CHAPTER 29 Employment Law

“I wouldn’t want to live unless I could work for a living.” Quote of the Day “I wouldn’t want to live unless I could work for a living.” -- Erle Stanley Gardner mystery writer, creator of Perry Mason

History of Employment Law In pre-industrial society, most people followed their parents’ occupations. Employers knew their workers and expectations were understood. With the industrial revolution came changes in employment law too, and a trend toward employment contracts. Without a contract, a worker was an employee at will. An employee at will can be fired for a good reason, a bad reason or no reason at all.

National Labor Relations Act NLRA (or the Wagner Act): Created the National Labor Relations Board to enforce labor laws, Prohibits employers from penalizing workers who engage in union activity (for example, joining a preexisting union or forming a new one); and Requires employers to “bargain in good faith” with unions.

Family and Medical Leave Act (FMLA) In 1993, Congress passed the Family and Medical Leave Act (FMLA), which guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or medical emergencies for themselves or a family member.

COBRA The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides that former employees of companies with 20 or more employees must be allowed to continue their health insurance for 18 months after leaving their job. The catch is that employees must pay for it themselves, up to 102 percent of the cost. (The extra 2 percent covers administrative expenses.)

Wrongful Discharge Wrongful discharge prohibits an employer from firing a worker for a bad reason. The public policy rule prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities, such as: Refusing to Violate the Law Exercising a Legal Right Performing a Legal Duty (like jury duty)

Contract Law Truth in Hiring An employee handbook creates a contract. Oral promises made during the hiring process can be enforceable. Employers may be liable for promises that they cannot keep or for failure to disclose important information in the hiring process. An employee handbook creates a contract. Covenant of Good Faith & Fair Dealing In some cases, courts will imply a covenant of good faith and fair dealing in an at-will employment contract.

Defamation Employers may be liable for defamation when they give false and unfavorable references about a former employee. More than half of the states recognize a qualified privilege (protection unless the statement is known false or given in ill will) for former employers who give references. Employers are generally not required to give any information about former employees, but may sometimes be held liable if potentially dangerous information is withheld.

Intentional Infliction of Emotional Distress Employers who condone cruel treatment of their workers face liability under the tort of intentional infliction of emotional distress.

Whistleblowers Employees who disclose illegal behavior of their employers. The False Claims Act protects those who refuse to sign inaccurate reports. The Civil Service Reform Act and the Whistleblower Protection Act protect Federal employees who report wrongdoings. The Sarbanes-Oxley Act of 2002 protects employees of publicly traded companies who provide evidence of fraud to investigators.

Other Protection for Whistleblowers State Statutes protect whistleblowers from retaliation from employers in all fifty states. Degree of protection varies. Common law typically prohibits the discharge of employees who report illegal activity that relates to their own jobs.

Workplace Safety In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions. Sets specific health and safety standards. Obliges employers to keep workplace “free from recognized hazards.” Requires records of all injuries and accidents. Allows inspection of workplaces and fines for unsafe conditions.

Employee Privacy In many places, off-duty conduct cannot be regulated by the employer. Alcohol and drug testing is allowed by private businesses; government employers may test if signs of use are seen or if job safety is an issue. Employers may not require or even suggest the use of lie detector tests, except in investigations of crimes.

Electronic Monitoring of the Workplace The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor workers’ telephone calls, e-mail messages, and even “instant messages” if: the employee consents, the monitoring occurs in the ordinary course of business, or in the case of e-mail, the employer provides the e-mail system.

Immigration Because of discrimination laws, employers should not ask about an applicant’s country of origin, but they are permitted to inquire if the person is authorized to work in the United States.

Financial Protection Fair Labor Standards Workers’ Compensation Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages (minimum wage and overtime pay) and limits child labor. Workers’ Compensation Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work.

Financial Protection (cont’d) Social Security Currently, the Social Security system pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers. Pension Benefits In 1974, Congress passed the Employee Retirement Income Security Act (ERISA) to protect workers covered by private pension plans.

Employment Discrimination Under the Equal Pay Act of 1963, an employee may not be paid a lesser rate (for equal work) than opposite sex employees. Title VII of the Civil Rights Act of 1964 Prohibits employers from discriminating on the basis of sex, race, color, religion, or national origin. Employers must make reasonable accommodation for a worker’s religious beliefs unless the request would cause undue hardship. Affirmative action is not required by Title VII, nor is it prohibited.

Proof of Discrimination There are two ways a plaintiff can prove a charge of discrimination: Disparate Treatment: The plaintiff must show evidence that the defendant discriminated based on a protected trait; then the defendant must present evidence that the protected trait was not the reason for the disparate treatment. Disparate Impact: The plaintiff must show evidence that the policy has a greater impact on a protected group than a non-protected group; the defendant must show that the policy is needed for the job.

Defenses to Charges of Discrimination There are three possible defenses for a charge of discrimination: Merit Seniority Bona Fide Occupational Qualification

Sexual Harassment Involves unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. Hostile Work Environment A claim of sexual harassment might be valid if sexual innuendo is so pervasive that it interferes with an employee’s ability to do her (or his!) job. Pregnancy An employer may not fire or refuse to hire a woman just because she is pregnant.

Transgender & Sexual Preference Discrimination While federal anti-discrimination laws do not protect employees from these two forms of discrimination, many state laws and municipal codes do extend such protection.

Age Discrimination The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against employees or job applicants who are at least 40 years old. Forced retirement at a certain age is prohibited except for police and top-level corporate executives.

Americans with Disabilities Act A disabled person is someone with a physical or mental impairment that substantially limits a major life activity, or someone who is regarded as having such an impairment. An employer may not disqualify a job applicant or employee because of disability as long as she can, with reasonable accommodation (would not create undue hardship) perform the essential functions of the job.

“Employment law is an important -- and difficult -- area of law to study. It affects almost everyone and it is changing rapidly.”