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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.

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)

Whistleblowers  Employees who disclose illegal behavior of their employers.  They are protected in these situations: Wrongdoing by government contractors Government employees speaking out on a matter of public concern Federal employees reporting illegal federal activity Reporting illegal activity for which the whistleblower himself could be in trouble Reporting a co-worker’s illegal activities

Contract Law  Truth in Hiring Oral promises made during the hiring process can be enforceable. Employers may be liable for promises that they cannot keep. An employee handbook can create 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, however, recognize a qualified privilege (protection unless the statement is known false or given in ill will) for employers who give references about former employees.

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

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 employees 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 and messages if: the employee consents, the monitoring occurs in the ordinary course of business, or in the case of , the employer provides the system.

Financial Protection  Fair Labor Standards Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages 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, 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 for the business. Affirmative action is not required by Title VII, nor is it prohibited.

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.

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.

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