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Antitrust
Rutgers University, Newark School of Law
Hyde, Alan

Employment Law Outline:

I. Overview: Legal Intervention in the Workplace
A. Historical Foundations
1. Industrial Revolution
a) Lochner-early efforts to regulate employment (b/c some jobs were hazardous and there was unequal
bargaining power) were struck down as infringing on freedom to contract.
b) Freedom of contract approach; quickly abolished though; first protective statutes here;
c) 14th Amendment– “equal protection of the laws” can be used by government employees as the basis
for discrimination suits, though it is inapplicable to private employees.
d) Civil Rights Act of 1866 (42 U.S.C. Section 1981) – states may not enact legislation restricting any
racial group’s legal rights (i.e. right to contract, right to litigate, tax burden, employment benefits). It
was aimed at protecting blacks from “Black Codes.” No minimum number of employees to sue and
employer. No administrative exhaustion.
e) Civil Rights Act of 1871 (Ku Klux Klan Act) prohibits discriminatory “state action” and conspiracies
that interfere with civil rights. If any state official deprives someone of a legal right, the person has a
private cause of action against the individual. Municipalities may be sued (fed and state may not)

2. Great Depression
a) Supreme Court upheld the National Labor Relations Act of 1935 giving employees the right to
organize into unions and the government was given the right to regulate employment.
b) Fair Labor Standards Act (1938): provides minimum wage protection and premium pay for overtime

3. Modern Approach: “Yet what is efficient, expedient, or profitable for a business is not necessarily also
beneficial to its employees, and may even be harmful.”
a) Equal Pay Act (1963): made it unlawful for Ers to discriminate between men and women with respect
to wages
b) Title VII of the Civil Rights Act (1964): prohibited all discrimination in E’ment on the basis of race,
color, religion, sex, or national origin.
c) Age Discrimination Employment Act (1967): prohibited discrimination on the basis of age
d) Occupational Safety and Health Act (1970): established minimum health and safety standards for the
workplace
e) Rehabilitation Act (1973): E’ment rights for individuals with disabilities
f) Employee Retirement Income Security Act (1974): protects pension entitlements
g) Equal Employment Opportunity Act of 1972- expanded the acts coverage and increased the EEOC’s
enforcement power.
h) The Pregnancy Discrimination Act of 1978- expanded the definition of “on the basis of sex” to include
pregnancy, childbirth and other related medical conditions.
i) The Civil Rights Act of 1991-right to a jury trial and added compensatory and punitive damages to the
available relief. The prevailing party may also get attorney’s fees.
j) Age Discrimination and Employment Act (ADEA)
k) State Fair Employment Practice Laws- Most state laws do not exempt small employers. They also
have added more protection such as marital status and sexual orientation.
l) Executive Order 11246 and 11375– Prohibits government contractors from discriminating and
requires affirmative action. Applies to subcontractors and venors with whom they deal. Race, Creed,
Color or National Origin; later sex was added.
m) Mid 1980’s – : Worker Adjustment Retraining and Notification Act; Employee Polygraph Protection
Act; Americans with Disabilities Act; Civil Rights Act of 1991; Family and Medical Leave Act

B. Functions of Work
1. Economic and social functions of society, providing goods and services and a place for people to interact
2. Psychological: “the individual person is dignified by work”; “Work helps us become more fully human” (see.
CB, p. 5 -7

C. Development of Employment Law
1. Ordinance of Labourers 1349 (p. 15). After the bubonic plague there was a shortage of workers and thus
wages soared and crops went un-harvested; prescribed a duty to work and prohibited leaving a job or
discharging a servant before the end of a term and by the Poor Laws, which used a test or residence and E’ment
to determine which community was responsible for the suppor

ining rights; minimum wages and maximum hours; social security; pensions, occupational safety and health; anti-discrimination protection

Con: barred from suing Er in tort for injuries – limited to workman’s comp.; responsible for your own taxes, etc; need your own tools/investment; more freedom to contract/dispose of your labor

The Contingent Workforce:
Part-time Workers: no benefits packages; by far the largest segment of contingent workers (almost 1/5 of entire U.S. Workforce); most common in the clerical, sales, and service industries; typically offer low pay ad few or no benefits and require few skills and demonstrate high turnover rates; worse than full-time jobs on all fronts; only 22% of PT received health insurance from work; no pension; frequently exempted from statutory workplace protections

Contract Workers: those who may be employed by a primary Er but who provides serviced to a secondary Er on a contract basis (aka Ees of subcontractors); construction, janitorial, garment manufacturing, and many other industries; the secondary Er who pays the subcontractor disclaims all responsibility for social security, unemployment compensation, minimum wage or overtime violations, or tax withholdings of any kind. THE HUGE INDUSTRY OF STAFF LEASING WOULD FALL INTO THIS CATEGORY; Vizcaino does not apply to leased Ees (p. 115)

Temporary Workers: still predominantly female and clerical; in general temp agencies take care of tax withholdings, minimum wage requirements, etc. but are unable to monitor work conditions; the statues of temporary workers as non-Ees of the recipient firm may facilitate workplace abuses such as sexual and racial harassment and