EMPLOYMENT LAW
PROF. CLANCY
CHAPTER 1 WORK & LAW
A. Work & Society
Historical Background:
● 1935 – Federal Government enacted the National Labor Relations Act. It does not protect individual rights. It protects group’s rights.
● 1938 – Congress enacted the Fair Labor Standards Act. If established a minimum wage protection and overtime pay. These were minimums that need did not require an employer to do more. Unions may get a bargain up from this “floor” set by the FLSA.
● these pervasive regulations existed if an employer did not discharge employers without “just cause”. These Acts make employer give up some of their empirical powers.
● Unionization has declined. Can debate whether higher unionization would have prevented such pervasive measures by the federal government.
● 1964 – Title VII Civil Rights Act prohibited all discrimination in employment on the basis of race, color, religion, sex, or national origin. IT was aimed at unions and employers. It gave employees a private cause of action. Other Acts must be brought by a government agency.
Age Discrimination in Employment Act: All ages 40 and higher.
The Occupational Safety and Health Act established minimum health and safety standards for the workplace. State plans must satisfy OHSA or else its preempted by the federal act.
● 1974 – Employee Retirement Income Security Act: protect pension entitlements. Prior to OHSA and ERISA, safety and pension were regulated by the States.
If “just cause” is established it gives the employee a cause of action if dismissed for any arbitrary reason. Ex. A discharge that harms the public b/c employee reports workplace for illegal dumping). The K and Tort claims that may arise are derived from common law.
● Other C/L c.o.a.’s are defamations, fraud (employer misrepresentation), workplace privacy (drug tests, surveillance).
●1980’s – American with Disabilities Act, Family and Medical Leave Act, Employee Polygraph Protection Act enacted. States passed their own versions of the federal legislation, in some cases providing greater protection than the federal law.
As a result, arbitration had been uses to resolve these conflicts of which there are two types:
1. Union Arbitration – Union and Employer. Most have an arbitration agreement clause. Essentially, employee waives their right to strike. Gives Employee K rights enforceable against the employer.
2. Non-Union Arbitration – Sign employee K to go to arbitration and not the court.
Public employees have more rights than private employees.
B. Legal Intervention
Wagenseller v. Scottsdael Hopsital
Issue: Does ∏ have a c.o.a. under Title VII under a c/l theory of express/implied k and a claim of indecent exposure.
Court:
1. Employer’s Rights to terminate “at will” are breached and give employee an c.o.a. for wrongful termination
2. The Court finds that the indecent exposure claim is sufficient violation of the policy embodied in the statute of wrongful termination.
Prof: Should the judiciary exercise the c/l and decide what the policy is?
CHAPTER 2 THE DEVELOPMETN OF EMPLOYMENT LAW
A. The Foundation of Employment Law
1. Master Servant
2. Employer-Employee
Lemmerman v. A.T. Williams Oil Co, (1986)
Issue: Whether ∏ was an employee of the ∆. Who is an employee?
Facts: 8 year-old boy “worked” at a store that his Mom was a cashier at and frequently brought ∏ to while she was working.
Holding: ∏ is am employee of the ∆-store and not an employee of the manager who assigned him the tasks b/c ∏ was not working for the manager for his own personal affairs.
Page 23 Worker’s Compensation: (An Exclusive Remedy Doctrine)
Is an insurance for employee in work related accidents. It is limited liability of employer and coverage for employee that is limited b/c employee can’t sue employer. A statutory trade-off; immunity from suits by employee and employee has easier access to benefits.
But, ∏ could have 3rd party action against manufacturers. Worker’s Compensation forecloses tort claims and is deemed an exclusive remedy doctrine.
3.Employment At Will
Clarke v. Atlantic Stevedoring Co. (1908)
Issue: ∏ fired b/c of their race.
Facts: ∏ is an “at will” employee under the c/l meaning.
Court: Found for ∆. ∏ at-will
Payne v. Western RR (1884) p. 30
Facts: RR discharged its employees for any reason and Ct. upheld.
Illustrates the 3 aspects of “at will” employment for any reason.
Store owner was blacklisted by the RR. Sues for tortious interference
1. good cause 2. bad cause 3. no cause
GANT
– If you are fired because you tell the truth, why doesn’t the public employee at will
Henry (1891)
Facts: ∏ discharged b/c there were $ problems in his department even though there was no evidence that ∏ was responsible. The ∆ then told newspaper that ∏ was dishonest.
Court: No action against the ∆ RR.
●Both of these cases illustratethe court’s favoring the employer.
B. Sources of Modern Employment Law
1. Civil Service/Public Employment
McAuliffe V. City of New Bedford (J. Holmes Mass. 1982)
Facts: ∏ fired from his police job b/c he was a member of a certain political committee. In the case of public employment or other services which t
equiring higher pay for overtime and prohibited the use of child labor in goods of interstate commerce.
After WWII unions became very powerful and in response the LMRA or Taft-Hartley Act was passed. It amended the NLRA to give employees the right to refrain from union activities, expanded the NLRA from 3 to 5 members and added a series of prohibited unfair labor practices by unions. The NLRA is based on the Commerce Clause and covers businesses “affecting commerce”. The NLRA excludes: federal and state employees, agricultural workers, supervisory employees, and RR and airline workers.
The vast majority of the NLRA’s actions are concerned with (1) conducting and certifying the results of union representation elections and (2) investigating and prosecuting unfair labor practices brought by employees, unions and employers.
Section 8(a)(1) of the NLRA makes it unfair labor practice for an employer to “interfere with, retrain or coerce employees in the exercise of their rights to self-organization and collective bargaining. Section 8(a)(5), 8(b)(3) and 8(d) require that the union and employer bargain in good faith over wages, hours and other terms and conditions of employment. The NLRA does not require that both sides reach and agreement. Disputes between labor and management are usually subject to arbitration in accordance with a collective bargaining agreement. 8(a)(3) outlawed the closed shop by adding a grace period of at least 30 days before an employee can be required to pay union dues or fees. It banned union fees and dues unless membership is made available to the employee on the same terms as to other members. This section legalized the union shop whereby any employee may be required to become a union member in order to retain a job, although the employee need not be a member at the time of hiring and has a grace period of at lease 30 days to join the union. See NLRB v. GM (legalized union shops)
Instead of using economic forces, they agree to settle the dispute via arbitration (quid pro quo). Union representative is the negotiator and not the individual employee.
