Employment, Immigration, and Labor Law; Agency Relationships in Business; Employment Discrimination and Diversity

Employment At Will

  • Common law doctrine allowing either party to terminate employment at any time for any reason, unless a contract states otherwise.
  • Exceptions:
    • Contract Theory: Implied agreements or oral promises.
    • Tort Theory: Liability may arise from termination.
    • Public Policy: Based on statutes; includes whistleblowing.

Wage-Hour Laws

  • Child Labor: FLSA prohibits oppressive practices.
  • Minimum Wages: Set by FLSA (e.g., 7.257.25/hour in 2010).
  • Overtime: Employees working over 40 hours/week get 1.5 times their hourly wage.
    • Exemptions: Administrative and executive employees under certain conditions.
  • Layoffs: Worker Adjustment and Retraining Notification Act requires 60 days' notice for mass layoffs (33% of 50 full-time employees).

Family and Medical Leave

  • Coverage: Employers with over 50 employees must provide up to 12 weeks (26 for military duty) of unpaid leave for family care.
  • Benefits: Health care continuation; job restoration upon return (unless 'key' employee).
  • Violations: Result in damages, job reinstatement, or promotion.

Worker Health and Safety

  • OSHA: Federal law for workplace safety, enforced by OSHA, NIOSH, and OSHRC.
  • State Workers’ Compensation Laws: Compensate workers injured on the job; lawsuits are waived.

Income Security

  • Social Security & Medicare: Funded through FICA.
  • Private Pension Plans: ERISA provides rules on management and investment.
  • Unemployment Insurance.
  • COBRA: Federal right to continued health insurance; worker has 60 days to decide, payments required.
  • HIPAA: Establishes requirements for health plans, limits exclusion of pre-existing conditions.

Employee Privacy Rights

  • Electronic Monitoring: Many employers monitor employees electronically.
  • Stored Communications: ECPA prohibits unauthorized access.
  • Other Monitoring: Includes lie-detector tests and drug testing.

Immigration Law

  • Immigration Reform and Control Act: Makes it illegal to hire unauthorized workers.
    • I-9 Verification: Required for new hires.
  • Immigration Act: Sets visa caps.
    • Includes I-551 Alien Registration Receipts and the H-1B Visa Program.

Labor Unions

  • Union Organization: Requires authorization cards and elections (if 30% support).
  • Union Election Campaigns: NLRB regulates election conduct.
  • Collective Bargaining: Management and labor negotiate terms; NLRB certifies bargaining agent.
  • Strikes:
    • Economic Strikes: Over wages; workers can be permanently replaced.
    • Unfair Labor Practice Strikes: Alleging employer misconduct.
    • Illegal Strikes: Violent, massed picketing, sit-down strikes, secondary boycotts.
  • Lockouts: Employer's counterpart to strike.

Agency Relationships

  • Agency: Fiduciary relationship based on trust; Principal and Agent.
  • Employer-Employee Relationships: Employees dealing with third parties are agents.
  • Employer-Independent Contractor Relationships: Employers have ‘no control’ over contractor’s work details.
  • Formation:
    • Consensual, requires no consideration, principal needs contractual capacity.
    • By Agreement: Express or implied consent.
    • By Ratification: Principal ratifies non-agent’s conduct.
    • By Estoppel: Principal causes third party to believe in agency.
    • By Operation of Law: Based on social duty (necessaries, emergencies).
  • Duties:
    • Agent to Principal: Performance, notification, loyalty, obedience, accounting.
    • Principal to Agent: Compensation, reimbursement, cooperation, safe working conditions.
  • Authority:
    • Actual Authority: Express or implied.
    • Express Authority: Oral or written; Equal Dignity Rule applies.
    • Implied Authority: Necessary to carry out express authority.
    • Apparent Authority: Based on principal's actions toward third party.
    • Ratification: Principal accepts responsibility for unauthorized act.
  • Liability for Contracts:
    • Disclosed Principal: Identity known; Principal liable.
    • Partially Disclosed Principal: Agent status known, identity not; Principal liable.
    • Undisclosed Principal: Identity and agency unknown; Principal liable unless exceptions.
  • Liability for Torts and Crimes:
    • Agent liable for own torts.
    • Principal liable if torts result from their conduct, authorization, or misrepresentation.
    • Respondeat Superior: Employer liable for employee’s negligence within scope of employment.
  • Termination:
    • By Act of Parties: Lapse of time, purpose achieved, mutual agreement, etc.
    • By Operation of Law: Death, insanity, impossibility, changed circumstances, bankruptcy.

Employment Discrimination

  • Key Laws: Title VII, ADEA, Equal Pay Act.
  • Title VII: Prohibits discrimination based on race, sex, color, religion, and national origin; applies to employers with 15+ employees.
    • Includes pregnancy.
    • Requires reasonable accommodation of religious practices.
  • Discrimination Types:
    • Intentional (Disparate-Treatment): Member of protected class, qualified/rejected, employer sought applicants.
    • Unintentional (Disparate-Impact): Practices adversely affect protected group.
  • Race/Color/National Origin: Policies illegal unless related to job qualifications.
    • 'Reverse' discrimination also prohibited.
  • Religion: Reasonable accommodation required unless undue hardship.
  • Gender: No job classification based on gender unless essential.

Constructive Discharge

  • Intolerable working conditions compel quitting; requires objective proof and foreseeable result.

Sexual Harassment

  • Included under Title VII sex discrimination.
    • Quid pro quo: Benefits for sexual favors.
    • Hostile Work Environment: Intimidation, ridicule, insult.
  • Harassment by Supervisors: Tangible employment action must have occurred.
    • Ellerth/Faragher Defense: Employer took reasonable care, and employee failed to take advantage of opportunities.
  • Retaliation: Prohibited against those complaining about harassment.
  • Harassment by Co-Workers/Nonemployees: Employer liable if they knew/should have known and didn't act.
  • Sexual Orientation Harassment: Not prohibited by Title VII, but some state laws protect.
  • Online Harassment: Via company chat, email, etc.; employers need prompt action.

Remedies under Title VII

  • Reinstatement
  • Back Pay
  • Retroactive Promotions
  • Damages

Discrimination Based on Age

  • ADEA: Protects individuals 40+ from discrimination favoring younger workers.
  • Employee must prove discrimination was based on age bias.

Discrimination Based on Disability (ADA)

  • ADA: Reasonable accommodation required for qualified disabled employees/applicants.
  • To prevail, plaintiff must show disability, qualification, and exclusion solely due to disability.
  • Disability Definition: Physical/mental impairment limiting life activities.
  • Reasonable Accommodation: Without undue hardship.
  • Job Applications/Physical Exams: Modifications required; restrictions on pre-hiring questions.
  • Substance Abusers: Protection for those in supervised rehab programs.

Defenses to Employment Discrimination

  • Business Necessity: Job qualification necessary for business conduct.
  • Bona Fide Occupational Qualification (BFOQ): Particular skill necessary for job performance.
  • Seniority Systems: Job benefits based on length of employment, if bona fide.
  • After-Acquired Evidence: Misconduct evidence uncovered during discovery.

Affirmative Action

  • Designed to remedy past discrimination patterns.