant (employer). The employer must
then provide evidence that they were nondiscriminatory in their decisions. If the employer is
able to do so the plaintiff must then prove that discrimination actually occurred.
Another way is by proving disparate impact. Disparate impact is when an employer is
not motivated by discriminatory intent, but by merely being neutral causes adverse effects on
employees from a protected class. These suits are most likely to be brought against employers
by groups of people saying that a certain policy of an employer causes disparate impact based on
one of Title VII’s protected groups. If the plaintiff shows disparate impact the defendant loses
unless they can prove that the policy under review directly relates to the workers ability to
perform his or her job. If the plaintiff is then able to show that there is another way that there is
another way to show the employee’s ability to perform certain tasks while being less
discriminatory and the employer refuses to adopt this practice, the plaintiff wins. Written tests,
height or weight requirements, and educational requirements could all be challenged as disparate
impact violations. If, for instance only 30% of a minority class could pass a written test, but
50% of white employees were able to pass the test, then the employee could establish disparate
impact. The burden of proof would then shift to the employer to show the test questions directly
relate to job duties.
C. Defenses
If the plaintiff (employee) is able to show Title VII discrimination there are still some
defenses the defendant (employer) may use in order to win. One of these defenses is seniority
(how long someone has worked with the employer). Also, employers sometimes can legally
discriminate if the reason amounts to a bona fide occupational qualification, or BFOQ. A BFOQ
only applies to positions where the attribute is deemed necessary for the performance of the job.
For example, a Baptist Church is allowed to choose from only Baptist ministers. Another
example is mandatory retirement ages for positions such as bus drivers and airline pilots. The
“merit” defense can also be used. This defense is based on a bona fide merit system based on
quality, or quantity of production or the result of a professionally developed ability test that
follow the EEOC’s Uniform Guidelines on Employee Selection Procedures. Finally, employers
can discriminate based on traits necessary for an employee to effectively complete the work in
question. This is a very narrow defense and must be used carefully as it does not cover
stereotypes, preferences of coworkers or customers, or discriminatory practices to further a goal
that does not concern effective performance.
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If the plaintiff wins, back pay may have to be paid for up to 2 years from the date the
case was filed. Attorney’s fees may also be awarded. The plaintiff may receive punitive or
compensatory damages depending on the case. Decisions of equitable relief including the
rehiring, reinstatement, or retroactive seniority may also be passed down. The court may also
require certain hiring standards based on specific employee characteristics until that
characteristic is represented well in the company. This is only possible if the employer has a
long history of discrimination, the dominant characteristic already within the company is not
restricted during hiring, and it does not force the employer to hire unqualified workers. The
courts, however, are becoming reluctant to order a company to have a mandatory percentage for
discriminated categories.
D. Race Discrimination
Race discrimination protects all races, including whites. However, racial preferences can
be legal if they are in place to correct a racial imbalance within a job core that has been known to
be racist. Affirmative action is a set of public policies developed to help protect against
discrimination against women and minorities. Discrimination policies has come a long way
since first being introduced in 1961 by President John F. Kennedy.
E. National Origin Discrimination
This type of discrimination is based on a person’s country of origin or that person’s
ancestors. It is based on the person’s physical, cultural, or speech characteristics identified with
a certain group of people from a certain region of the world.
F. Religious Discrimination
Religious discrimination is broadly based on the moral beliefs or customs that any person
holds as strongly as more conventional religious beliefs and customs. An employer can only
discriminate against religion if the customs or beliefs cause undue burden at the workplace.
G. Sex Discrimination
Sex discrimination is gender based and generally does not cover homosexuality or
transgender people under Title VII. Employers are subject to lawsuits if they discriminate
against gender, pregnancy, or sexual stereotyping.
Wal-mart was sued in a class action lawsuit by 1.3 million women who claimed that they
were not promoted in a fair fashion and that they were paid less than men for the same work.
While the class action status was successful in the lower courts, the Supreme Court in 2011
overruled the class action case saying that the women did not have common enough complaints.
Thus, women will probably have to sue on an individual basis.
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Originally, if the complaint involves failing to pay the same based on gender today, the
statute of limitations (how long you have to sue) starts with any payment (changed with the
2009). The law gives one 6 months to sue. Lilly Ledbetter Act overrided a Supreme Court
decision that said the statute of limitations after the decision was made to pay someone less
based on gender (around the time of the first lower payment was made). The law is named after
a woman, a supervisor at a Goodyear plant, lost a Supreme Court case who lost because she
waited long to sue.
1. Sexual Harassment
Sexual harassment cases arise from any undesirable sexual advances whether they are
physical or verbal. They can be observed by and can be committed by anyone in the workplace,
including customers. The first form of sexual harassment is quid pro quo. This is when a
sexual favor is requested by the defendant and due to the plaintiff’s refusal to commit the said
action their job faces consequences. Quid pro quo harassment can only be committed by a
supervisor since only they are in position to make the defendant suffer job consequences.
The second type is hostile environmental harassment and results from one employee’s
sexual advances causing another employee to feel uncomfortable in the working environment.
The offensive actions must be drastic enough to the normal person to cause them to feel
uncomfortable in the environment.
2. Employer Liability
An employer is usually only liable for sexual harassment cases involving coworkers
when they knew about the case and did nothing to stop it from happening. When a supervisor
commits sexual harassment the company can face charges if the plaintiff’s job is altered due to
consequences of the harassment. If no change to the plaintiff’s job occurs the employer may not
be held liable if they can prove they did everything they could to prevent the situation from
happening or the plaintiff did not take advantage of any of the preventative measures set forth by
the employer. While sexual orientation is generally not covered by this law, sexual harassment
based on sexual orientation (or the appearance thereof), is covered. Thus, men can complain
against men and women can complain against women.
H. Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA), enacted in 1967, prevents
discrimination based on age against employees who are at least 40 years old. However, it is not
illegal for employers to favor older employees over younger ones. It covers all businesses
involved in interstate commerce and employing at least 20 people. It does not cover people
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within state and local governments.
Proving age discrimination can be easy if sufficient
evidence is available. The ADEA requires employers to have a good reason for disciplinary
actions or firings and prohibits the use of age as a reason. There may be a Bona Fide
Occupational Qualification defense that the employer can use but sufficient evidence and studies
are needed for the case to be dismissed. Bona fide occupational qualification means that the
defendant (employer) must prove that a certain group/class (age) of people would be unable to
perform the job safely and efficiently. If the court finds the employer guilty of age
discrimination they can require payment of unpaid back wages, liquidated damages, court fees,
and equitable relief. Generally, punitive damages are not given out in these cases.
I. The Americans with Disabilities Act
Title I of the Americans with Disabilities Act (ADA) covers employers with 15 or more
employees and engaged in interstate commerce.
It prohibits these employers from
discriminating against qualified individuals simply because they have a disability. A disability is
defined as a physical or mental impairment that limits one or more of the person’s life activities,
a record of such impairment, or being regarded as having these impairments. The ADA covers
those who are capable of completing the tasks asked of them in their job or those that are capable
of completing the tasks if reasonably accommodated. Reasonable accommodation includes
making things accessible, buying new equipment, and modifying work schedules as needed. The
employer is covered if the accommodation causes undue hardship or the person is not able to
execute their jobs as needed.
J. Executive Order 11246
Enforced by the Labor Department Office of Federal Contract Compliance Programs, this
act forbids race, color, origin, religion, and sex discrimination by any executive department or
agency in the United States government. Equal employment will be given to all who apply and
or work for any governmental sector.
K. State Antidiscrimination Laws
Most states have laws comparable to the laws stated above. Most state laws will go into
much more depth concerning what will happen in that specific state.
VI. Employee Privacy
Employee privacy laws protect employees from actions taken by a company that invade
their private lives. The Employee Polygraph Protection Act passed in 1988 states that employers
may not require employees to take a polygraph test, use or refer to polygraph tests the employee
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has taken previously, or discriminate against any employee because of the results of a lie detector
test. However, federal, state, and local governments along with certain national defense
employers, certain security firms, and controlled substance distributors may run certain tests that
are allowed by this set of laws. Another exception is if an employer has “probable cause” to
think that one or a small group has committed a violation.
A. Drug and Alcohol Tests
Drug and alcohol tests are generally legal. In some states these tests may be highly
regulated. In some fields the government may require certain tests to be run at certain times and
under certain circumstances.
B. Employer Searches
Employers can search your desk and other belongings while at work if they have reason
to believe you are involved in a crime. No warrant or probable cause is necessary. The search
cannot extend outside the workplace.
C. Records and References
Personnel records must be kept safe and confidential. If a reference is requested from a
previous employer, the reference must be accurate and truthful.
D. Employer Monitoring
It has become more common for employers to monitor employees at work via high tech
surveillance. This is legal in most instances, but may be found to be illegal in some wire tapping
cases. Employers are starting to tell their employees they will be monitored in various ways in
order to avoid legal problems.
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Review Questions
1. What are some exceptions to the doctrine of employment at will?
2. What is workers compensation?
3. Which classic employer negligence defenses are negated under workers
compensation law?
4. What is the purpose of the Occupational Safety and Health Act?
5. Under the Family and Medical Leave Act, how long and for what reasons are
employees allowed to take leave without termination?
6. What is social security and how is it financed?
7. What requirements does the Employment Retirement Income Security Act
(ERISA) set for managers of pension plans?
8. How does the Fair Labor Standards Act regulate wages and work hours?
9. For what reasons may an individual receive a higher compensation level than
another employee under the Equal Pay Act?
10. What types of discrimination are covered under Title VII of the Civil Rights
Act?
11. For which reasons can an employee allege discrimination and what are possible
defenses of the employer?
12. What are the types of sexual harassment and what are the employer’s liabilities in
these cases?
13. Who is not covered under the Age Discrimination in Employment Act?
14. According to the Americans with Disabilities Act, what is a disability and what
reasonable accommodations must be made to individual with disabilities?
15. What are some things that employee privacy laws protect individuals from?
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Review Question Answers
1. Exceptions to the doctrine of employment at will include: cases of wrongful termination
based on discrimination, whistle blowing, family or medical leave, or failure to follow
established termination procedures.
2. Workers compensation is a means of providing financial support to employees who
become hurt on the job and are no longer able to work.
3. Defenses that are negated by worker compensation laws include: contributory negligence,
assumption of risk, and the fellow-servant rule (a requirement that suits must be brought
against a fellow employee responsible for injury instead of the employer)
4. To ensure that employees have a safe working environment free from hazards that may
cause death or physical harm.
5.
Employees may take 12 work weeks within any 12 month period for the birth of a
child, adoption of a child, the need to care for a family member with a serious health
condition or an employee’s own medical condition.
6. Social security is a program that provides benefits to unemployed or retired workers to
alleviate economic burden. It is financed by the Federal Insurance Contributions Act
(FICA), an act that places a flat tax on both employees and employers.
7. ERISA requires managers to diversify pension plan’s investments to avoid large
monetary losses and to keep accurate records and make annual reports to their
participants.
8. The FLSA sets a minimum wage that must be paid which fluctuates based on inflation
and sets the standard work week at 40 hours, dictating that employees must be
compensated one and a half times their standard wage for any hours above 40.
9. An employee may receive higher compensation for: seniority, merit, quality or quantity
of work, and anything other than gender.
10. Race, color, religion, sex and nationality discrimination are covered under Title VII of the
Civil Rights Act.
11. An employee may claim that discrimination has occurred in the case of: disparate
treatment of one individual when compared to another or disparate impact of company
policy. The employer may defend themselves by providing proof that a bona fide
occupational qualification exists or that the disparate treatment is based on a bona fide
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merit system. In limited cases the employer may claim that the discrimination stems
from a trait necessary to effectively complete the work in question.
12. The two types of sexual harassment are: quid pro quo harassment (negative job
consequences resulting from refusal to perform a requested sexual favor) and hostile
environment harassment (unwanted sexual advances that create an uncomfortable work
environment). Employers are liable under sexual harassment suits if they had knowledge
of the harassment and failed to intervene or if the plaintiff’s job was altered due to
harassment.
13. The Age Discrimination in Employment Act does not cover those under the age of 40 and
those employed within state and local governments.
14. A disability is a physical or mental impairment that limits one or more of the person’s life
activities. Reasonable accommodations include: making things accessible, buying new
equipment, or modifying work schedules, as long as these accommodations do not cause
undue hardship to the employer.
15. Under employee privacy laws, employers may not require employees to take a polygraph
test, personnel records must be kept safe and confidential and wire tapping is illegal in
most cases.
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