3. Learning Objectives
v Legislation protecting employee health,
safety, and well-being
v Legislation protecting wages, pensions,
and benefits
v Unions and collective bargaining
v Equal opportunity legislation
v Employee privacy and job security
51 - 3
4. Overview
v Historic rule of law: employment at will
w Employer may fire an employee for any reason
51 - 4
5. Overview
v Modern employment law: employment at will
unless the employee is protected by a
statute in several categories:
w Employment Security
w Employee Health, Safety, and Well-Being
w Financial Protection
w Employment Discrimination
w Employee Privacy
51 - 5
7. Employment at Will Rule
v Traditional employment-at-will rule first
appeared around 1870: either party can
terminate an employment contract of
indefinite duration for good cause or no
cause
v Doctrine limited today by statutes and three
common law exceptions:
w Public policy
w Implied covenant of good faith & fair dealing
w Employment promises
51 - 7
8. Wrongful Discharge
v In states recognizing
exceptions to traditional
rule, a terminated
employee may sue the
former employer for
wrongful discharge or
unjust dismissal
w May also include tort
or contract claims
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9. Public Policy Exception
v Terminated employee claims the discharge
was unlawful because it violated state
public policy in one of three ways:
w Employee refused to commit unlawful act
w Employee performed public obligation
such as military duty or whistle-blowing
w Employee exercised legal right or privilege
51 - 9
10. Whistle-blowing
v A whistle-blower is an employee who
publicly discloses dangerous, illegal, or
improper behavior by the employer
v In Franklin v. The Monadnock Company an
employee was terminated for complaining
to human resources about a dangerous
coworker and the employee filed suit for
wrongful discharge
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11. Breach of Good Faith
v In a wrongful discharge
suit based on breach of the
implied covenant of good
faith and fair dealing,
employee argues
discharge unlawful
because it was not made in
good faith or did not
amount to fair dealing
51 - 11
12. Breach of Promise Exception
v Courts have increasingly made employers
liable for breaking promises to employees
made prior to or during employment
v If employer breaks promises when it fires
employee, it is liable for breach of contract
v Cisco v. King indicates that employee
manuals may establish terms of an
employment contract
51 - 12
14. Workers’ Compensation
v Workers’ compensation protects only
employees (not independent contractors)
w Some state laws exempt certain categories of
employees or employers
v When applicable, worker’s compensation
laws allow injured employees to recover
under strict liability
w Removes need to prove employer negligence
and eliminates employer defenses
51 - 14
15. Exclusive Remedy
v Workers’ compensation is an employee’s
exclusive remedy against an employer for
covered injuries
w Unless employer acted intentionally
v Types of recovery: hospital and medical
expenses, (2) disability benefits, (3) specified
recoveries for loss of certain body parts, and
(4) death benefits to survivors and/or
dependents
51 - 15
16. Work-Related Injuries
v Employees recover only for work-related
injuries – those injuries that:
1. Arise out of the employment
w Close relationship between nature of
employment and injury
2. Happen in the course of employment
w Injury occurred within time, place, and
circumstances of employment
51 - 16
17. Agency Administration
v In general, a state agency administers
workers’ compensation systems to handle
and adjudicate workers’ claims
v States fund workers’ compensation by
requiring covered employers to purchase
private insurance, make payments into a
state fund, or self-insure with a contingency
fund
51 - 17
18. OSHA
v The federal Occupational Safety and Health
Act imposes a duty on employers to provide
their employees with a workplace and jobs
free from recognized hazards that may
cause death or serious physical harm
v The Occupational Safety and Health
Administration (OSHA) issues and enforces
supporting regulations
51 - 18
19. OSHA Rules & Enforcement
v OSHA requires employers
to inform, train and protect
employees, especially with
regard to hazardous
materials and equipment
v OSHA is authorized to
inspect a workplace and
issue citations for violations
of the act and regulations
51 - 19
20. Family & Medical Leave Act
v Family and Medical Leave Act (FMLA)
covers those employed for > 12 months
(>1,250 hours) by an employer employing
50 or more employees
v Employers who deny FMLA rights bear civil
liability to the affected employee
51 - 20
21. Family & Medical Leave Act
v Covered employees may take a total of 12
workweeks of leave during any 12-month
period for one or more of several reasons:
w Birth of a child
w Adoption of a child
w Need to care for a spouse, child, or parent
with a serious health condition
w Employee’s own serious health condition
51 - 21
23. Social Security
v Federal social security system is funded by
the Federal Insurance Contributions Act
(FICA), which imposes a flat percentage tax
on employee income below a base figure
and requires matching amounts by
employers to support programs:
w Social security
w Disability
w Medicare
51 - 23
24. Unemployment Compensation
v Covering discharged workers, each state
administers a system of unemployment
compensation under federal guidelines
w Funded by federal and state unemployment
compensation taxes paid by employers
w Workers who voluntarily leave without good
cause, are fired for misconduct, fail to
actively seek new work, or refuse other work
generally are ineligible for benefits
51 - 24
25. ERISA
v Employers often contribute voluntarily to
employee retirement income through
pension plans
v Employee Retirement Income Security Act
of 1974 (ERISA) imposes:
w Fiduciary duties on pension fund managers
w Record-keeping, reporting, and disclosure
requirements
w Guaranteed employee participation
51 - 25
26. ERISA
v Remedies for ERISA violations include civil
suits by plan participants and beneficiaries,
equitable relief, and criminal penalties
51 - 26
27. Fair Labor Standards Act
v FLSA regulates wages and hours by
entitling covered employees to
1. Specified minimum wage whose amount
changes over time, and
2. Time-and-a-half rate for work exceeding 40
hours per week
v Exemptions: executive, administrative,
and professional personnel
51 - 27
28. Fair Labor Standards Act
v FLSA prohibits oppressive child labor by
any employer engaged in interstate
commerce or producing goods for such
commerce
v See
U.S. Dept. of Labor Int’l Child Labor Program websit
51 - 28
29. Collective Bargaining
v Until the National Labor Relations Act of
1935 (NLRA or Wagner Act), U.S. workers
attempting to organize and obtain better
working conditions and pay often were
treated like criminals
51 - 29
30. Union Activity
v NLRA gave employees the right to organize
by enabling them to form, join, and assist
labor organizations and to bargain
collectively through their own
representatives
v The Act also prohibited employers from
engaging in certain unfair labor practices
and established the National Labor
Relations Board (NLRB)
51 - 30
31. Restrictions on Union Activity
v NLRA amended in 1947 and 1959 to restrict
union activity, but organized labor may still
engage in collective bargaining to achieve a
collective bargaining agreement and may
protest unfair labor practices by employers
51 - 31
32. Test Your Knowledge
v True=A, False = B
w Employment at will is the rule of law in all fifty
states.
w An employer (100 employees) may not fire a
man for taking a two month leave of absence
to care for his seriously-ill wife.
w Workers’ compensation is an employee’s
exclusive remedy against an employer for
covered injuries
51 - 32
33. Test Your Knowledge
v True=A, False = B
w The Fair Labor Standards Act prohibits any
form of child work or labor by any employer
engaged in interstate commerce.
w OSHA may not inspect a workplace or issue
citations for violations of the act without a
warrant issued by a judge.
w An employer may terminate a whistle-blower
immediately because whistle-blowers make
defamatory comments to the public.
51 - 33
34. Test Your Knowledge
v Multiple Choice
w Under Workers’ Compensation, employees
recover only for:
w (a) Injuries that affect an employee’s ability to
do his or her job
w (b) Work-related injuries that arise out of or
happen in the course of employment
w (c) Injuries that occur during any period of
employment, whether on or off the job
w (d) both A and B
51 - 34
35. Information for Discussion
v Roughly 6,371 job-related injury deaths,
13.3 million nonfatal injuries, 60,300 disease
deaths, and 1,184,000 illnesses occurred in
the U.S. workplace in 1992.
v The total direct and indirect costs associated
with these injuries and illnesses were
estimated to be $155.5 billion, or nearly 3
percent of gross domestic product (GDP).
51 - 35
36. Thought Questions
v Do you think that people take advantage of
government employment laws? Do you
believe that Workers’ Compensation
programs are effective methods to handle
the substantial cost of workplace injuries?
51 - 36
38. Equal Pay Act of 1963 (EPA)
v As an amendment to the FLSA, the Act
forbids pay discrimination based on gender:
employee may not be paid a lesser rate
than employees of opposite sex for equal
work
w Equal work defined as substantially equal in
terms of effort, skill, responsibility, and
working conditions
w Unlike FLSA, EPA covers executive,
administrative, and professional employees
51 - 38
39. The EEOC
v The Equal Employment Opportunity
Commission is an independent federal
agency authorized to enforce employment
discrimination laws, investigate allegations
of discrimination, and interpret statutes by
issuing rules, regulations, and guidelines
w See the EEOC website
51 - 39
40. Equal Pay Act of 1963 (EPA)
v Employer may raise one
four defenses in a lawsuit
filed under the EPA by
showing the pay disparity
is based on (1) seniority,
(2) merit, (3) quality or
quantity of production (e.g.,
a piecework system), or (4)
any factor other than gender
51 - 40
41. Title VII of
1964 Civil Rights Act
v Prohibits employers from discriminating on
basis of race, color, religion, gender, or
national origin
v Prohibits sexual harassment and
discrimination because of pregnancy
v Covers all employers employing 15 or
more employees and engaging in an
industry affecting interstate commerce
51 - 41
42. Title VII Procedure
v If an employer’s act violates Title VII, the
aggrieved person must file a charge or
complaint with EEOC for investigation and
allow agency to either file a lawsuit or
obtain resolution
w See EEOC website regarding procedure
v If, after six months, EEOC fails to file suit
or resolve the claim, plaintiff may obtain a
right to sue letter and file a civil lawsuit
51 - 42
43. Title VII Remedies
v If private plaintiff or EEOC wins a Title VII
suit, several remedies exist: compensatory
damages, reasonable attorney’s fees, and
equitable relief
v If discrimination was intentional, an
employee may obtain back pay for lost
wages and compensatory damages for
emotional distress, sickness, loss of
reputation, or denial of credit
51 - 43
44. Title VII Remedies
v Punitive damages are
available if defendant
discriminated against
current or prospective
employee with malice
or reckless indifference
to plaintiff’s rights
51 - 44
45. Definition of Discrimination
v Discrimination is refusing to hire, failing to
promote, firing, or otherwise reducing a
person’s employment opportunities for a
person in a protected class
v Two methods to prove discrimination:
w Disparate treatment
w Disparate impact
51 - 45
46. Proving Disparate Treatment
v Plaintiff must show s/he was treated
differently because of race, gender, color,
religion, or ethnicity (prima facie case)
v Once plaintiff proves prima facie case, the
burden shifts to employer to show a
legitimate and non-discriminatory reason for
discrimination
w Plaintiff must then prove that employer’s
reason is mere pretext to win the case
51 - 46
47. Proving Disparate Impact
v Disparate impact occurs if an employer has
a rule or practice that, on its face, seems
non-discriminatory or neutral, but the
impact excludes too many people in a
protected class
w Example: height or weight limits, taking a
written test
v If plaintiff proves disparate impact, burden
is on employer to show job-related reason
51 - 47
48. Title VII Employer Defenses
v An employer may prevail in a Title VII claim
if it can prove a legitimate reason for the
discriminatory act or practice based on:
w Seniority
w Merit
w Bona fide occupational qualification
(BFOQ)
51 - 48
49. Becknell v. Board of Education
v Facts:
w Becknell, a female qualified and certified to be
an assistant principle applied for open position
w A male teacher, not certified, also applied and
received the position
w Becknell sued under state civil rights statute
w Substantial evidence existed that the board chose
a male simply based on gender
51 - 49
50. Becknell v. Board of Education
v Trial Court Decision:
w Trial court granted
summary judgment to
Becknell since being male
is not “a bona fide
occupational qualification
for the assistant principal
position”
51 - 50
51. Affirmative Action
v Title VII permits private
employers to design
and implement
employment programs
to emphasize the
hiring and promotion of
minority candidates
51 - 51
52. Title VII and Religion
v Employers must make reasonable
accommodation for a worker’s religious
beliefs unless the request would cause
undue hardship for the business
w The term religion is broadly defined
w Undue hardship exists if accommodation
imposes more than a minimal burden on
an employer
51 - 52
53. Title VII and
Sexual Harassment
v Two major categories of sexual
harassment are prohibited by Title VII:
w Quid pro quo (this for that): when an
aspect of a job is made contingent on an
employee’s sexual activity
w Hostile work environment: when sexual
talk and innuendo are so pervasive that a
hostile work environment is created for the
employee
51 - 53
54. Title VII and
Sexual Harassment
v Harassers and victims may
be either gender
v Keeton v. Flying J, Inc.
confirms that Title VII allows
recovery when the harasser
is a female and harassee is
male
v Harasser(s), individual
manager(s), and the
company are potential
defendants
51 - 54
55. Age Discrimination in
Employment Act (ADEA)
v Prohibits age-based discrimination against
employees or job applicants at least 40
years old
v Covers organizations that engage in an
industry affecting interstate commerce, and
employ at least 20 persons
v Remedial procedures, defenses, and
remedies are similar to Title VII claims
51 - 55
56. Americans with Disabilities Act
v Prohibits employers from disqualifying a
job applicant or employee if employee can,
with reasonable accommodation, perform
the essential functions of the job
51 - 56
57. Definition of Disability
v Disability under the ADA is:
w A physical or mental impairment that
substantially limits one or more of an
individual’s major life activities
w A record of such an impairment, or
w One’s being regarded as having such an
impairment
v Employer may not ask about disabilities
before making a job offer
51 - 57
58. Americans with Disabilities Act
v Act covers employers who have 15 or more
employees and are engaged in an industry
affecting interstate commerce
v Accommodation is not reasonable if it
would create undue hardship for employer
v Remedial procedures, defenses, and
remedies are similar to Title VII claims
51 - 58
59. Americans with Disabilities Act
v U.S. Supreme Court trend has narrowed
the concept of disability under the ADA
v In the 1999 case of Sutton v. United
Airlines, Court held that corrective
measures (treatment, available cure) must
be taken into account in determining
whether an impairment is a disability
v In Toyota, Supreme Court required the
disability be permanent or long-term
51 - 59
61. Overview
v Employer interests in surveillance of the
workplace may conflict with employee
privacy interests
v Unless otherwise specified by statute, U.S.
Constitution does not apply to private
employment
w Federal privacy laws typically apply only to
federal employees and state law covers
private sector employees
51 - 61
62. Employee Polygraph
Protection Act of 1988
v Applies to private employers and current or
prospective employees
v Enforced by Department of Labor (DOL), an
employer may not:
w Require or request employees to take a
polygraph (lie detector) test
w Use or inquire about polygraph results
w Discriminate based on polygraph results or
an employee’s failure or refusal to take test
51 - 62
63. Employee Polygraph
Protection Act of 1988
v Certain employers exempted:
government, private firms with
security-related interests,
private firms investigating
economic loss
v For violations, DOL may file
suits or issue civil penalties
and private parties may sue for
damages and equitable relief
51 - 63
64. Drug & Alcohol Testing
v Testing by public employers
is legal under search and
seizure provisions of Fourth
Amendment if:
w Reasonable basis for
suspecting employee drug or
alcohol use on the job exists
w If such use could threaten
public interest or public safety
51 - 64
65. Employer Searches
v A public employee has a reasonable
expectation of privacy in areas such as his
or her office, desk, or files, but a search of
those areas is constitutional if the search is
reasonable under circumstances
w Requires balancing employee’s legitimate
privacy expectations against government’s
need for control of the workplace
51 - 65
66. Employer Searches
v A public or private employer who conducts
an allegedly unreasonable search may be
sued by an employee under common law
claim of invasion of privacy
51 - 66
67. Records & References
v Most states allow employees access to their
personnel files maintained by employers
and limit access by third parties
v Employers who transmit such data to third
parties, such as information in a reference
letter, may be liable for civil claims of
defamation or invasion of privacy
51 - 67
68. Employer Monitoring
v Employers could monitor the workplace by
closed-circuit television, video monitoring,
telephone monitoring, computer workstation
monitoring (keystroke counting), and using
metal detectors
51 - 68
69. Employer Monitoring
v Many firms tell employees
that e-mail, voicemail,
Internet usage, and other
communications and
transactions are subject to
monitoring
v TBG Insurance Services Corp. v. Superior Court
illustrates the legal impact of
these policies
51 - 69
70. Test Your Knowledge
v True=A, False = B
w The Civil Rights Act prohibits employers from
discriminating on basis of race, color, religion,
gender, or national origin.
w Two methods to prove discrimination are
disparate treatment and disparate impact.
w Discrimination based on a BFOQ is legal.
w Every employer has the right to request a
prospective employee to take a pre-
employment polygraph.
51 - 70
71. Test Your Knowledge
v True=A, False = B
w Unless otherwise specified by statute,
protections of the U.S. Constitution do not
apply to government employees.
w The Americans With Disabilities Act prohibits
employers from disqualifying a job applicant
or employee with a disability for any reason.
w The two types of sexual harassment claims
are quid pro quo and undue hardship.
51 - 71
72. Test Your Knowledge
v Multiple Choice
w If an employer’s act violates Title VII, the
aggrieved person must:
(a) File a charge or complaint with the EEOC
(b) Allow the EEOC to investigate the charge
(c) Allow the EEOC to file a lawsuit or obtain
resolution
(d) All of the above
(e) File a lawsuit within 6 months in federal
district court
51 - 72
73. Thought Questions
v Employers may be able to
monitor your work by
video, audio, computer
keystroke, or other
methods of surveillance.
Are you comfortable with
this fact? Are broad
allowances for employer
surveillance good public
policy?
51 - 73
Editor's Notes
Candy store, early 1900s.
Examples: Refusing to commit unlawful act – employee refuses to fire an employee for discriminatory reasons, illegally dump hazardous materials, or commit perjury Performing public obligation – military duty, jury duty, stop & assist duty, whistle-blowing (turning in an employer or co-worker for illegal activity) Exercising legal right or privilege – filing a Workers’ Compensation claim
The hyperlink is to the case opinion on the Findlaw.com website.
About 25 percent of the states have recognized this exception to employment at will, and most of these interpret the exception narrowly.
At least two-thirds of the states recognize this exception to employment at will, but employers may avoid liability by inserting disclaimers of job security in employment applications and employment manuals. Court in Cisco v. King : “Our first and most fundamental inquiry is whether the language contained in the County’s employment manual was of sufficient force to abrogate Arkansas’s at-will doctrine and establish a contract for employment whereby the employees could be terminated only for cause. We begin our analysis with an examination of Arkansas’s at-will doctrine…. The employment-at-will doctrine does have exceptions, however…. We hold that the breadth of coverage and dissemination of the County’s manual coupled with the definiteness and comprehensiveness of its termination policy could reasonably lead an employee to expect that the manual created enforceable employment obligations…. The continued employment of the employees as permanent employees completed the contract. Therefore, the County could only terminate the employees for cause. The undisputed evidence presented at trial showed that the employees had stellar and unblemished employment records. Based on these facts, we are convinced that the County denied their contractual right to continued employment by dismissing them without cause. Because the employees were terminated without cause, they are entitled to damages, and we affirm the judgment of the trial court. Affirmed in favor of the employees.”
Arising-out-of-the-employment test usually requires a sufficiently close relationship between the injury and the nature of the employment. Different states use different tests to define this relationship. Examples include: Increased risk. Employee recovers only if nature of job increases risk of injury above the risk to which general public is exposed. Factory worker assaulted by a trespasser probably would not recover, while a security guard assaulted by the same trespasser probably would. Positional risk. More liberal test – injured employee recovers if employment caused employee to be at place and time where injury occurred. Factory worker probably would recover. Dulen case adopts this test. In-the-course-of-the-employment requirement inquires whether the injury occurred within the time, place, and circumstances of the employment. Employees injured off the employer’s premises generally are outside the course of the employment. For example, injuries suffered while traveling to or from work usually are not compensable. But an employee may be covered where the off-the-premises injury occurred while she was performing employment-related duties such as going on a business trip or running an employment-related errand.
Decisions of state workers’ compensation boards or commissions normally are appealable to state courts.
Occupational Safety and Health Act applies to all employers engaged in a business affecting interstate commerce, an easy threshold to meet.
Main sanctions for violations of the act and the regulations are various civil penalties.
Usually, the leave is without pay. Upon the employee’s return from leave, the employer ordinarily must put her in the same or an equivalent position and must not deny her any benefits accrued before the leave began.
Unemployment insurance plans vary from state to state.
Both affected employees and the Labor Department can recover any unpaid minimum wages or overtime, plus an additional equal amount as liquidated damages, from an employer that has violated the FLSA’s wagesand-hours provisions. A suit by the Labor Department terminates an employee’s right to sue, but the department pays the amounts it recovers to the employee. Violations of the act’s child labor provisions may result in civil penalties. Other FLSA remedies include injunctive relief and criminal liability for willful violations.
Oppressive child labor includes (1) most employment of children below the age of 14; (2) employment of children aged 14–15, unless they work in an occupation specifically approved by the Department of Labor; and (3) employment of children aged 16–17 who work in occupations declared particularly hazardous by the Labor Department. The link is to the U.S. Department of Labor’s International Child Labor Program at http://www.dol.gov/ILAB/programs/iclp/main.htm. The photo is of children digging for drinking water in India. While this isn’t necessarily a “child labor” photo, it is a reference for a very serious issue. According to the International Labor Organization (ILO), there were an estimated 211 million children, ages 5 to 14, working around the world in 2000. First, child labor is considered a major human rights and health issue by international organizations worldwide. Second, different cultures view child labor differently. In international dialogue regarding child employment, one important element is defining child work as separate from child labor , which is oppressive (long hours; tedious, difficult tasks) and often dangerous. In general, child labor was legal in the United States until the FLSA was enacted in 1938. The FLSA provides for many exemptions to the child labor requirements in the U.S. For example, minors of any age may be employed by their parents at any time in any occupation on a farm owned or operated by his or her parent(s), although states may enact laws restricting such labor. Nevertheless, the U.S. National Institutes of Occupational Safety and Health (NIOSH) reported: “Farming is one of the most dangerous industries in the United States. Yet injury, illness, and death on the farm are not restricted to adults. Each year, approximately 100,000 children under 20 years of age are injured on farms and over 100 are killed.” See http://www.cdc.gov/niosh/kidsag.html.
Labor battles often ended in the courtroom, with famous lawyers representing the defendants. One of the most famous trials of a labor organizer was the 1907 trial of “Big Bill” Haywood for conspiracy to murder. With Clarence Darrow as his defense attorney, the jury found Haywood not guilty. After another decade of union organizing, Haywood was convicted of violating federal espionage and sedition laws in 1918 and when released on bail, he fled the country to join the bolshevik revolution in Russia. Other famous labor-related trials highlighted class warfare and racial discrimination, such as the trial of the McNamara brothers in 1911. The Trading with the Enemy Act of 1917, Sabotage Act of 1918, and Sedition Act of 1918 were routinely used against labor organizers and the “Palmer Red Raids” involved warrantless search, seizure, and prosecution of union organizers, including deportation of citizens.
Wagner Act prohibited certain unfair labor practices that were believed to discourage collective bargaining: (1) interfering with employees’ rights to form, join, and assist labor unions; (2) dominating or interfering with the formation or administration of a labor union, or giving a union financial or other support; (3) discriminating against employees in hiring, tenure, or any term of employment due to their union membership; (4) discriminating against employees because they have filed charges or given testimony under the NLRA; and (5) refusing to bargain collectively with any duly designated employee representative. NLRB’s main functions are (1) handling representation cases (which involve the process by which a union becomes the certified employee representative within a bargaining unit), and (2) deciding whether challenged employer or union activity is an unfair labor practice.
NLRA amended in 1947 by the Labor Management Relations Act (LMRA or Taft-Hartley Act) which declared certain acts by unions to be unfair labor practices. These include (1) restraining or coercing employees in the exercise of their guaranteed bargaining rights (e.g., their right to refrain from joining a union); (2) causing an employer to discriminate against an employee who is not a union member; (3) refusing to bargain collectively with an employer; (4) conducting secondary strike or a secondary boycott for a specified illegal purpose;4 (5) requiring employees covered by union-shop contracts to pay excessive or discriminatory initiation fees or dues; and (6) featherbedding (forcing an employer to pay for work not actually performed). NLRA amended again in 1959 by the Labor Management Reporting and Disclosure Act requiring union leadership to be more open and democratic.
False. The rule still exists, but is limited today by statutes and three common law exceptions: Public policy, implied covenant of good faith & fair dealing, and employment promises True. An employer with 50 or more employees must comply with the Family & Medical Leave Act that allows employees to take a total of 12 workweeks of leave during any 12-month period for one or more of several reasons: Birth of a child, adoption of a child, need to care for a spouse, child, or parent with a serious health condition, or employee’s own serious health condition. True.
False. FLSA prohibits oppressive child labor by any employer engaged in interstate commerce. If FLSA prohibited any form of child work or labor by any employer engaged in interstate commerce, most farm owners who are also parents across the U.S. would be in jail. False. OSHA is authorized to inspect a workplace and issue citations for violations of the act and regulations. False. A whistle-blower is an employee who publicly discloses dangerous, illegal, or improper behavior by the employer
The correct answer is (b). Employees recover only for work-related injuries that arise out of employment (close relationship between nature of employment and injury) or h appen in the course of employment (e.g., i njury occurred within time, place, and circumstances of employment).
Source: Costs of Occupational Injuries and Illnesses (University of Michigan Press, 2000), available on the PBS Frontline webpage at: http://www.pbs.org/wgbh/pages/frontline/shows/workplace/etc/cost.html
Photo is of a worker walking live power lines near a nuclear power plant.
Act has a substantially-equal-work requirement which is met if the female plaintiff ’s job and the higher-paid male employee’s job involve each of the following: (1) equal effort, (2) equal skill, (3) equal responsibility, and (4) similar working conditions.
If the two jobs are substantially equal and they are paid unequally, an employer must prove one of the EPA’s four defenses or it will lose the case. The employer has a defense if it shows that the pay disparity is based on (1) seniority, (2) merit, (3) quality or quantity of production (e.g., a piecework system), or (4) any factor other than gender.
The link is to the information on the EEOC website about how to file a complaint: http://www.eeoc.gov/charge/overview_charge_filing.html
Equitable relief may include orders compelling hiring, reinstatement, or retroactive seniority. Courts have ordered quotalike preferences in Title VII cases involving race and (occasionally) gender discrimination through consent decrees.
Prima facie means, essentially, “on its face.” From the EEOC website: “In fiscal year 2004, EEOC received 27,696 charges of race discrimination. EEOC resolved 29,631 race charges in FY 2004, and recovered $61.1 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). The EEOC has observed an increasing number of color discrimination charges. Color bias filings have increased by 125% since the mid-1990s, from 413 in FY 1994 to 932 in FY 2004.”
To be bona fide, a seniority system at least must treat all employees equally on its face, not have been created for discriminatory reasons, and not operate in a discriminatory fashion. A merit system is bona fide if it bases earnings on quantity or quality of production, or the results of a professionally developed ability test. A bona fide occupational qualification (BFOQ) must be reasonably necessary to the business in question. The BFOQ defense is applied to cases of disparate treatment and does not protect race or color discrimination. NOTE: Students love to talk about the Hooters restaurant lawsuit in which men filed suit against Hooters because they wanted the better pay of the female waitresses rather than just being cooks. Hooters management alleged that being female was a BFOQ for being a Hooters waitress, specifically, that the chain is not merely a restaurant, but that their primary mission is "providing vicarious sexual recreation." The government conducted a four-year sexual discrimination probe of Hooters, demanded a $22-million fine from the 170-restaurant chain after looking into complaints by four Chicago men , and demanded that Hooters hire male waiters, compensate any men it had turned down for jobs and set up a scholarship fund to enhance employment opportunities for men. However, the EEOC backed off its lawsuit after obtaining a $3.75 million settlement from Hooters and requiring Hooters to create new gender- neutral positions. Thus far, Hooters has settled each discrimination suit filed against the chain. The Hooters Employee Handbook requires female employees to sign that they "acknowledge and affirm" the following: My job duties require I wear the designated Hooters Girl uniform. My job duties require that I interact with and entertain the customers. The Hooters concept is based on female sex appeal and the work environment is one in which joking and sexual innuendo based on female sexappeal is commonplace. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating , hostile , or unwelcome.
Michael Slivka has been a registered nurse since 1991. Since he became a nurse, several of his nursing positions involved obstetrical duties. At Good Samaritan Medical Center, where he worked between 1993 and 1995, his duties included being present in the delivery room to assist with deliveries of infants who would later require his care in the intensive care nursery. Similarly, at Marietta Memorial Hospital, he was a staff nurse in the obstetrical department, where he received training to work in the three distinct areas of the department, namely, labor and delivery, postpartum, and nursery. In 2001, Slivka began working at Genesis Healthcare in the intensive care nursery. Before going to work for Genesis Healthcare, Slivka had applied for a position as a staff RN in the obstetrical department of Camden-Clark Memorial Hospital in January 2000. Camden-Clark informed Slivka that although male nurses were employed in other departments of the hospital, male nurses had never been hired to work in its obstetrical department due to concerns for patient privacy, staffing, and quality of care. The practice of exclusively hiring female nurses in the obstetrical department had been in effect for over 20 years. In response to Camden-Clark’s explanation for refusing to consider him for employment in the obstetrical unit, Slivka filed suit under West Virginia’s civil rights act against the hospital. Both parties moved for summary judgment. The trial court granted summary judgment to Camden-Clark on the ground that being female is a permissible bona fide occupational qualification (BFOQ) in the hiring of obstetrical ward nurses. Slivka appealed.
… federal courts examining BFOQ cases in which privacy interests are raised have modified the Dothard test by adding a third component. In cases involving nursing or other patient care positions, courts have upheld discriminatory practices based on demonstrated privacy concerns of clients…. The intimate and intrusive procedures routinely performed in the obstetrics department may well raise privacy concerns in patients. Nevertheless, since privacy interests are rooted in the beliefs and mores of individuals, we are troubled by the lack of evidence from patients themselves…. Moreover, without further development of the extent of the privacy concerns of the patients, the other portions of the BFOQ test cannot be applied…. As a consequence, summary judgment in this case is inappropriate because there are unanswered questions… Reversed and remanded in favor of Slivka.
Interestingly, cases involving government affirmative action programs typically are held to be illegal . See Hopwood v. Univ. of Texas (University of Texas had a plan for minority law school candidates, but white males sued and won because of reverse discrimination). Also see Adarand Constructors, Inc. v. Pena , involving a government plan for minority contractors; a Caucasian contractor sued and a series of controversial cases and governmental responses ensued for over a decade.
Because of the test for undue hardship, plaintiffs rarely win religious discrimination suits. From the EEOC website: “In Fiscal Year 2004, EEOC received 2,466 charges of religious discrimination. EEOC resolved 2,676 religious discrimination charges and recovered $6.0 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Quid pro quo cases usually arise when, due to an employee’s refusal to submit, she suffers a tangible job detriment of an economic nature. Quid pro quo harassment is committed only by supervisory employees, because only supervisors have the power over hiring and firing. Hostile environment sexual harassment can be inflicted by both supervisors and co-workers. In Harris v. Forklift Systems , the Supreme Court held that a mere epithet or innuendo is not actionable, but when conduct is pervasive enough to create a hostile work environment to the reasonable person, such conduct is actionable even if the plaintiff has not suffered psychological injury From the EEOC website: “ In Fiscal Year 2004, EEOC received 13,136 charges of sexual harassment. 15.1% of those charges were filed by males. EEOC resolved 13,786 sexual harassment charges in FY 2003 and recovered $37.1 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Link is to the case opinion.
It is not a violation of the ADEA for an employer to favor older employees over younger employees. From the EEOC website: “In Fiscal Year 2004, EEOC received 17,837 charges of age discrimination. EEOC resolved 15,792 age discrimination charges in FY 2004 and recovered $60.0 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
From EEOC: “In Fiscal Year 2004, EEOC received 15,376 charges of disability discrimination. EEOC resolved 16,949 disability discrimination charges in FY 2004 and recovered $47.7 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Sutton was actually a consolidated of several ADA-based claims. See Sutton v. United Airlines , Albertson’s v. Kirkingburg , Murphy v. UPS: Supreme Court rejected EEOC guidelines & held that a disability which is “treatable” is not a disability for purposes of the ADA, thus persons with diabetes, less than 20/20 vision, and other “treatable” disabilities cannot sue if they suffer discrimination because of such disabilities. Studies of reported federal cases show that ADA plaintiffs have small success rate of 2-7%. In Sutton: Facts Sutton and Hinton are identical twins who are nearsighted. They brought suit against United Airlines (United) under the Americans with Disabilities Act of 1990 (ADA) because United refused to hire them as commercial airline pilots because their uncorrected vision was worse than 20/100. Although each sister suffered from severe myopia, their vision was correctable with glasses and both sisters were able to function normally in their daily lives. The Suttons claimed that they were disabled within the meaning of the ADA either because they suffered from a physical impairment that "substantially limits . . . major life activities," or because they were regarded as having such an impairment. The district court granted United's motion to dismiss for failure to state a claim for which relief could be granted. Supreme Court Determination of disability under ADA should be made in reference to an individual's ability to mitigate his or her impairment through corrective measures. Statutory language and history of the ADA is that (1) the phrase "substantially limits" requires consideration of present, not future or hypothetical, impairment; (2) the ADA calls for individualized assessments of impairment; and (3) Congress found that approximately 43 million Americans were disabled, a number that would be far too low if Congress had meant to include all those with correctable impairments. Also, if one assumes that working is a major life activity for purposes of the ADA, poor vision cannot be regarded as a substantially limiting impairment because it has only foreclosed the Suttons from pursuing work as "global airline pilots," not from numerous other positions in the aviation industry. Affirmed.
Employee Polygraph Protection Act mainly regulates lie detector tests, which include polygraph tests and certain other devices for assessing a person’s honesty. Under the act, employers may not: (1) require, suggest, request, or cause employees or prospective employees to take any lie detector test; (2) use, accept, refer to, or inquire about the results of any lie detector test administered to employees or prospective employees; and (3) discriminate or threaten to discriminate against employees or prospective employees because of the results of any lie detector test, or because such parties failed or refused to take such a test. The act also has an antiretaliation provision. Act restricts the disclosure of test results by examiners and by most employers.
Exemptions: (1) federal, state, and local government employers; (2) certain national defense and security-related tests by the federal government; (3) certain tests by security service firms; and (4) certain tests by firms manufacturing and distributing controlled substances. The act also contains a limited exemption for private employers that use polygraph tests when investigating economic losses caused by theft, embezzlement, industrial espionage, and so forth. See the information (FAQ) about polygraphs from the American Polygraph Association at http://www.polygraph.org/faq.htm Naturally, the APA is a pro-polygraph organization. Many opposing views are available through a simple internet search.
Private-sector employees generally have no federal constitutional protection against drug and alcohol testing.
Determining reasonableness generally means balancing the employee’s legitimate privacy expectations against the government’s need for supervision and control of the workplace, with more intrusive searches demanding a higher degree of justification. Supreme Court has also held that neither probable cause nor a warrant is necessary for such searches to proceed.
As always, t ruth is a defense in defamation cases.
Telephone monitoring may be illegal under federal wiretapping law.
The link is to the case opinion. Company policies may also limit the ways that employees can use company computer systems, and often subject employees who violate the policy to disciplinary penalties such as discharge. The TBG Insurance case discusses the legal significance of these monitoring disclosure policies.
True . True. True. False. Private employers may NOT require or request employees or prospective employees to take a polygraph (lie detector) test
False . Unless otherwise specified by statute, the U.S. Constitution does not apply to private employment; public employees are protected by the U.S. Constitution. False. The ADA prohibits employers from disqualifying a job applicant or employee if the employee can, with reasonable accommodation , perform the essential functions of the job False. The two types of sexual harassment claims are quid pro quo and hostile work environment.
The correct answer is (d).
Opportunity to discuss surveillance in the workplace. Interesting websites to prompt discussion include the Electronic Privacy Information Center (www.epic.org) and the American Civil Liberties Union webpage concerning workplace privacy (http://www.aclu.org/privacy/workplace/index.html).
