Employment Law (COMM 3420)

Employment At Will

A. EE’s not subject to the at-will rule

1. Employment Contracts

• negotiate terms after first K

  • include: reasons for termination, protection upon termination/severance/notice

2. Public EE’s

• work under civil service/merit system

(1) provide tenure

(2) requires “just cause“ for discharge

(3) guaranteed administrative proceeding to determine whether there is just cause

3. Labor Union workers not subject to at will

(1) just cause

(2) admin hearing

B. Wrongful Discharge Laws

1. Public Policy Exceptions: ER must have cause to terminate an EE

a. refusing to perform an illegal or unethical act

b. exercising a statutory right (e.g., workers comp = Kelsay v Motorola, first cause to allow punitive damages in a wrongful termination created by state law)

c. performing a statutory right

• Weider vs Skala

• Sheets vs Teddy Foods (both cases in different states concluding that at-will is too strict)

d. whistleblower stats - both fed/state

(1) Sarbanes - Oxley Act of 2002

(2) Dodd - Frank Wall Street Reform and Consumer Protection Act

• base on tort, entitled to damages

2. Implied Employment Contracts: ER/EE conduct may found to imply k

• Foley v Interactive Data Corp: base on factors there is implied k- length of service, no prior criticism, regular promotions/raises, assurances by ER of continued employment for good performance

• Pugh v See’s Candies: EE policies are in manual and can count as implied K

• Wooley v Hoffmin La Roche: EE handbook is a unilateral offer to its entire workforce just by distributing the manual to its EEs

3. Implied covenant of good faith and fair dealing

• Fortune vs National Cash Register Co: firing to avoid paying commissions

Federal Statutory protections of EE’s hours, wages, med leave

A. Fair Labor Standards Act (FLSA):

1. History: created after GD

2. ER’s covered by act: ER’s engaged in interstate commerce

3. Objectives: place ceiling on # of work hours, place floor under wages (created minimum wage)

4. Protection included

a. child labor laws prohibiting: under age of 14 to work, 14 + 15 cannot work hazardous jobs (# of hours and days work limited), 16-18 can do anything non-hazardous

b. maximum # of hours per week (40)

• overtime pay (time and a half)

c. established minimum wage

• workers under 20 don’t have to be paid minimum wage

• Glatt v For Searchlight Pictures

  • department of labor was rigid

  • primary beneficiary test: if the intern gets more out of the relationship then they contribute —> the ER does not have to pay them

  • if the ER gets more out of the relationship, interns must be paid

  • factors: no expectations of compensation, same training, integration with formal education, accommodation of academic commitments, compliments rather than displaces paid work

B. The Equal Pay Act 1963 - amended FLSA: non-gender discrimination pay

C. Family and Medical Leave Act (FMLA)

1. ER’s covered by Act

• private ER in interstate commerce, 50 or more full-time EEs, within 75 mile radius of worksite, ALL public/educational agencies public or private

2. Protections:

• provide EE up to 12 weeks of family medical leave (per year), srs health conditions of yourself or family members

• ER must continue to provide health benefits

• ER must guarantee EE that they can return to prior job or comparable job

• can’t be fired under FMLA

• don’t have to pay for time-off

Federal Laws protecting EE’s health and safety on the job

A. Occupational Safety and Health Act (OSHA)

1. ER’s must provide a workplace “free from recognized hazards“ likely to cause death or serious physical harm, a danger the ER actually knew about or should have known about given standard industry knowledge

Cases:

• Seaworld vs Perez: close contact with whales isn’t a recognized hazard

• Secretary of Labor vs. Megawest Financial

  • can’t forsee criminal behavior (not recognizable hazard)

• Secretary of Labor vs Integra Health Management: held liable for resending nurse to extremely mentally ill patient (recognize hazard)

2. OSHA Issues that show up in office environment: Ergonomics, Indoor Air Quality, Workplace violence prevention, Emergency action plans, Recordkeeping and Reporting

B. Worker’s Comp Laws

1. History: before 1911, EE had to sue ER when injured

2. ER Defenses:

a. The fellow servant rule: ER not liable if co-workers caused the injury

b. Contributory negligence: if EE had any fault, EE gets nothing

c. Assumption of the risk: EE knew of the risk

Cases:

• Ives vs. South Buffalo Railway: first compensatory workers compensation law

  • 1913-NY amended state constitution to explicitly authorize no fault compensation law

• NY Central Railroad Co. vs. White

  • NY law was constitutional

3. 1911 Compromise: EE wanted fast, fair, medical help, “without having to prove fault“. ER fixed predictable liability, capped payoffs, no punitives or attorney fees

4. Strict Liability: the trade off

5. Requirements

a. Accidental

b. Arise out of and in course of employment

Cases:

• Hartford Accident and Indemnity Co vs Cardillo CDC Cir: as long as EE is the victim, doesn’t matter if it is a fight or horseplay

• Wisemen v Industrial Accident Commission: traveling for work is in the scope of employment

6. Benefits: medical expenses, death benefits, loss wages, vocational rehabilitation

7. Exceptions: file for work comp (negligence), if ER intentionally created reckless disregard (malice —> sue directly)

ex: VA Schedule for Permanent Partial Disability

EE Financial Security

1. Social Security: (FICA) Fed Insurance Contributions Act

a. Government assured supplemental income for retirees-the survivors disabled

b. Medicare

2. Retirement plans

a. Pension: ER promise to pay EE monthly sum when EE retires after a certain # of years/services amount based on final salary and years of services (right to a pension has to vest)

b. Tax-deferred retirement savings account: EE commit to savings a % of EE salary in an account within the EE controls (ex: IRA)

3. ERISA - EE Retirement Income Security Act of 1974: regulations set up to protect EE’s investment

• prohibits conflicts of interest, imposes certain fiduciary standards, requires certain record keeping, requires certain disclosures, provides for oversite

4. Unemployment Insurance - FUTA: Government assured short-term income (just enough income for stability, only for economic difficulties—> not entitled if-leave own will or fired)

• Requirements: must be ready to work

• normally 26 weeks of pay

  • Facts: fed law provides general guidelines, standards and requirements for program. stat laws actually govern the administration of the program. system funded by FUTA

Health Insurance

1. HIPAA - Health Insurance Portability & Accountability act

• Keeps individuals medical information private

• ER Requirements: keep medical records separate from EE personal file, only shared when legally required

2. COBRA, Consolidated Omnibus Budget Reconciliation

a. mandates ER continue to offer group health insurance coverage to EE’s on leave

b. available to: EE’s on leave for any reason, widows of EE, spouses

c. exceptions: if ER gets rid of the policy

d. cost of insurance: EE pays premium by themself + admin fee, still less than other insurances

3. Health Care and Education Reconciliation Act of 2010

a. OG: available to those between 100%-400% poverty level ($32,150=$128,700)

b. Biden fixed gap: American Rescue Plan Act- set eligibility on % of income

Employment Discrimination

A. Equal Pay Act (1963)

1. History: women took over jobs during WWII, Civil Rights Movement, Feminist Movement (Feminist Mystique)

2. Protections: prohibits the discrimination base on sex, when EE are performing jobs requiring- equal skill, effort, responsibility

3. Process-Direct or EEOC (Equal Employment Opportunity Commission)

a. plaintiff case: must identify a comparable made EE who first made more $ for performing equal work

b. problems: money isn’t disclosed to every EE

c. defendant’s “affirmative defenses“

(1) seniority system: applied equally, cannot manipulate to cover up discriminatory

(2) merit system: if ER can prove male outperforms in measurable tasks, pay difference can be justified

(3) system: measures earnings by quantity/quality or production

(4) a differential based on any other factor other than sex

Cases:

• Corning Glass Works v Brennan

  • women couldn’t work at night but men could and got paid more, court ruled in favor of women

• County of Washington v Gunter

  • court says Title VII case covers ALL employment discrimination

4. Efforts to Strengthen the EPA

Cases:

• Boyer vs U.S.

  • female pharmacist had more experience but male got paid more, court ruling strict reliance on prior payments is denied

5. Remedies: punitives, equal pay, liquidated damages (written in K), injunctions - enjoins the ER from further unlawful conduct by the court

6. Lilly Leadbetter Fair Pay Act (2008)

• S o L = 2 years after finding out about unfair pay

B. Paycheck Fairness Act - Addresses judicially created loophole, requires “factors other than sex“

• must: bona fide factor (good faith), consisted within business need, never passed

C. Civil Rights Act of 1964 - Title VII

1. Protected classes under Title VII: all EEs engaged in interstate commerce, employment agencies, labor unions, state and local govt agencies

2. Scope of Protection

3. EEOC: file lawsuit on your behalf

4. Requirements

a. Protected Class Member: race, national origin, color, religion, gender/sex, pregnancy

b. Adverse Employment Action: show part of the class + discrimination

c. Discriminatory motive

d. filing a charge with the EEOC

e. EEOC investigation and right to sue notice: access to records and take case of EE can take case (90 days to decide)

5. Claims made based on 2 basic theories (types) of discrimination

a. Disparate Treatment: intentional

STAGE 1: Plaintiff case

(1) belong to the class

(2) qualify for employment

(3) suffer adverse action

(4) similarly situated EE’s outside the class were treated more favorable

STAGE 2: affirmative defense

(1) Bona Fide Occupational Qualifications: identifiable characteristics that reasonably necessary to the normal operation the business (ex: only hiring women to sell bras —> right to discriminate)

STAGE 3: EE Rebuttal

(1) what ER provided was a mere pretext for the discrimination in an attempt to disguise it

Religious Discrimination: ER are required to provide accommodations

Stage 1: plaintiff must establish sincere religious belief that conflicts with a job requirement, ER must accommodate OR

State 2: show ER couldn’t accommodate due to undue hardship

Stage 3: EE Rebuttal: challenge, whether ER would actually experience undue hardship

Case: Groff v Dejoy

• undue hardship = de minimus cos standard

Sex/Gender

Case: Phillips vs Martin Maritta Corp

• first case to go to the USSC that deals with Title VII sex discrimination

Stereotypes as gender/sex discrimination

Case: Price Waterhouse vs Hopkins

• shouldn’t penalized to conform to a certain stereotype

Pregnancy Discrimination

Case: International Union v Johnson Controls

• women has personal liability to choose to continie to work or not, barring ALL fertile women due to lead risk

Case: Young vs UPS

• subjected to desk work if injured but Young was pregnant so policy did not apply to her, had to quit or go without pay, court ruled as discriminatory

b. Disparate Impact: unintentional

(1) a facially neutral employment policy that has a discriminatory effect in practice

(2) tests to establish: (a) pool of applicants - % of protected class EE’s in ER’s workforce doesn’t reflect the % qualified protected class workers in the relevant labor markets. (b) selection rate test: comparison of rates at which ER hires, retains, and promotes protected class member vs non-class members

Cases:

• Griggs vs Duke Power Co: motive doesn’t matter over result of causing black people lower paying jobs due to IQ test

• Ricci v Distefano: ER must have a strong basis in evidence that consulting test for firefighters was discirmnatory against black and hispanics before throwing out

C. Gender Discrimination

1. Sexual Harassment

a. Quid Pro Quo: this for that (sex for promotion)

b. Hostile Working Environment

Case: Mentor Savings Bank vs Vinson

• feeling uncomfortable counts as discrimination

c. same-sex harassment Case: Oncale v Sundowner Offshore Services

• male-on-male harassment falls under gender discrimination

d. Retaliation: getting reprimanded for speaking up

e. ER vicarious liability for harassment by

1. Supervisors: held liable even if ER doesn’t know + EE didn’t suffer adverse job consequences, strictly liable since ER put them in power

2. Co-workers: held liable if they knew and did nothing

3. Non-Employees (clients, customers): if ER has the ability to prevent the harassment and fails to act

f. ER affirmative defense: EE failed to follow sexual harassment policy that was properly explained to EEs

• if supervisors harassment didn’t result in retaliation and EE decides to go straight to EEOC, skipping ER internal HR process, this provides ER with a legal shield

• Case: Faragher v City of Boca Raton + Burlington Industries v Ellerth- created affirmative defense

Gender Identity

• Case: Bostock v Clayton County

  • court ruling first time gender identity falls under discrimination based on sex

Americans with Disabilities Act

1. Definition: as a mental or physical impairment that substantially limits one or more major life activities (e.g., breathing, speaking, seeing, and all major bodily functions). also covers a record of such an impairment (e.g., cancer in remission) protecting people with a disability history, not just a current one

Case: Sutton v United Air Lines- if it can be corrected, it’s not a physical impairment

Case: Toyota v Williams- worker seeks desk job, court denies since a disability has to stop working all jobs not just one

2. ADA Amendment Act of 2008: made interpretation of disability more broad and favor coverage

3. EEOC- recognized categories of disability, wants to add obesity

4. Requirements: ER can’t discriminate, ER must prove reasonable accommodations

5. Exception- ER show undue hardship

(a) excessive financial cost

(b) disruption to business operations

(c) compromising workplace safety

(d) insufficient space

(e) reduction in productivity

(f) impact on other EE’s

Case: U.S. Airways Inc v Barnett

• EE gains desk job due to injury causes undue hardship for ER due to seniority

Age Discrimination in Employment Act

1. Requirements: any negative EE situations

2. Act allows both disparate treatment and disparate impact claims

3. prohibits retaliation against people who assert their rights under the Act

4. Defenses

a. A legitimate, nondiscriminatory reason

Case: Meacham vs Knolls Atomic Power Laboratory- ER can’t just claim “reasonableness“ must prove

b. Bona Fide Occupational Qualification: fine with age restrictions base on safety, ex: cut off age to fly planes