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Labor and Employment Law


Caused by conduct that 'goes beyond the bounds of decency' (unfounded ... to determine whether a discharge was wrongful under an employment contract or a ... – PowerPoint PPT presentation

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Title: Labor and Employment Law

Labor and Employment Law
  • An overview

Authoritative sources of law in the US
  • Federalism Two systems, both operating directly
    on individuals
  • Supremacy clause
  • Xth Amendment
  • Federal and State Constitutions
  • Statutes
  • Agency regulations
  • Court decisions

Some of the roles played by courts
  • Restraining legislators and executives by
    judicial review under the constitutions
  • Interpreting statutes and regulations
  • Policing agency fidelity to statutes
  • Developing and applying common law doctrines

Some common law categories
  • Tort
  • Physical injury
  • Infliction of mental distress
  • Harm to reputation
  • Invasion of privacy
  • Contract
  • What promises should we enforce?
  • What is a breach?

Physical Safety
  • Preventing injury and disease
  • OSHA (1970)
  • State worker safety laws (section 18 laws)
  • Specialized safety statutes
  • Mine workers
  • Transportation employees
  • Nuclear workers
  • Laws protecting the general public (FIFRA, etc)

Physical Safety (cont.)
  • Compensating for injury and death
  • Actions for damages
  • Traditional tort principles
  • FELA
  • Workers Compensation
  • Disability Benefits under Social Security
  • Vocational Rehabilitation Programs
  • Private insurance

  • Two principal duties
  • General duty clause . . . furnish . . .
  • employment and a place of employment . . . free
    from recognized hazards . . Likely to cause death
    or serious physical harm . . . .
  • Standards shall comply with occupational safety
    and health standards promulgated under this Act

OSHA (cont)
  • Enforcement
  • Inspections (no advance notice warrant may be
    required, but only administrative probable
    cause needed to get one)
  • Proposed penalties usually include (a) civil
    penalty (b) abatement
  • Review by OSHRC
  • Further review by US Circuit Court of Appeals

Workers compensation
  • Contrast with tort recovery
  • In tort, injured worker must prove employer fault
    (usually negligence) in workers compensation,
    most fault is not relevant, only connection
    between injury and employment
  • In tort, damages are determined on basis of
    individual economic and non-economic loss in
    workers compensation, recovery is limited
  • Medical treatment
  • Partial wage loss, sometimes based on injury
    severity, sometimes on actual wage loss
  • Death benefits for dependents

Privacy and Reputation
  • Tort law principles
  • Defamation
  • Right of privacy
  • Intentional infliction of mental distress (the
    outrageous conduct tort)

  • Defamation A (a) false statement (b) published
    to one or more persons (c) about another person
    that is (c) defamatory in nature, made (d)
    without privilege, under circumstances such that
    the publisher is (e) at fault.

Common law Right of Privacy
  • Appropriation
  • Placing a person in a false light
  • Public disclosure of private facts
  • Unreasonable intrusion

Intentional infliction of Mental Distress
  • Caused by conduct that goes beyond the bounds of
    decency (unfounded accusations of crime
  • Many courts search for objective evidence of
    harm, such as inability to work

Privacy and Reputation (cont.)
  • Federal statutes
  • FOIA and the Privacy Act of 1974
  • Fair Credit Reporting Act
  • OCCSSA and ECPA (interception as key)
  • Employee Polygraph Protection Act
  • Drug-Free Workplace Act
  • Americans with Disabilities Act
  • HIPPA (medical records)

Privacy and Reputation (cont.)
  • State statutes
  • Acts going beyond federal protections credit
    reporting, telephone interception
  • Medical records
  • Confidentiality and accuracy of employment
    records (E.g., Illinois record correction

Privacy and Reputation (cont.)
  • Federal constitutional protections (I, IV, V,
  • The public-private sector distinctions
  • Public employees
  • Private sector employees, government intrusion
  • State constitutional protections
  • Clones of federal language
  • Extensions California, Alaska

Discrimination in Employment
  • Federal constitutional protection (usually public
    workers) under the Equal protection clause
  • Employment by government not a fundamental
    right (Murgia)
  • Equal protection only intentional
    discrimination forbidden
  • Racial discrimination strict scrutiny
  • Gender discrimination intermediate level of
  • Age rational basis test

Discrimination (cont.)
  • Statutory bans
  • Title VII (1964 Civil Rights Act, as amended in
  • The Post-Civil War statutes
  • ADEA
  • ADA and the Rehabilitation Act
  • Equal Pay Act
  • Title IX of the Higher Education Amendments Act

Title VII
  • Theories of Discrimination and Burdens of Proof
  • Disparate treatment individual cases
  • Plaintiffs prima facie case (a) protected
    status (b) applied for job (or promotion, etc.)
    (c) qualified (d) refused by employer (e) job
    remained open. (Alternative smoking gun)
  • Employer response articulate legitimate,
    nondiscriminatory reason for its action
  • Plaintiffs response evidence that employers
    reason is a pretext
  • Ultimate burden of proof on plaintiff
  • Mixed motive cases Desert Palace (April 2003)
    suggests overlap with pretext implications?

Title VII (cont.)
  • Disparate treatment group cases
  • Usual enforcement tool Class actions under Rule
    23 or pattern or practice action by EEOC
  • Plaintiffs proof usually statistical, based on
    null hypothesis that employers work force will
    look like either (a) community at large (jobs
    not requiring particular skills or (b) actual or
    potential applicant pool (jobs requiring skill,
  • What is the relevant community?
  • What is a significant statistical disparity?

Title VII (cont.)
  • Disparate impact The Griggs decision
  • Plaintiffs likely proof An employer practice
    (such as use of a test score cutoff) has the
    effect of screening out significantly more men
    than women, more African Americans than whites,
    or the like.
  • Employers likely response Business need
  • Special treatment for professionally developed
    tests and bona fide seniority programs

Title VII (cont.)
  • Sexual harassment
  • Quid pro quo near absolute liability
  • Hostile environment
  • Plaintiff must show conditions severe enough to
    affect working conditions
  • Employer may defend on basis of effective program
    to combat such conduct
  • Same sex harassment is a possible source of

Equal Pay Act
  • Equal pay for equal work not comparable
    worth but very small differences in duties do
    not likely matter
  • Exceptions (i) a seniority system (ii) a merit
    system (iii) a system which measures earnings by
    quantity or quality of production or (iv) a
    differential based on any other factor other than

Wage and Hour Regulation
  • Fair Labor Standards Act
  • Contract Labor Standards
  • Davis-Bacon (construction)
  • Walsh-Healey (goods)
  • Service Contract Labor Standards Act
  • Portal-to-Portal Act
  • Garnishment Restrictions
  • State laws (wage payment, minimum wage)

  • Minimum wage standard
  • Current 5.15 an hour
  • Overtime pay requirement
  • Current 1 ½ the individuals regular rate (not
    the minimum wage) for each hour over 40 in a work
  • Recent controversy Amending the white collar
    exemptions, and thus eliminating overtime pay
    requirement for a (hotly contested, but
    significant) number of workers

Pensions and Fringes
  • Pensions (defined benefit, defined contribution,
    accrual, vesting, the cash balance plan
  • Welfare plans (preemption of state law problems)
  • Mandated benefits (FMLA, workers compensation,
    UI, etc.)
  • OASDI and FICA (Social Security)

Termination of Employment
  • The traditional at will doctrines
  • Breach of contract actions the burden of proof
    and the interpretation rules
  • Tort actions
  • Judicial modifications
  • The public policy exception
  • Evidence of contract terms (and the disclaimer
  • Duty of Good Faith and Fair Dealing

Termination (cont.)
  • Statutory protections
  • Private sector
  • Anti-retaliation bans (including whistleblower
  • General statutes The Model Act and the Montana
  • Public sector (merit systems and teacher tenure

Termination (cont.)
  • General problems
  • Constructive termination
  • Good cause
  • Using arbitration as a forum to determine whether
    a discharge was wrongful under an employment
    contract or a statute (Gilmer and its progeny)

Collective Rights
  • Common law hostility
  • Federal Statutes affecting the Private Sector
  • Railway Labor Act
  • Norris-LaGuardia Act
  • Wagner Act (NLRA)
  • Taft-Hartley Act (LMRA)
  • Landrum-Griffin Act

National Labor Relations Act
  • Section Seven Statement of Collective Rights
  • Section Eight Unfair Labor Practices
  • Section Nine Selection of Representatives
  • Section Ten Enforcement
  • Role of General Counsel as prosecutor
  • National Labor Relations Board as specialized
    court-like tribunal
  • Review by Circuit Courts of Appeal

Collective Rights (cont.)
  • Enforcement of collective agreements
  • The typical grievance-arbitration system
  • The Duty of Fair Representation owed by union
    to workers it represents
  • In negotiating
  • In grievance handling
  • Public Sector Statutes
  • Do public sector workers need a right to