Summary of United States Employment Law presented to PSC 295/395 Think Like a Lawyer at University of Alabama at Birmingham (UAB), Spring 2017

1. United States Employment Law
PSC 295/395 Think Like a Lawyer

2. ● Under common law, employment is “at will.”
● Goal is to remedy the “inequality of bargaining power” between
employers and employees.
● Sets minimum social and economic rights of employees.
● Does not require paid holidays.
● Does not require paid family leave.
Federal Law Sets Minimum Standards

3. ● Federal law only establishes the floor of how employers may
treat employees, States may raise the floor.
● For example,
○ As of December 2016, 22 States had passed laws
protecting employees against discrimination based on
sexual orientation or identity.
States May Raise the Standards

4. ● Protects the rights of employees to organize into trade unions;
● Encourages collective bargaining;
● Empowers employees to strike;
● Created the National Labor Relations Board.
The Act does not apply to:
● Workers who are covered by the Railway Labor Act;
● Agricultural or domestic employees;
● Federal, state or local government workers;
● Supervisors and some close relatives of individual employers.
National Labor Relations Act of 1935

5. ● Establishes a minimum wage floor.
● Discourages more than 40 hour work week.
○ 1.5 Multiplier for every hour over 40.
● Protect children from “oppressive child labor.”
● Only applies to employers engaged in interstate commerce
(which includes creating goods which enter into commerce).
● Protections do not extend to professional, administrative, or
executive employees.
● Protections do not extend to ministers employed by a religious
organization.
Fair Labor Standards Act of 1938

6. ● Employer attempts to wiggle out of coverage usually fail:
○ Independent contractors;
○ Breaking large company into several smaller ones
(Enterprise);
○ Requiring off-the-clock work;
○ Claiming for-profit work as non-profit:
■ Nursing homes;
■ Day cares;
■ Schools;
■ Hospitals and federal governments.
Fair Labor Standards Act (cont’d)

7. ● In 1961, FLSA extended a private right of action for individuals
to sue for backpay.
● In 1965, FLSA expanded to prohibit unequal pay if the basis for
the inequality was gender.
● In 1966, FLSA expanded to cover local government workers
(but not legislative employees).
Fair Labor Standards Act (cont’d)

8. ● As of 1967, protects employees from discrimination based on
age:
○ For employees (or applicants) over 40.
○ Employers can favor workers over 40.
○ ADEA can be violated if the same conduct is applied to all
employees but it has a disparate impact on employees
over 40.
○ ADEA can be violated if the work environment is adverse to
employees over 40 even if the conduct is from non-
employees.
■ Isolated conduct probably does not violate ADEA.
Age Discrimination in Employment Act

9. ● Passed in 1983, was designed to provide migrant and seasonal
farm workers with protections concerning:
○ pay;
○ working conditions; and
○ work-related conditions.
● Requires farm labor contractors to register with the US
Department of Labor and assure necessary protections for
farm workers, agricultural associations, and agricultural
employers.
Migrant and Seasonal Agricultural Worker
Protection Act

10. ● Allows eligible employees to take up to 12 work-weeks of
unpaid leave during any 12-month period:
○ to attend to the serious health condition of the employee,
parent, spouse or child;
○ or for pregnancy or care of a newborn child, for adoption or
foster care of a child.
○ Eligibility requires employment for at least 12 months
(1,250 hours).
○ Some employers exempt:
■ Less than 50 employees;
■ Elected officials.
Family and Medical Leave Act of 1993

11. ● In 2010, Patient Protection and Affordable Care Act expanded
FLSA to require employers to provide a shielded area other
than a restroom for mothers to nurse their children.
● In 2016, President Obama, by presidential memorandum,
expanded FLSA to all employees earning a salary of less than
$913 per week must be paid overtime, effective December 1,
2016. (Currently enjoined pending judicial review).
FLSA Revisited

12. ● Ensure that employers provide employees with an environment
free from recognized hazards, such as:
○ exposure to toxic chemicals;
○ excessive noise levels;
○ mechanical dangers;
○ heat or cold stress;
○ or unsanitary conditions.
● Created the Occupational Safety and Health Administration
(OSHA) and the National Institute for Occupational Safety and
Health (NIOSH).
Occupational Safety and Health Act of 1970

13. ● Prohibits discrimination by covered employers on the basis of
race, color, religion, sex or national origin.
● Many exemptions:
○ Only covers employers "who have fifteen (15) or more
employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year;"
○ Does not extend to certain federal employers.
Civil Rights Act of 1964

14. ● Prohibits discrimination against an individual because of his or
her association with another individual of a particular race,
color, religion, sex, or national origin, such as by an interracial
marriage.
● Has been amended to prohibit discrimination based on:
pregnancy, age, and disability.
Civil Rights Act (cont’d)

15. ● Employers shall not discriminate against "a qualified individual
with a disability."
● Applies to job application procedures, hiring, advancement and
discharge of employees, job training, and other terms,
conditions, and privileges of employment.
● Many employers exempt:
○ Employers with less than 15 employees;
○ employment agencies;
○ labor organizations;
○ and joint labor-management committees.
Americans With Disabilities Act of 1990

16. ● Employers required to provide reasonable accommodations,
such as:
○ Special equipment;
○ Special schedule;
○ Special methods of communication;
○ Etc.
Americans With Disabilities Act (cont’d)

17. Best Practice
Treat employees like you would want to be treated.