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Employment Law
SUNY Buffalo Law School
Dimick, Matthew David

Employment Law Outline
I.                   Introduction and Historical Background (1-48)
A.   The Meaning of Work
1.      Kenneth L. Karst, The Coming Crisis of Work in Constitutional Perspective (1997)
a.       for many, work is a “Monday through Friday sort of dying”
b.      unemployed
i.        seek work for tangible and intangible rewards (defines person)
ii.      autonomy is expressed and reinforced by free choice of work
iii.    work was medium through which free men demonstrated citizenship
c.       today, work means:
i.        sustaining ourselves and families
ii.      self-sufficiency and industriousness
iii.    learning tasks … increasing authority … increasing pay
iv.    central to the American dream
v.      health care and pensions that attach to jobs
vi.    decent child care becomes family concern
vii.  family status and family security
viii.exercise of responsibility
ix.     connected to citizenship values of respect, independence, participation
x.       proving yourself in your own eyes and others’
d.      you become your job – work shapes individual identities, general and particular
e.       the work we do affects others’ evaluations of us
f.        rough popular status-ordering of types of work – strongly influenced by differences in pay and also affected by:
i.        power associated with a job
ii.      importance of the work to society at large
iii.    difficulty of entry into the job
iv.    individual’s independence in performing the task
v.      complexity of the work
vi.    level of creativity
vii.  level of training
2.      work and gender
a.       significance of work same for men and women?
b.      Vicki Schultz: structure of employment shapes workers’ attitudes about gender roles … arguable that work law should play a central role in furthering sex equality – paid work should serve as a foundation that secures to all women and men a source of equal citizenship, economic wherewithal, social ties, and personal identity
3.   work and race
a.       studies suggest significance of work not same across racial lines
b.      African American workers place higher priority on solidarity with other workers than whites
c.       African Americans have higher propensity for collective action/union organization
4.   right to work as constitutional right?
a.       if so important, why not constitutional right?
b.      assertion of an employer’s duty would encounter “state action limitation” read into Fourteenth Amendment
c.       statute imposing similar duty would be unconstitutional invasion of employer’s sphere of private liberty
d.      no comparable duties could be imposed on the states or Congress – government’s duty is noninterference – judges can’t compel legislators and executives to employ the unemployed or take other action on their behalf
B.    Historical Roots of Employment At Will
1.      early nineteenth century
a.       absence of law regulating employment relationship
b.      employment relationship was master and servant
c.       presumption employment was at will – could be terminated freely by either party with no notice or cause
2.      Payne v. The Western & Atlantic Railroad Co. (SCt. Tenn. 1884)
a.       railroad prohibited its employees from trading with merchant Payne
b.      claim is breach of interference with employment relationship
c.       court holds an employer can demand an employee not trade with an individual on penalty of discharge
d.      employment is terminable at will – can discharge for any reason or no reason at all
e.       reasons from general principles – a matter of common law – cites no authority
f.        general principle here is that there’s a freedom to contract with who you will on whatever terms you will
g.       principle limited if parties contracted for fixed term and employer requires something illegal
h.      no authority is cited for the at will rule – this case is the classic statement of the at will doctrine
i.        what kind of response would the at will doctrine provoke from employees?
i.        they could unionize; lobby for a change in law; demand a contract with the employer; work for someone else – market response
3.      American rule
a.       Payne first case to embody the American rule of employment at will – can discharge workers for “a good cause, for no cause, or even for cause morally wrong”
b.      still default rule, despite exceptions created by legislative enactment and common law
c.       rooted in though employer has legal right to control operation of its enterprise; workers have right to be paid for labor performed and nothing more
4.      employers’ needs for flexibility
a.       employment at will justified by employers’ need to be flexible in response to business fluctuations
b.      explains present-day deference to managerial prerogative
5.      employers as guardians of the social welfare
a.       assumed employers would ct as guardians of social welfare – choices may disadvantage individuals, but benefit overall community through business expansion
6.      collective action
a.       judicial reaction to early efforts of workers to organize was hostile – perceived as disloyal, selfish, and greedy – criminal conspiracy to injure public welfare (demands for wage increases caused higher prices for goods)
b.      mid-nineteenth century – focus shifted from hostility at organization to the means of protest
c.       strikes and pickets viewed as disloyal
d.      unionism was perceived as challenge to state as sovereign – subversive societies – attempting to legislate without constitutional authority and force employers to follow union mandates instead of state regulations of business
B.     The Rise and Fall of Freedom of Contract
1.      SCt. elevated employer’s right to discharge to a constitutional due process right
a.       federal legislation infringing on the two-sided bargain (employee can quit whenever, employer can discharge whenever) by compelling employer to retain workers is invasion of liberty as well as right of property, guaranteed by the Fifth Amendment
b.      subsequently, similar state legislation was invalidated under due process clause of Fourteenth Amendment
c.       followed that employers also possessed right to establish standards of employment (rates and hours) through private contract
d.      courts applied freedom of contract rationale more broadly to strike down minimum standards legislation enacted by states (Lochner)
2.      Lochner v. New York (SCt. 1905)
a.       issue: constitutionality of state labor law limiting hours bakers could work
b.      held unreasonable exercise of the state’s police power – interferes with rights of the parties to contract for more than that amount of hours
c.       Constitution guarantees the right to liberty (right to contract)
d.      policy justifications of the state: states can exercise police power by enacting legislation that protects the health and welfare of bakers or the public
i.        Court responded no relation between the number of hours a baker works and the cleanliness of the bread; if you interfere with bakers, then any profession could be regulated (a situation where the court may have come out differently would be with truck drivers, miners, wards of the state, etc.)
e.       reasons to regulate something like hours where they might impact health
i.        inequality of bargaining power
ii.      sense of if the hour limit were more extreme this wouldn’t be an issue – the connection to health would be clear (like 18 hours per day)
iii.    competition between bakeries may push the hours up and the legislature may need to step in and set a ceiling
iv.    relying on the market/workers to bargain for their own interests – requires the workers fully understand their own interests and bakers’ health risks may not materialize until years later
3.      slippery slope of government intervention in the market
a.       worried legislation to protect bakers’ health might go to other unknown lengths
b.      distinguished other professions that may need more regulation (i.e., truck drivers, miners, wards of the state, etc.)
4.      protective legislation for women workers
a.       Lochner aberration in historical context – one of few pre-1920’s cases invaliding protective labor legislation
b.      court later upheld state statute limiting working hours of women in mechanical establishments, factories, or laundries (Muller)
c.       distinguished Lochner because of women’s physical organization, maternal function, rearing of children, and maintenance of home – justified intervention and didn’t offend liberty of contract
5.      Lochner’s revival: a gender-neutral freedom of contract?
a.       Lochner was later expanded to cover women as well
b.      Court struck down minimum wage law for women and children (Adkins) as violative of Fifth Amendment due process and not defensible as exercise of police power
6.      a turning point
a.       West Coast Hotel (1937) Court changed gears and upheld minimum wage law for women
b.      one factor was Great Depression and public’s support of minimum wage protections
c.       if workers can’t make a living wage, burden of their support cast on community
C.     The New Deal Labor Legislation
1.      1933 New Deal was program of legislation to spur economic recovery after Great Depression
a.       policy was to reduce wage competition so workers would enjoy higher wages and more secure employment – thus spending more money and stimulating growth that would create jobs
b.      committed to regulation at the local level by agreement between employers and employees
c.       core was commitment to labor unionism as a vehicle for worker representatio

HA, and ERISA, etc.
c.       finance and pursue important impact legislation – pay equity cases advancing the theory of comparable worth and challenges to maternal fetal protection policies
9.      theory of industrial pluralism
a.       model of social interaction between employers and employees that eschews outside interferences – workers empowered to fend for themselves
b.      workplaces are miniature political democracies
c.       governed by the agreement, rather than outside law – expressly contractarian ideology
d.      seeks to put an end to individual bargaining
10.  practice of collective bargaining
a.       typical agreement pertains to four topics:
i.        union security and management rights
ii.      wage and effort bargain
iii.    individual job security
iv.    administration
11.  the decline of unionism, collective bargaining and labor law
a.       by 1980, union membership was declining
b.      currently, numbers are very low
c.       decline attributed to a number of factors, including:
i.        shift in employment from industrial production to white-collar and service work
ii.      substitution of new technology for manufacturing workers and corresponding loss of union membership
iii.    shifting demographics of labor force by age, sex, race, ethnicity, and education and labor’s failure to adapt is organizing and representation to new workforce
iv.    growth of contingent workforce
v.      globalization of labor and out-sourcing of manufacturing and other low-skilled job to the south or to western states where union density is low and more recently to low-waged foreign countries
vi.    hardening of employer resistance to unionization, remedial shortcoming s of the NLRA, and law’s hostility toward organized labor
vii.  tendency toward bureaucracy and complacency in union leadership, loss of militancy, and concomitant drop in class consciousness of workers
d.      Cynthia Estlund, The Ossification of American Labor Law (2002)
i.        argues legislative gridlock and judicial application of a strong federal preemption doctrine have operated to prevent labor law from adapting to suit modern work practices and to isolate it from the creative innovations that have characterized the common law of employment and the evolution of constitutional theory and doctrine
ii.      ossification of American labor law – has been essentially sealed off both from democratic revision and renewal and from local experimentation and innovation
iii.    party due to political impasse at federal level
iv.    broad implied federal preemption of state and local laws affecting collective labor relations blocks democratically inspired reforms or variations at that level
v.      imperviousness of labor law to most constitutional scrutiny – insulated labor law from evolving legal norms
vi.    resistance to transnational legal authority – insulated it from influence of international human rights, etc.
D.    The Emerging Individual Rights Model
1.      Stephen F. Befort, Labor and Employment Law at the Millennium: A Historical Review and Critical Assessment (2002)
a.       survey of the individual rights-based statutory and judicial doctrine that have supplanted unionism and collective bargaining for the majority of employees as the primary source of workers’ rights
b.      newer statutory enactments: (1) statutes that prohibit discrimination on the basis of certain protected characteristics; (2) statutes that establish minimum workplace requirements
c.       antidiscrimination statutes:
i.        Title VII of the Civil Rights Act
ii.      Age Discrimination in Employment Act of 1967
iii.    Americans With Disabilities Act of 1990
iv.    provide protection to workers, not as workers, but as members of a protected class
v.      employers are only prohibited from discriminating – not required to act on the basis of notions of fairness or cause