Labor and Employment Law Qinglan Bai

1. Labor and Employment Law Qinglan Bai

2. § 1: Origins and the Contemporary Era • 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 statutes.

3. The modern statutory scheme emphasized in the course includes: • The Equal Pay Act of 1963 (Amending the Fair Labor Standards Act of 1938) prohibiting wage discrimination against female employees; • Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e, et seq., applicable to both public and private employers, labor organizations, and employment agencies – and establishing protections against discrimination based on race, color, sex, religion and national origin; • The Age Discrimination in Employment Act of 1967, prohibiting discrimination against employees age 40 or older;

4. Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §12111, as amended in August, 2009, prohibiting discrimination against qualified individuals with disabilities and reaffirming the statutory Title I definition of “disability”; • The Civil Rights Act of 1991 (Amending certain sections of Title VII and the ADA), providing for compensatory and punitive damages for intentional discrimination, and for jury trials in Title VII cases, and overturning the Wards Cove line of cases and reaffirming the basic holding of Griggs v. Duke Power (See 42 U.S.C., §2000e-2(k).

5. § 2: Employment at Will & Employee Termination Claims • Traditionally, employment relationships have been by common law doctrine of “employment at will.” • Either party may terminate at any time for any reason. • Exceptions: Contract, Tort, Public Policy.

6. Wrongful Discharge • The doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability. • In US, some states however recognize one or more judicial exceptions to this rule, while some states recognize none.

7. Doctrines and Theories against Various Terminations 1. Good Cause Statutes, Implied Covenant of Good Faith, • & the Life-Cycle Theory of Employment • 2. Promissory Estoppel • 3. Tortuous Interference with Contract Rights • 4. Discrimination Statutes • 5. Anti-Retaliation, Whistleblowing, & Free Speech Rights

8. Employee Claims Other than for Termination • 1. Claiming Wrongful Actions Short of Termination • 2. Infliction of Emotional Distress; Abusive Supervision • 3. Harassment: Sexual, Discriminatory, or Retaliatory

9. §3: Employee Wages & Benefits • Hours and Wages. • the prevailing wage • the beginning of minimum wages. • Exception: eg. US Fair Labor Standards Act (FLSA) -- an extension of wage and hour regulation to workers in interstate commerce.

10. The Minimum Wage, Overtime Wages, & Wage Deductions 1. The Required Rates • 2. Exempt vs Nonexempt Employees • 3. What Compensation Counts? • 4. What Hours Count? • 5. Employers Charging Employees for Expenses & Losses • 6. Enforcement & Remedies

11. §4: Employment Discrimination Law • Employment discrimination:discrimination in hiring, promotion, job assignment, termination, and compensation. • Laws often prohibit discrimination on the basis of: • Race or color • Ethnicity or national origin • Sex or gender • Pregnancy • Religion or creed • Political affiliation • Language abilities • Citizenship • Disability or medical condition • Age…

12. Intentional and Unintentional Discrimination • “Disparate-Treatment” Discrimination • Plaintiff is a member of a protected group • Plaintiff suffered an adverse employment action • Plaintiff is otherwise qualified to hold the position (minimally) • the Defendant's actions were motivated by discriminatory intent.

13. “Disparate Impact” Discrimination. • a disproportionate “adverse impact”, caused by • an employment practice or policy ,on • members of the protected class, without • "business necessity" • A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its effect.

14. adverse impact: • substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race or sex group. • Protected class: • The term describes characteristics or factors which can not be targeted for discrimination and harassment, such as race, gender, age.

15. BFOQ :a bona fide occupational qualification is a quality that employers are allowed to consider when making decisions on the hiring and retention of employees • – qualities that when considered in other contexts would constitute discrimination .Such qualifications must be listed in the employment offering.

16. § 5. Race, Color and Gender Discrimination • Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or Gender “Sex” Discrimination. • Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.

17. Gender “Sex” Discrimination • 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.

18. Gender Discrimination • Two types of sex discrimination: • Differential treatment. • Sexual harassment: • Hostile Work Environment. • Quid Pro Quo. • Case 34.1:Carey v. Mount Desert Island(1998).

19. Sexual Harassment • Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the 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: • Hostile Work Environment. • Quid Pro Quo.

20. Hostile Work Environment • 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.

21. Harassment by Supervisors • Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. • Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees. • Case 34.2:Jin v. Metropolitan Life Ins. Co. (2002).

22. US Supreme Court Guidelines • Faragher v. City of Boca Raton(1998) • Employer (city) could be liable for supervisor’s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees. • Burlington Industries v. Ellerth(1998). • Company liable for harassment even though the employee suffered no adverse job consequences.

23. US Supreme Court Guidelines • Employers have a defense if: • They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures. • That the employee suing for harassment failed to follow these policies and procedures.

24. 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.

25. Age Discrimination • The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. • Under Kimmel v. Florida Board of Regents(2000), states are immune from private lawsuits brought in federal court under 11th Amendment.

26. Discrimination based on “Disability” • 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.

27. §5: Labor Relations Law Labor Union (Trade Union) • bargains with the employer on behalf of union members • negotiates labor contracts (collective bargaining) with employers • negotiation of wages, work rules, complaint procedures, rules governing hiring, firing and promotion of workers, benefits, workplace safety and policies

28. Labor Union Laws in US[2] • National Labor Relations Act. • Establishes the right of workers to strike and engage in collective bargaining. • Labor Management Relations Act. • Prohibits certain unfair union practices such as closed shops. • Labor-Management Reporting and Disclosure Act. • Regulates the internal operations of unions and outlaws hot-cargo agreements.

29. Union Organization • Elections. • Election Campaigns. • The National Labor Relations Board regulates the rights and obligations of employers and workers in the election process. • Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities. • Case 33.2:Associated Rubber v. NLRB (2002).

30. Collective Bargaining • Collective bargaining is the process by which management and labor negotiate the terms and conditions of employment. • The NLRB will certify an exclusive bargaining agent for labor. • Both labor and management must bargain in good faith, but the law does not require that they reach an agreement.

31. Strikes • There are two basic forms of strikes: • Economic Strikes. • These are strikes over wages. • Workers can be replaced by permanent replacements. • Unfair Labor Practice Strikes. • These are strikes alleging that the employer has committed an unfair labor practice.

32. § 6:Health and Safety • Intentional: “Disparate-Treatment” Discrimination. Applicant must prove: • She is member of a protected class; • Applied, qualified and rejected for job; and • Employer continued to seek applicants. • Negligent: “Disparate Impact” Discrimination. • Non-protected applicant sues Employer who tries to integrate members of protected classes into workplace.

33. 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.

34. Workers’Compensation 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.

35. Basic Benefits and Coverage • a. Benefits and procedures • b. Who is an employee? • c. “Arising out of and in the course of employment”

36. Exclusivity of Remedies • a. The fundamental bargain • b. Exception for intentional acts • c. Non-physical torts