Employment Law
Chapter 1: Work and Law
Work and Society
1. In 2006 approximately 2/3 of the US population was of working age- 151.3 million people- which were employed
2. 7.0 million were unemployed of the people able to work.
3. How should the law handle the ineventable tensions which arise in the employment relationship? The law considered employment to be a matter of the private contract between the employer and the employee. In the US, the Industrial revolution and push for lasseiz faire , began to change the relationship that existed centuries earlier of master and servant to that of equals.
4. The 1st serious effort to regulate the relationship appeared at the end of the 19th century- because of growing awareness of the hazards associated with work and industries.
5. 1935 National Labor Relations act: gave employees the right to organize into unions and bargain collectively with their employers.
6. 1938 Congress enacted the Fair labor Standards Act: which provided a min. wage and premium for overtime.
7. 1963 the Equal ay act made it unlawful for employers to discriminate between men and women with respect to wages.
8. Title 7 of the Civil Rts Act: prohibited discrimination in employment on the basis of race , color, religion, sex, or national origin.
9. 1967 The Age discrimination in Emloyment Act prohibited the discrimination on the basis of age.
10. 1970: The occupational Safety and Health Act and the Mine Safety and Helath act- established the min. health and safety standards for the workplace.
11. 1973 Rehabilitation act- protected the rights of individuals with disabilities.
12. Pope John Paul described in his short article about working: He stated believed that it was man’s duty to work to win its daily bread and to the continual advance of technology/science in the community of man.
13. Note: Professor David Gregory commented in the Pope’s article by statting the without meaningful work that makes those in a desparate and poor situation- unable to advance, and therefore work must be enriched and meaningful to fulfill mankind’s desires.
14. Alain De Botton: Workers of the World Relax: described how the U.S. or the westerns belief that work should make us happy individuals. He stated how in earlier Christian times the view of labor was that of the servants and slaves, mainly thought of as chores. Then later the idea of work progressed that it was a punishment because of Adam. The modern more cheerful understandings of work came from the Renaissance in Italy- because it allowed those who were creative to a path of glory and authenticity, and to rise above the ordinary limitations. In the 18th Century the was extended beyond those who are created by thinkers like: Franklin, Rousseau, Diderot: necessity and happiness mirrored the wroth of working. Later, Thomas Jefferson explained that the US was meritocratic, where the new aristocracy of virtue and talent replaced those who were placed in a priveledged position because of birth and not merit.
15. Cynthia Estlaund: Spoke about how the workplace relationships help build positive attitudes towards relations across ethnic and racial lines. She also pointed how the workplace also helps in the development of self-esteem and sense of community.
16. Notes and Questions g. 8
17. Studs Terkel: The article focuses on two different attitudes towards working and how personal attitude affects the happiness in ones choice in employment.
18. Notes and questions pg. 11-12.
Legal Intervention
1. Bammert v. Don’s Suer Valu, Inc., (2002)
Facts: The PL is Karen Bammert an employee of Don’s supermarket for over 26 yrs. Her husband is a police officer of the town of Menomonie where they reside and work. The owner’s wife was arrested with a DUI charge in June 7, 1997. The PL husband participated in the arrest by administering the breathalyzer test. Then in Aug. 28, 1997, PL was fired by Don in retaliation for her husband’s participation in the arrest of the employer’s wife. Bammert sued for wrongful discharge and Don moved to dismiss, and lower court dismissed the PL allegation for failure to state a claim because the public policy exception did not apply to this case. The appeals court affirmed. It is being reviewed by the SCT of Wisconsin.
Issue: Whether the PL has an actionable claim for wrongful discharge and whether public policy exception to the at-will employment doctrine can be extended to a retaliatory discharge?
Rule: To state a claim for wrongful discharge under Brockmeyer, the PL must identify the constitutional, statutory, or administrative provision that clearly articulates a fundamental and well defined public policy. The Public policy must be sufficient to trigger an exception that demonstrates that a termination violated such policy, and then the burden shifting to the employer to show cause of termination.
Analysis: Although the two Wisconsin statutes used by the PL reflected a compelling public interest, but not enough. The Discharge conduct outside of the relationship by someone other than the discharged was not actionable under current law. The court determined that they could not expand the public policy understanding for the retaliation for the conduct of non-employee spouses.
Conclusion: The court affirmed the lower court’s decision.
Dissent: Judge, Bablitch, stated that there was a vested interest in the protection of public employees of the state as police officers to be protected from retaliatory processes that make these public employees’ jobs hard to cope with family and official duties.
Discussion:
Your performance is related to whether you will be terminated or not.
No rational- with at will employment.
The court discusses a Slippery slope argument where the manipulation of the police force would likely happen if you expand the relationship.
There was no cause of action because she was not affected personally.
Chapter 2: The Development of Employment Law
I. Intro
A. The Foundations of Employment Law
1) Historically employment was governed by the law of master servant, some of this old premise changed with the industrial revolution.
2) Currently legal regulation is accomplished in a variety of ways: a) Individual contracts, b) collective bargaining, and c) government regulation.
1. Master –Servant
a) The Ordinance of Labourers 1349, ENG, is considered the start of the English labor law. This ordinance was enacted after the
ease in the govt. regulating the private sector employment began as a response to the great depression.
6. Beginning in the 1960’s civil rights lawas were enacted a the state and federal level that prohibit discrimination of employment on the basis of race, color, religion, and age and disability.
7. 1970 and 80’sthe court began to undertake major reassement of the vitality of the at will doctrine- they court believed that adhering to a strict doctrine would cause harsh results.
a) Civil Service/ Public Employement
1. McAilliffe v. Major City of New Bedford, 1892
Facts: PL was removed of his position by the mayor on the finding that PL had violated the department’s rules of soliciting money or aid for any particular reason. The police was also said to be a member of a political committee which was also not allowed by the regulation. The regulation stated that a police could hold his position as long as the mayor did not remove him by a cause deemed sufficient and had a hearing. The PL filed a petition to reinstate his position claiming that the majors findings were not sufficient and that his 1st amendment rights were violated his right of expression and association. PL also argued that he had no hearing.
Issue: can a member of the police department be allowed to solicit founds or aid for any political purpose?
Rule: No member of the police department can be allowed to solicit money or funds on any pretense for political purposes.
Analysis: There was nothing in the constitution or the the statute that prevented the city from attaching obedience to the rule of adopted by the city. The PL had a constitutional right to talk his political views but did not have a right to be a policeman. Here the servant- master relationship is somewhat adopted where the PL accepted the job knowing of the restrictions and regulations. Therefore, the PL knew of his lack of adherence to t he rules and was given notice of the possible consequences of his actions take in having political affiliations.
Conclusion: The petition to return the job to the officer wasdenied by the Supreme Court.
– This rule was politically neutral.
– There are restrictions the government may have against constitutional issues.
-procedural part: due process was not sufficient, the major did not know the evidence/ and the trial was more of a show. -He has a right to due process and he argues about notice. Not having sufficient notice.
-Do you think overall Holmes gave sufficient consideration for this claim? The police assumed the risk by getting the employment of the police dept.
