Chapter 18

What is the employment-at-will doctrine? When and why are exceptions to this doctrine made? What federal statutes govern working hours and wages? What federal act was enacted to protect the health and safety of employees? Under the Family and Medical Leave Act of 1993, under what circumstances may an employee take family or medical leave? What are three defenses to claims of employment discrimination? Learning Objectives

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.

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, defamation may be actionable. Public Policy Exceptions. Whistleblowing.

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.  Wrongful Discharge

Wrongful Discharge There are three such exceptions to the doctrine of employment at will: Contract (implied covenant of Good Faith and Fair Dealing). Torts: fraud, emotional distress. Public Policy.

Child Labor. FLSA prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child. Wages and Hours. 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. Overtime Exemptions. Wage-Hour Laws

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.

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 employer’s workers’ compensation insurance policy, instead of suing the employer. Requiring most employers to carry workers’ compensation insurance.

Income Security Social Security and Welfare. 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. Lewis v. Director, Employment Security Department (2004).

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.

Family and Medical Leave 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. Nevada Department of Human Resources v. Hibbs (2003).

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.

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. Case: Smyth v. Pillsbury (1996).

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. AIDS Testing. Some state statutes restrict AIDS testing.

Employment Discrimination: 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 employee’s religious practices. Enforcement of Title VII by EEOC .

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.

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.

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 employer’s business.

Discrimination Based on Gender 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. Conway-Jepsen v. Small Business Administration (2004).

Gender Discrimination Two types of sex discrimination: Differential treatment. Sexual harassment, which itself, exists in two varieties: Hostile Work Environment. Quid Pro Quo.

U.S. Supreme Court has interpreted Title VII’s 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. Sexual Harassment

Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s 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. Hostile Work Environment

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. See 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.

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-sex harassment also violates Title VII.

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.

Remedies under Title VII Liability may be extensive. Plaintiff may receive: Reinstatement. Back Pay. Retroactive Promotions; and Damages.

Equal Pay Act of 1963 The EPA amends the Fair Labor Standards Act to prohibit gender-based discrimination in wages paid for similar jobs performed under similar conditions. Pay differentials for jobs with the same or similar jobs can be justified on the basis of seniority, merit, a piece-work system, or any factor other than gender.

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.

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.

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 Clackamas Gastroenterology Assoc. P.C. v. Wells (2003). Plaintiff must first exhaust administrative relief with EEOC.

ADA: 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-by-case basis.

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. ADA: “Reasonable Accommodation”

Defenses to Employment of 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.

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 employer’s business. Business necessity is a defense to disparate impact discrimination.

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.

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.

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.

Chapter 18

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Chapter 18