Employment Law Outline

Employment Law Outline
1. Various Acts and legislation for employment law
a. 1935- National Labor Relations Act- right to organize unions and bargain collectively to obtain better working conditions
b. 1938- Fair Labor and Standards Act- minimum wage and overtime pay
c. 1963- Equal Pay Act- unlawful to discriminate pay based on sex
d. 1964- Title VII and Civil rights Act- Prohibited discrimination basis of race, color, religion, sex, or national origin
e. 1967- Age Discrimination- prohibited discrimination on basis of age
f. 1970- Occupational Safety and Health Act- Minimum health and safety standards for the workplace
g. 1974- Employee Retirement Income Security Act- Protect pension entitlements
Employer/Employee

Employer Interests: core economic interest cost of destabilizing the workplace versus the undermining of morale by the employee, the cost of replacement and the chance the new hire will be just as bad. Other issues, employer’s right to control the workplace, called management prerogative, employer reputation.

Employee Interests: Losing the source of income, how long does it take to get another job, personal identity and social status. Fairness, is it discriminatory to fire them, privacy interests.

Societal Interests: Economic interests, person is no longer economically productive to society, direct burdens on society: unemployment requires government assistance, significant direct costs. Other social interests: interest in protecting workers from discrimination or from being fired for social action

Employee

i. Someone who is told how to do something, what to do, how to do it, in a timeframe
ii. Exercising control is a major factor
iii. Trained by the employer
iv. Employer has the tools and means of production
v. Employer takes the risk for liability and pays for overhead
vi. longstanding continuing relationship
vii. generally full time is required
viii. Doing work on the premises of the alleged employer
ix. payment of business or travel expenses covered
x. services are integrally related to the business of the employer or product employer produces
xi. Economic Reality of the circumstances for hiring

Independent Contractor

i. They decide how they want to do the job, they just need to finish by the deadline
ii. paid for the job in full, not hourly
iii. pays for the tools, travel, transportation
iv. not covered by insurance
v. realization of self of profit or loss
vi. possibly works for more than one employer at a time

Rule: Just calling someone an independent contractor doesn’t make it so, it depends on the specifics of their job

Vizcaino v. Microsoft

Facts: The employees bargained for a position as freelancers, but the Court didn’t take into account their contractual intent. The actual realities of the relationship are more important. Everything the “employees” signed said they were independent contractors that didn’t effectuate a waiver of benefits because what you call yourself doesn’t matter. Employees subject to misclassification turned around and sued for the employee stock option plan once the IRS made Microsoft change their classification to employees.
Rule: Contract predicated on a mutual mistake allows the parties to rescind and rewrite the contract. Here they didn’t rescind the contract but they won’t treat it as an enforceable contract.

Rule: Nepotism (favoring of blood relatives over others) is not Discrimination (Economic Reality Test)

Kotch v. Board of River Port Pilot Commissioners, US Supreme Court, 1947.

Two approaches to find public discrimination, one is that state action favoring one protected group.

The state has to affect through its agency so we have state action.
Con Law analysis: Then we need to classify the groups, strict (it is automatically suspect on race, national origin, alienage), intermediately suspect (gender), is there a rational basis for the action? (applies to everyone else)
The classification being created here, who is benefited, who is not?

Rule: Nepotism is favored and non kin is unfavored, this is a rational basis test.The majority says there is a rational basis, who have to grow up on the river, more discipline, the gov. interest being served is having good pilots. This is rationally related to that government interest.
Blood relation is not a suspect class requiring strict scrutiny by the court
Dissent: If qualification for blood relation different than race? The dissent says it is similar to a racial discrimination, but the problem is there are people from the same race that are discriminated against. It is not clear the intent is based on race, it is based on family, the equal protection clause requires discriminatory intent not just discriminatory effect.

Rule: Just Hiring one ethnicity is not discrimination without Intent to Discriminate

EEOC v.Consolidated Services Systems, 7th Cir., 1993.

Facts: Hiring done through referrals and that effectuated his workforce of being almost entirely Korean. The EEOC said it is discrimination to hire just Koreans and he had a huge percentage of Koreans when there were very few in the workforce.
Rule: This word of mouth referral system is not discrimination because there were no intentional discriminatory acts. This was litigated as disparate-treatment theory, which requires intent, here no intent
Reasoning: There is no requirement to post every position publicly; it is too costly and not effective. He may have like the result of what took place but there was no evidence that he intentionally chose this system in order to discriminate. The court says the method used was a cost effective method and that may have been the only intention, to save money.

Hiring Process

Rule: You can ask for verification of authority to work in US but not before hiring because it may lead to discrim.

Collins Foods International, Inc. v. Immigration & Naturalization Service, 9th cir., 1991.

Reasoning: It would appear discriminatory to ask based on a suspicion that they might be undocumented. We don’t want to burden the employer too much so not looking at the back is not considered constructive knowledge. If you make it too hard the employer may discriminate based on national origin.
Employer satisfies verification standards by examining documents so long as the document on its face appears to be genuine to a reasonable person
Hoffman Plastic Compounds v NLRB

Sanctions and remedies imposed by NLRA were enough where the employee was an illegal…awarding back pay trivializes immigration laws
Court seems to feel that immigration regulations trumped labor law in this circumstance where the NLRA had provided remedies and sanctions on the employer

Residency Requirements
1) Wardwell v Board of Edu.
a) Constitution only protects INTERstate travel not INTRAstate travel
b) Where a continuing residency requirement is only affecting INTRAstate travel the rational basis test is applied

Application Form:

EEOC enforces Title VII of the Civil Rights Act, certain questions are prohibited as evidence of discrimination, the first set of protected classes: race, sex, national origin, color, familial status, age
Are these relevant to the decision making process? Some say yes, policy says no there is no legitimacy

If we allow questions about the protected classes they are given legitimacy as criteria for hiring
Rule: We say no these should not be criteria used in hiring.

Checking the background give, ex. dates of degrees attained are made after the initial hiring decision
Employers can get this info by inferring into the characteristics:

Age: You can figure out age based on the past work experience and the degrees attained.
Sex: Look at the first name, or look at the school sometimes it might be a girls or boys school, or military history but nowadays not so clear.
Race and National Origin: Look at where they lived, went to school, or name

Interviews: What do they want to find out?

Personality judgments, how articulate you are, they may ask set questions
Impermissible questions: Marital status, child bearing, child care questions

i. They ask to find out about reliability, why ask women? They get pregnant and there may be a long absence, male employees can take four weeks off.
ii. Most men don’t take advantage of the Family Medical Leave Act out of fear they would be discriminated against that they are the primary caregiver.

Stratagems for getting the impermissible questions answered: Talking about their families informally and then asking the employee if they have problems with child care, family plans, etc.

i. You can avoid illegal questions by leading them away from the question, lying

Rule: You can terminate for a lie when it is volunteered, but employer cannot ask illegal question

Lysak v. Seiler Corp., Mass, 1993.

Facts: She volunteered that she was not planning to have any more kids, but she was lying because she was pregnant at the time, so she volunteered false information. She tells the employer she was pregnant three months into the job and he fires her for betraying him.
Reasoning: The employer hadn’t asked the question, are you pregnant and are you planning to have kids. If she had been asked the questions and then you lied it would be okay. You can lie in response to an illegal question so then it would have been okay. Here there was no illegal question asked.

If you lie you better be sure the question is illegal because if it is not illegal then you can be terminated for lying to it.
What about using after acquired information to justify a firing that was made for illegal reasons?
There has to be proof that the info acquired would have affected their decision to hire them, the after acquired evidence will not preclude the claim, the after acquired evidence can be used to mitigate damages only.
The assumption is that if had not been discriminated against then you would have been fired as of the date the acquired evidence was found. So you have the cause of action and damages up to the date of the acquired evidence.

Since P voluntarily lied about pregnancy Title VII does not apply because employer did not solicit the info

References CA and Federal:

References from a former employer: Skills, reliability, personality, reason they left the previous job, verify the info given on the application is accurate
Applicants expectations: Will they say something favorable, if they do it can get you the job
Statutory protections: Fair Credit Re