Employment Law Chapter 18

Employment At Will Common law doctrine under which either party may terminate employment relationship at any time for any reason (or no reason).

Employment At Will Exceptions in the case of: –Employment contracts –Public policy such as whistleblower protection

Whistleblower Protection Act Prohibits an employer from terminating an employee for refusing to perform an illegal or for reporting illegal conduct to proper authorities. Both federal and state provisions.

Fair Labor Standards Act Minimum Wage - lowest wage that an employer may pay an hourly-wage employee ($7.25 per hour as July 2009). Overtime Pay - any hours worked in excess of 40 hours per week eligible for time and one-half pay (except for exempt employees) Child Labor - certain occupations prohibited for under 16 year-olds

Occupational Safety and Health Act (OSHA) Federal agency empowered to promulgate workplace health and safety standards, to conduct workplace inspections, and to investigate employee complaints Employers must promptly report any workplace accident as a result of which an employee was killed or at least five employees were hospitalized

Social Security Act Government-assured supplemental income for persons (i) over the age of 65 years, (ii) their survivors, and (iii) disabled persons Also provides Medicare - Government- administered health insurance program for those eligible for social security.

Family and Medical Leave Act Federal law requiring employers with 50 + employees to provide up to 12 weeks of family or medical leave during any twelve-month period. During leave, employer must continue to provide benefits to the employee but is not required to pay the employee while on leave.

COBRA COBRA prohibits the discontinuance of insurance benefits of workers who have voluntarily or involuntarily been separated from work, unless the involuntary separation was on the basis of gross misconduct. Employers must comply if they have more than 20 employees.

Workers’ Compensation Laws State laws establishing administrative procedure for compensating workers for workplace injuries in the course of employment, regardless of fault. Payments for medical expenses and a portion of lost wages. No compensation for pain and suffering

Employee Privacy Rights Electronic Monitoring in the Workplace. –Electronic Communications Privacy Act allows employers to monitor electronic communications in the workplace. –But it prohibits intentional interception of personal communications. –ECPA does permit employers to monitor employee electronic communications in the course of business.

Employee Privacy Rights Electronic Performance Surveillance. –Most limitations can be avoided if the employer informs employees that surveillance will occur. Screening Procedures. –Application question must have some reasonable connection to the job sought. Privacy Expectations and systems –Courts generally hold for employers.

Employment Discrimination Title VII of the Civil Rights Act (1964) prohibits job discrimination based on –Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability.

Title VII of Civil Rights Act Disparate-Treatment Discrimination –Intentional discrimination against members of a protected class; or Disparate Impact Discrimination –Discrimination resulting from practices or procedures which, although not facially discriminatory, have the effect of discriminating against members of a protected class

Title VII of Civil Rights Act To prevail on a disparate impact claims, a plaintiff must prove : –member of a protected class –rejected, demoted, or terminated by the employer –position subsequently filled with a person not in a protected class

Title VII of Civil Rights Act Disparate impact has been found in the following job application requirements: –arrest records –credit history –general education background

Title VII of Civil Rights Act Pregnancy -- women who are pregnant, have recently given birth, or have a medical condition related to pregnancy or childbirth must be treated the same as any other employee who is temporarily unable to perform some or all job functions.

Equal Pay Act Federal law prohibits gender-based differences in wages paid for equal work on jobs whose performance requires equal skill, effort, and responsibility under similar conditions.

Sexual Harassment Quid-Pro-Quo Sexual Harassment –Granting employment, job promotions, or other benefits in return for sexual favors, or refusing (or threatening refusal) to hire, promote, or extend other employment benefits if sexual favors are refused.

Sexual Harassment Hostile Environment Harassment –Language or conduct that is so sexually offensive that it creates a hostile working environment.

Sexual Harassment Sources of Harassment –Employers are generally liable for sexual harassment by managers and supervisory employees regardless of the employer’s knowledge of the harassment.

Sexual Harassment Sources of Harassment –Employers are generally liable for sexual harassment by an employee’s co-workers only if the employer knew or should have known about the harassment and failed to take remedial action.

Age Discrimination Age Discrimination in Employment Act (“ADEA”) –Federal law prohibiting (i) employment discrimination on the basis of age against persons 40 years of age and older, and (ii) mandatory retirement for non-managerial employees.

Age Discrimination In order to prevail, a plaintiff must show the following: –member of the protected age group at the time of the employment decision –qualified for the position –discharged, denied employment, or denied promotion under circumstances giving rise to a reasonable inference of discrimination

Disability Discrimination Americans with Disabilities Act (“ADA”) –Federal law prohibiting discrimination in hiring, promotion, and discharge against persons with disabilities.

Disability Discrimination The ADA defines a “disability” as: –A mental or physical impairment that substantially limits one or more major life activities –A record of such impairment, or –Being regarded as having such an impairment.

Disability Discrimination Employers are required by the ADA to reasonably accommodate a disability of an employee or job applicant who is otherwise qualified to perform the essential functions of the job in question. Cannot create undue hardship on employer

Enforcement of Laws File claim with Equal Employment Opportunity Commission (EEOC) File claim with local Human Relations Commission. Agency may take lead in enforcement or issue “right to sue” letter

Remedies for Violations Liability may be extensive. Plaintiff may receive: –Reinstatement. –Back Pay. –Retroactive Promotions; and –Damages.

Defenses Once a plaintiff establishes that discrimination has occurred, the burden shifts to the employer to justify the discriminatory policy or practice. There are four basic types of defenses to employment discrimination claims. –Business necessity. –Bona fide occupational qualification. –Seniority Systems. –After-acquired evidence of employee misconduct.

Business Necessity The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. Business necessity is a defense to disparate impact discrimination.

BFOQ Bona Fide Occupational Qualification (“BFOQ”) –Job requirements that are reasonably necessary to the normal operation of a business. –(Race cannot be a BFOQ)

Seniority Systems A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer. A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.

After-Acquired Evidence After-acquired evidence refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit. While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.

Employment Law End of Chapter 18