BUSINESSthLAW TODAY

Essentials 8 Ed.
Roger LeRoy Miller - Institute for University Studies, Arlington, Texas Gaylord A. Jentz - University of Texas at Austin, Emeritus

Chapter

18

Employment Law

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Learning Objectives
What is the employment-at-will doctrine?
When and why are exceptions to this doctrine made? What federal statutes govern working hours and wages? Under the Family and Medical Leave Act of 1993, under what circumstances may an employee take family or medical leave? What federal acts prohibit discrimination in the workplace? What are the three defenses to claims of employment discrimination?
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Employment at Will
Historically, employment law was
governed by the common law doctrine of employment at will where either employer or employee could terminate the relationship at any time, for any reason. Today employment law is heavily regulated by state and federal statutes.
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Employment at Will
Exceptions to the Employment-at-Will
Doctrine
Contract Exceptions: An implied contract exists between employer and employee. Oral agreements may become part of the implied contract. Tort Exceptions: Wrongful discharge, emotional distress, defamation may be actionable. Public Policy Exceptions. Whistleblowing.
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Wrongful Discharge
The doctrine of employment-at-will
allows the employer and the employee to terminate employment at any time, for any reason, without liability. Some states however recognize one or more judicial exceptions to this rule, while some states recognize none.
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Whistleblower Statutes
A whistleblower is one who reports illegal

employer activities to the proper authorities. Whistleblowers are frequently subjected to retaliation for such activities. There are a number of state and federal (Whistleblower Protection Act) whistleblower protection statutes, offering a wide variation in protections.

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Wage-Hour Laws
Child Labor. Wages and Hours.
FLSA prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child. Davis-Bacon Act -- the prevailing wage act. Walsh-Healey Act -- the beginning of minimum wages. Fair Labor Standards Act (FLSA) -- an extension of wage and hour regulation to workers in interstate commerce. CASE 18.1 Mims v. Starbucks Corp. (2007).
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Overtime Exemptions.

Labor Unions
Labor Management Relations Act. Labor-Management Reporting and
Disclosure Act.
Regulates the internal operations of unions and outlaws hot-cargo agreements.

Prohibits certain unfair union practices such as closed shops.

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Worker Health and Safety

The Occupational Safety and Health
Act. (OSHA).
The fundamental federal law aimed toward safety in the workplace. Enforcement is by OSHA, NIOSH, and the OSHRC. Procedures and Violations: Employers with 11 or more employees required to keep records.

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Worker Health and Safety

State Workers Compensation Laws.
These laws reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by: Requiring that injured employees make a claim against the employers workers compensation insurance policy, instead of suing the employer. Requiring most employers to carry workers compensation insurance.

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Income Security
Social Security and Medicare. Private Pension Plans.
Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working.

Unemployment Insurance.

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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.

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FMLA
The FMLA requires employers with
over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work.
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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.
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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 Email

systems
Courts generally hold for employers.
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Employee Privacy Rights

Other Types of Monitoring
Lie Detector Tests. Prohibited, except under the ongoing investigation exception. Drug Testing. Most government employees are subject to testing and the rights of private employees vary from state to state. CASE 18.2 CITGO Asphalt Refining Co. v. Paper, Allied-Industrial, Chemical, and Energy Workers (2004). AIDS Testing. Some state statutes restrict AIDS testing.
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Title VII Of The Civil Rights Act of 1964

Title VII prohibits discrimination in
employment on the basis of race, sex, color, religion, and national origin. Sex now includes pregnancy. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employees religious practices. Enforcement of Title VII by EEOC.

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Intentional vs. Unintentional Discrimination

Intentional (Disparate-Treatment)
Discrimination. For prima facie case, applicant must prove:
She is member of a protected class; Applied, qualified and rejected for job; and Employer continued to seek applicants.

Unintentional (Disparate Impact)

Discrimination.
No-protected applicant sues Employer who tries to integrate members of protected classes into workplace.
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Discrimination Based on Race, Color and National Origin

Title VII prohibits employment policies
or intentional/ negligent discrimination on basis of race, color or national origin. Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.
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Discrimination Based on Religion

Employers must reasonably
accommodate the sincerely held religious practices of its employees, unless to do so would cause undue hardship to employers business.

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Gender Discrimination
Title VII prohibits sex discrimination in the
work place. Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. Plaintiff must show gender was determining factor in hiring, firing or lack of promotion. Constructive Discharge.

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Gender Discrimination
Differential treatment. Sexual harassment, which itself,
exists in two varieties.
Hostile Work Environment. Quid Pro Quo.

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Sexual Harassment
U.S. Supreme Court has interpreted
Title VIIs prohibition against sex discrimination to include a prohibition against sexual harassment. There are currently two forms of recognized sexual harassment:
Quid Pro Quo. Hostile Work Environment.
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Hostile Work Environment

Hostile environment occurs when
workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victims employment. The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.
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Harassment by Supervisors
Quid Pro Quo harassment involves the
demands for sexual favors by a supervisor from a subordinate, in exchange for some workplace benefit. [Faragher v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998)]. Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees. Constructive discharge Pennsylvania State Police v. Suders (2004).
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Harassment by Co-Workers
Employer generally liable only if employer
knew or should have known and failed to take action.
Employee notice to supervisor is notice to Employer under agency law.

Employers may also be liable for harassment

by non-employees. Same-gender harassment also violates Title VII.

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Remedies Under Title VII

Employer liability may be extensive:
Reinstatement, Back pay, Retroactive promotions, and Damages. Punitive damages if employer acted with malice or reckless disregard.

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Online Harassment
Company email systems. Company chat rooms. Posting sexually explicit images on
company computer systems, screen savers, etc. Employees will generally not be liable if prompt action taken.

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Discrimination Based on Age

The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. Plaintiff must show:
He was member of protected age group, Was qualified for the position from which he was discharged, and Was discharged under circumstances that inferred discrimination.

CASE 18.3 Cash Distributing Co. v. Neely (2007).

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Discrimination based on Disability (ADA)

The Americans with Disability Act
(ADA) requires employers to offer reasonable accommodation to employees or applicants with a disability who are otherwise qualified for the job they hold or seek. The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.
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ADA
To prevail on a claim under ADA,
plaintiff must show she:
Has a disability. Is otherwise qualified for the employment in question; and Was excluded from employment solely because of the disability. Workforce must be more than 15 employees

Plaintiff must first exhaust

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administrative relief with EEOC.

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Issue: What is a Disability?

ADA defines disability as:
Physical or mental impairment that substantially limits one or more of major life activities; or A record of such impairment; or Being regarded as having such an impairment.

Determination is decided on a case-bycase basis.

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Issue: What is Reasonable

Accommodation?

If an employee with a disability can

perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.
Examples: wheelchair ramps, flexible working hours, improved training materials.

Job Applications and Pre-Employment

Physical Exams. Hostile-Environment Claims.
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Defenses to Employment Discrimination

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.

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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 employers business. Business necessity is a defense to disparate impact discrimination.

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BFOQ
The bona fide occupational
qualification defense requires an employer to show that an particular skill is necessary for the performance of a particular job. The BFOQ defense is used in cases of disparate treatment discrimination.

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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.

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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.

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