CHAPTER 40 LABOR AND FAIR EMPLOYMENT PRACTICES

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CHAPTER 40LABOR AND FAIR EMPLOYMENT PRACTICES
DAVIDSON, KNOWLES FORSYTHE Business Law Cases
and Principles in the Legal Environment (8th Ed.)
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INTRODUCTION

• Labor and fair employment practices laws provide
  the framework under which workers operate and
  under which employees are regulated and
  protected.
• Labor law applies to the relationship between
  management and workers.
• Fair employment practices law deals with employer
  rights and responsibilities.

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FEDERAL LABOR LAW

• Federal Statutes.
• Unions not always a fact of life.
• Violent and divisive battles characterized
  employer and pro-union workers relations.
• Federal courts were hostile and viewed union
  activities as criminal conspiracies.
• Clayton Act passed to shield unions from
  liability under antitrust laws, Supreme Court
  decisions narrowed statutory protection.

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NORRIS-LAGUARDIA ACT (1932)

• Immunized certain activities, e.g., peaceful
  refusals to work, from federal court action.
• Authorizes boycotts and picketing.
• Barred federal injunctions in the context of
  labor disputes as well as institution of yellow
  dog contracts.
• Permitted employees to organize and collectively
  bargain.
• Aimed at keeping courts out of the labor field.

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THE WAGNER ACT (1935)

• Encourages organizing activities and bargaining.
• Allows workers the freedom to join unions.
• Collectively bargain with an employer.
• Engage in mutually beneficial activities.
• Established National Labor Relations Board
  (NLRB)
• Charged with administering and interpreting the
  unfair labor practice provisions of this law.

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TAFT-HARTLEY ACT (1947)

• Prohibits unfair labor practices by unions.
• Separates the NLRBs functions.
• Empowers the courts to grant various civil and
  criminal remedies.
• Created the Federal Mediation and Conciliation
  Service for settling disputes between labor and
  management.

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LANDRUM-GRIFFIN ACT (1959)

• Requires extensive reporting on unions financial
  affairs.
• Allows for civil and criminal penalties for
  corruption by union officers.
• Provides a bill of rights for members regarding
  elections and meetings.
• Mandates democratic procedures in the conduct of
  union affairs.

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FEDERAL LABOR LAW

• Further Issues
• Questions arise when employees select their
  bargaining representative.
• Employer resists the election/representation
  process, may attempt to decertify the union.
• Certification process may raise property issues,
  because organizers ordinarily distribute union
  literature to employees in firms.
• NLRB invalidates soliciting employees and
  distributing of literature during working hours.

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FEDERAL LABOR LAW

• Further Issues
• Wagner Act requires good-faith bargaining by
  employer and the union.
• Both sides can use economic weapons outside the
  bargaining room.
• NLRB orders are not self-enforcing, they become
  law only when imposed by a federal circuit court
  of appeals.

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LABOR

• State Laws
• State law regulating labor is preempted by
  federal law.
• Matters peripheral to federal law or of deep
  state concern are subject to state regulation.

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EMPLOYMENT LAW

• Designed to ensure equal employment opportunity
  for persons historically foreclosed from the
  workplace.
• Civil Rights Act of 1964.
• Title VII of this Act applies to employers with
  15 or more employees.
• Unions with 15 or more members or who operate a
  hiring hall and employment agencies.
• Law forbids any form of employment discrimination
  on basis of race, color, religion, sex, or
  national origin.

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EMPLOYMENT LAW

• Civil Rights Act of 1964
• Forbids disparate treatment.
• Forbids disparate impact.
• Forbids harassment.
• Affirmative Action.
• Sexual Harassment.

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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 VIIs 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.

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HOSTILE WORK ENVIRONMENT

• Hostile environment occurs when workplace is
  permeated with discriminatory intimidation,
  ridicule, insult so severe to alter the
  conditions of the victims 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.

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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.

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SUPREME COURT GUIDELINES

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

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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.

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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.

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EMPLOYMENT LAW

• Pregnancy Discrimination Act of 1978
• Mandates pregnancy be treated as any other
  disability protected by law.
• Expressly states that sex discrimination under
  Title VII includes discrimination on the basis of
  pregnancy, childbirth, or related medical
  conditions.

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EMPLOYMENT LAW

• Immigration Reform and Control Act of 1986 bans
  discrimination based on national origin or
  citizenship status.
• Equal Pay Act of 1963 prohibits discrimination in
  wages on the basis of sex.
• Age Discrimination in Employment Act of 1967
  protects workers aged 40 or older from adverse
  employment decisions based on age.

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EMPLOYMENT LAW

• The Rehabilitation Act of 1973 directs federal
  contractors to reasonably accommodate otherwise
  qualified handicapped individuals in connection
  with employment.

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ADA

• The Americans with Disabilities Act of 1990
  guarantees an individual with a disability
  equal access to public services and requires
  employers to make a reasonable accommodation in
  employment for qualified persons with
  disabilities.
• Toyota Motor Manufacturing v. Williams (2002).

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EMPLOYMENT LAW

• Civil Rights Act of 1991
• Amends earlier statutes to broaden the scope of
  protections afforded under anti-discrimination
  law.
• Prohibits race norming of employment tests.
• Allows compensatory and punitive damage awards
  and jury trials.

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EMPLOYMENT LAW

• Family Medical Leave Act.
• Mandates that eligible employees receive up to 12
  weeks of leave during any 12 month period for
  certain family related events
• Birth of a child
• Placement of a child with the employee for
  adoption or foster care
• Care of a seriously ill spouse, child, or parent
• Serious health condition of the employee that
  make employee unable to perform and of the
  essential functions of the job.

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EMPLOYMENT LAW

• Other Fair Employment Practices Laws.
• The Vietnam Era Veterans Readjustment Assistance
  Act of 1974.
• Various executive orders.
• Civil Rights Acts of 1866 and 1871.
• State law.

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EMPLOYMENT

• Occupational Safety and Health Act
• Mandates safe and healthful workplace conditions.
• Act authorizes enforcement of standards through
  the Occupational Safety and Health Administration
  (OSHA).
• Assists and encourages states efforts to assure
  safe and healthful working conditions.
• Provides research, information, education, and
  training in the field of safety and health.

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EMPLOYMENT

• Social Security.
• Provides federal benefits to the aged, the
  disabled, and other fully insured workers.
• The Federal Insurance Contribution Act (FICA)
  taxes paid by employees and employers on wages
  earned by workers fund social security retirement
  benefits and Medicare.

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EMPLOYMENT

• Unemployment Insurance
• Social Security covers unemployment insurance
  through the Federal Unemployment Tax Act (FUTA).
• Represents a coordinated state and federal effort
  to provide economic security for temporarily
  unemployed workers.

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EMPLOYMENT

• Workers Compensation.
• Provide financial benefits to reimburse workers
  for workplace related injury or death.
• Compensation does not refer to wages or salaries
  but to money paid by the employer to indemnify
  the worker.
• Imposes strict liability on the employer for
  injuries to employees during the scope to their
  employment.