Photos: Left, 14 year old girl working as a spinner in Whitnel Cotton Mfg Co, North Carolina, 1913, in violation of the law. Right, candy store, early 1900s
Photo is of a book bindery.
Hyperlink is to the court’s opinion on the McGraw-Hill Higher Education website. 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.
Hyperlink is to the court’s opinion in pdf. 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.
Source for first two statistics: Bureau of Labor Statistics, Department of Labor, National Census of Fatal Occupational Injuries in 2010 , August 25, 2011. Source for the statistics regarding cost of workplace injuries: 2010 Liberty Mutual Workplace Safety Index.
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 &quot;providing vicarious sexual recreation.&quot; 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 &quot;acknowledge and affirm&quot; 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.
Hyperlink is to the opinion on the Findlaw.com website.
Because of the test for undue hardship, plaintiffs rarely win religious discrimination suits. From the EEOC website: 99,922 charges of discrimination were filed in 2010, but only 3.8% were based on religious discrimination.
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.
Hyperlink is to the court’s opinion on the Leagle.com website.
Hyperlink is to the court’s opinion on the Leagle.com website.
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).”
Hyperlink is to the court’s opinion in pdf.
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 case provides an example of the potential legal significance of the policies to a wrongful termination claim.
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
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.
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).
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).
1. C H A P T E R 51 Employment LawTake care of those whowork for you and you’llfloat to greatness ontheir achievements.H.S.M. Burns, quoted inMen at the Top (Elliott,1959) 51-1
2. Learning Objectives• Identify and describe legislation protecting worker safety, health, and well-being; regulating wages and hours, pensions and benefits, and income security; and that governs unionized workforces• Explain employment-at-will doctrine and its major exceptions 51-2
3. Overview• Historic rule of law: employment at will – Employer may fire an employee for any (or no) reason 51-3
4. Overview• Modern employment law: employment at will unless the employee is protected by a statute in several categories: – Employee Health, Safety, and Well-Being – Employment Security – Financial Protection – Employment Discrimination – Employee Privacy 51-4
5. Employee Health, Safety, and Well-Being 51-5
6. Workers’ Compensation• Workers’ compensation protects only employees (not independent contractors) – Some state laws exempt certain categories of employees or employers• When applicable, worker’s compensation laws allow injured employees to recover under strict liability – Removes need to prove employer negligence and eliminates employer defenses 51-6
7. Exclusive Remedy• Workers’ compensation is an employee’s exclusive remedy against an employer for covered injuries – Unless employer acted intentionally• 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 51-7
8. Work-Related Injuries• Employees recover only for work-related injuries – those injuries that: 1. Arise out of the employment • Close relationship between nature of employment and injury 2. Happen in the course of employment • Injury occurred within time, place, and circumstances of employment• See Darco Transportation v. Dulen 51-8
9. Agency Administration• In general, a state agency administers workers’ compensation systems to handle and adjudicate workers’ claims• 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 51-9
10. OSHA• 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• The Occupational Safety and Health Administration (OSHA) issues and enforces supporting regulations 51-10
11. OSHA Rules & Enforcement• OSHA requires employers to inform, train and protect employees, especially with regard to hazardous materials and equipment• OSHA is authorized to inspect a workplace and issue citations for violations of the act and regulations 51-11
12. Family & Medical Leave Act• Family and Medical Leave Act (FMLA) covers those employed for > 12 months (>1,250 hours) by an employer employing 50 or more employees• Employers who deny FMLA rights bear civil liability to the affected employee 51-12
13. Family & Medical Leave Act• Covered employees may take a total of 12 workweeks of leave during any 12- month period for one 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 – Employee’s own serious health condition• Beaver v. RGIS Inventory Specialists, Inc.: not every illness qualifies for FMLA leave 51-13
14. Financial Protection 51-14
15. Social Security• 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: – Social security – Disability – Medicare 51-15
16. Unemployment Compensation• Covering discharged workers, each state administers a system of unemployment compensation under federal guidelines – Funded by federal and state unemployment compensation taxes paid by employers – 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 51-16
17. ERISA• Employers often contribute voluntarily to employee retirement income through pension plans• Employee Retirement Income Security Act of 1974 (ERISA) imposes: – Guaranteed employee participation – Record-keeping, reporting, and disclosure requirements – Pension fund managers have fiduciary duties 51-17
18. ERISA• Remedies for ERISA violations include civil suits by plan participants and beneficiaries, equitable relief, and criminal penalties 51-18
19. Fair Labor Standards Act• 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• Exemptions: executive, administrative, and professional personnel 51-19
20. Fair Labor Standards Act• FLSA prohibits oppressive child labor by any employer engaged in interstate commerce or producing goods for such commerce• See U.S. Dept. of Labor Int’l Child Labor Program we 51-20
21. Collective Bargaining• 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 51-21
22. Union Activity• 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• The Act also prohibited employers from engaging in certain unfair labor practices and established the National Labor Relations Board (NLRB) 51-22
23. Restrictions on Union Activity• 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 51-23
24. Information for Discussion• 4,547 fatal work injuries were recorded in the United States in 2010.• 3,063,400 non-fatal injuries and illness were reported in 2010.• Cost of most disabling workplace injuries and illnesses in 2008: $53.42 billion in direct U.S. workers compensation costs, averaging more than one billion dollars per week• See OSHA’s Making the Business Case for Safety and Health 51-24
25. Thought Questions• 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? 51-25
26. Equal Opportunity Legislation 51-26
27. The EEOC• 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 – See the EEOC website 51-27
28. Equal Pay Act of 1963 (EPA)• 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 – Equal work defined as substantially equal in terms of effort, skill, responsibility, and working conditions – Unlike FLSA, EPA covers executive, administrative, and professional employees 51-28
29. Equal Pay Act of 1963 (EPA)• 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 51-29
30. Title VII of 1964 Civil Rights Act• Prohibits employers from discriminating on basis of race, color, religion, gender, or national origin• Prohibits sexual harassment and discrimination because of pregnancy• Covers all employers employing 15 or more employees and engaging in an industry affecting interstate commerce 51-30
31. Title VII Procedure• 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 – See EEOC website regarding procedure• 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 51-31
32. Title VII Remedies• If private plaintiff or EEOC wins a Title VII suit, several remedies exist: compensatory damages, reasonable attorney’s fees, and equitable relief• 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 51-32
33. Title VII Remedies• Punitive damages are available if defendant discriminated against current or prospective employee with malice or reckless indifference to plaintiff’s rights 51-33
34. Definition of Discrimination• Discrimination is refusing to hire, failing to promote, firing, or otherwise reducing a person’s employment opportunities for a person in a protected class• Two methods to prove discrimination: – Disparate treatment – Disparate impact 51-34
35. Proving Disparate Treatment• Plaintiff must show s/he was treated differently due to race, gender, color, religion, or ethnicity (prima facie case) – Example: Gaskell v. University of Kentucky• Once plaintiff proves prima facie case, the burden shifts to employer to show a legitimate and non-discriminatory reason for discrimination – Plaintiff must then prove that employer’s reason is mere pretext to win the case 51-35
36. Proving Disparate Impact• 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 – Example: height or weight limits, taking a written test• If plaintiff proves disparate impact, burden is on employer to show job- related reason 51-36
37. Title VII Employer Defenses• An employer may prevail in a Title VII claim if it can prove a legitimate reason for the discriminatory act or practice based on: – Bona fide occupational qualification (BFOQ) – Seniority – Merit 51-37
38. Henry v. Milwaukee County• Facts: – Plaintiffs (both women) filed Title VII suit alleging gender discrimination and retaliation by defendant-employer for its policy of assigning some correction officers shifts in single-sex juvenile detention facilities on the basis of sex 51-38
39. Henry v. Milwaukee County• Ruling: – Judgment for defendant affirmed in part and reversed in part • Gender-based assignments not reasonably necessary to achieve facilitys goals of privacy, security, and rehabilitation, and therefore an officers gender could not be considered a bona fide occupational qualification • But, plaintiffs did not prove their harassment or retaliation claims 51-39
40. Title VII and Religion• Employers must make reasonable accommodation for a worker’s religious beliefs unless the request would cause undue hardship for the business – The term religion is broadly defined – Undue hardship exists if accommodation imposes more than a minimal burden on an employer 51-40
41. Title VII and Sexual Harassment• Two major categories of sexual harassment are prohibited by Title VII: – Quid pro quo (this for that): when an aspect of a job is made contingent on an employee’s sexual activity – Hostile work environment: when sexual talk and innuendo are so pervasive that a hostile work environment is created for the employee 51-41
42. Title VII and Sexual Harassment• Harassers and victims may be either gender• Keeton v. Flying J, Inc. confirms that Title VII allows recovery when the harasser is a female and harassee is male• Harasser(s), individual manager(s), and the company are potential defendants 51-42
43. Ashmore v. J. P. Thayer Co.• Facts and Background: – Plaintiff sued under Title VII for same-sex sexual harassment and retaliation, and state law claims for negligent retention – Plaintiff alleged that Fye, a male employee of defendant and plaintiffs supervisor, sexually harassed plaintiffs and took adverse employment actions against plaintiffs when they complained about it 51-43
44. Ashmore v. J. P. Thayer Co.• Appellate Court Ruling: – Jury found for plaintiffs, but appellate court ruled for defendant because plaintiffs failed to notify defendant of harassment in a timely manner and “failed as a matter of law to take reasonable advantage of opportunities provided by Defendant to prevent and/or correct the sexual harassment” 51-44
45. Age Discrimination in Employment Act• Prohibits age-based discrimination against employees or job applicants at least 40 years old• Covers organizations that engage in an industry affecting interstate commerce, and employ at least 20 persons• Remedial procedures, defenses, and remedies are similar to Title VII claims 51-45
46. Americans with Disabilities Act• Prohibits employers from disqualifying a job applicant or employee if employee can, with reasonable accommodation, perform the essential functions of the job 51-46
47. Definition of Disability• Disability under the ADA is: – A physical or mental impairment that substantially limits one or more of an individual’s major life activities – A record of such an impairment, or – One’s being regarded as having such an impairment• Employer may not ask about disabilities before making a job offer 51-47
48. Americans with Disabilities Act• Act covers employers who have 15 or more employees and are engaged in an industry affecting interstate commerce• Accommodation is not reasonable if it would create undue hardship for employer• Remedial procedures, defenses, and remedies are similar to Title VII claims 51-48
49. Americans with Disabilities Act• During 1990s and early 2000s, the Supreme Court narrowed the concept of “disability”• In response, Congress enacted the ADA Amendments Act of 2008, which clarified standards for determining disability and expressed intent that the ADA be “construed in favor of broad coverage”• Fleck v. WILMAC Corp.: case allowed to proceed to trial to determine whether reasonable accommodation was provided 51-49
50. Employee Privacy 51-50
51. Overview• Employer interests in surveillance of the workplace may conflict with employee privacy interests• Unless otherwise specified by statute, U.S. Constitution does not apply to private employment – Federal privacy laws typically apply only to federal employees and state law covers private sector employees 51-51
52. Employee Polygraph Protection Act of 1988• Applies to private employers and current or prospective employees• Enforced by Department of Labor (DOL), an employer may not: – Require or request employees to take a polygraph (lie detector) test – Use or inquire about polygraph results – Discriminate based on polygraph results or an employee’s failure or refusal to take test 51-52
53. Employee Polygraph Protection Act of 1988• Certain employers exempted: government, private firms with security- related interests, private firms investigating economic loss• For violations, DOL may file suits or issue civil penalties and private parties may sue for damages and equitable relief 51-53
54. Drug & Alcohol Testing• Testing by public employers is legal under search and seizure provisions of Fourth Amendment if: – Reasonable basis for suspecting employee drug or alcohol use on the job exists – If such use could threaten public interest or public safety 51-54
55. Employer Searches• 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 – Requires balancing employee’s legitimate privacy expectations against government’s need for control of the workplace 51-55
56. Employer Searches• 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 51-56
57. Records & References• Most states allow employees access to their personnel files maintained by employers and limit access by third parties• 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 51-57
58. Employer Monitoring• Employers may monitor the workplace by closed-circuit television, video monitoring, telephone monitoring, computer workstation monitoring (keystroke counting), and using metal detectors 51-58
59. Employer Monitoring• Many firms warn employees that e-mail, voicemail, Internet usage, and other communications and transactions are subject to monitoring• Sporer v. UAL, Inc. illustrates the legal impact of these policies on a wrongful termination claim 51-59
60. Employment Security 51-60
61. Employment at Will Rule• 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• Doctrine limited today by statutes and three common law exceptions: – Public policy – Implied covenant of good faith & fair dealing – Employment promises 51-61
62. Wrongful Discharge• In states recognizing exceptions to traditional rule, a terminated employee may sue the former employer for wrongful discharge or unjust dismissal – May also include tort or contract claims 51-62
63. Public Policy Exception• Terminated employee may claim discharge was unlawful because it violated state public policy in one of three ways: – Employee refused to commit unlawful act – Employee performed public obligation such as military duty or whistle-blowing • A whistle-blower is an employee who publicly discloses dangerous, illegal, or improper behavior by the employer – Employee exercised legal right or privilege 51-63
64. Breach of Good Faith• In a wrongful discharge suit based on breach of the implied covenant of good faith and fair dealing, employee argues discharge was unlawful because it was not made in good faith or did not amount to fair dealing 51-64
65. Breach of Promise Exception• Increasingly, courts have made employers liable for breaking promises to employees made prior to or during employment• If employer breaks promises when it fires employee, it is liable for breach of contract• Sporer v. UAL, Inc : employee should have known that e-mail privacy did not exist 51-65
66. Test Your Knowledge• True=A, False = B – Employment at will is the rule of law in all fifty states. – An employer (100 employees) may not fire a man for taking a two month leave of absence to care for his seriously-ill wife. – Workers’ compensation is an employee’s exclusive remedy against an employer for covered injuries 51-66
67. Test Your Knowledge• True=A, False = B – The Fair Labor Standards Act prohibits any form of child work or labor by any employer engaged in interstate commerce. – OSHA may not inspect a workplace or issue citations for violations of the act without a warrant issued by a judge. – An employer may terminate a whistle- blower immediately because whistle- blowers make defamatory comments to the public. 51-67
68. Test Your Knowledge• Multiple Choice – Under Workers’ Compensation, employees recover only for: a) Injuries that affect an employee’s ability to do his or her job b) Work-related injuries that arise out of or happen in the course of employment c) Injuries that occur during any period of employment, whether on or off the job d) both A and B 51-68
69. Test Your Knowledge• True=A, False = B – The Civil Rights Act prohibits employers from discriminating on basis of race, color, religion, gender, or national origin. – Two methods to prove discrimination are disparate treatment and disparate impact. – Discrimination based on a BFOQ is legal. – Every employer has the right to request a prospective employee to take a pre- employment polygraph. 51-69
70. Test Your Knowledge• True=A, False = B – Unless otherwise specified by statute, protections of the U.S. Constitution do not apply to government employees. – The Americans With Disabilities Act prohibits employers from disqualifying a job applicant or employee with a disability for any reason. – The two types of sexual harassment claims are quid pro quo and undue hardship. 51-70
71. Test Your Knowledge• Multiple Choice – 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 51-71
72. Thought Questions• 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? 51-72