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Employment Law
SUNY Buffalo Law School
Dimick, Matthew David

EMPLOYMENT LAW

DIMICK

FALL 2015

PART I – REGULATING WORK

A. Origins

1. ORIGINS – INTRODUCTION TO WORK LAW

I. The law of work has evolved & generally divided up in 3 areas:

§ (1) Labor Law:

Þ Encompass the study of the National Labor Relations Act (NLRA), the law governing union organizing & collective bargaining

Þ The law of collective rights at work

§ (2) Employment Law:

Þ Refers to the statutes & common law governing individual rights at work

Þ Ranges from minimum standards legislation to judicially created doctrines based in tort & contract law

Þ Deals w/ the individual

Þ Relationship between the employer & the employee

Þ Source of law à Not from 1 source – Common Law rules & States

§ (3) Employment Discrimination:

Þ Deals w/ statutes & interpretative case law advancing the antidiscrimination norm in the workplace

Þ Statutes address the problem of status discrimination at work (e.g. discrimination on the basis of race, sex, national origin, etc.)

II. Tip Jar Problem:

§ 4 types of employees:

Þ Baristas — Shift supervisors — Assistant managers — Store managers

§ “At will” employment

§ § 196-d prohibits any employer or his agent from … accepting gratuities…

Þ § 2(8-a) à Agent includes but not limited to, “a manager, superintendent, foreman, supervisor or any other person employed acting in such capacity.”

ú What is an agent? à Case held that Supervisors are agents

§ Fairness concern à Tipping is a way to recognize good service – the tips should go to the recipient who provided the service

Þ Recognizing service:

ú Server vs. Dishwasher

ú How much does the customers expectations matter?

III. There is a difference between a barista (non-managerial employee) & a manager?

§ What makes an employee, an employee?

Þ Common law definition

§ Employee:

Þ Independence = Control test – Person subject to control

Þ How the employee is paid à Salary/ Hourly

Þ Status à Store Manager above a barista

IV. Regulating Work:

§ Predominant systems of legal regulation:

Þ (1) Individual Contract

Þ (2) Unionization

Þ (3) Collective bargaining

Þ (4) Gov’t intervention to establish minimum protections of workers

V. The Meaning of Work:

§ Work means much more than a paycheck – it is the exercise of responsibility

§ Particular jobs have their own socializing effects

Þ Work we do affects other ppl’s evaluations of us

§ Work is seen as connected to the citizenship values of respect, independence, & participation

Þ Understands the idea of the dignity of work & personal achievement

§ Work shapes individual identities in ways both general & particular

VI. Origins of Work Law:

§ Value work for the:

Þ Status

Þ Independence

Þ Money

§ Should the right to work be a constitutional right?

§ The Meaning of work:

VII. The Rise & Fall of Freedom of Contract:

§ Employment relation in the US originated as an blend of free contract & master-servant status

§ Free Contract à Employment contracts were mutually terminable at will

§ Master-Servant à Presumed authority of the master (employer) to exercise authority & control over the servant (employee), as well as duties of loyalty & obedience owed by the servant to his master

§ Lockner v. New York, 195 U.S. 45 (1905):

Þ FACTS è NY labor law required employees to work no more than 60 hours in 1 week

ú Bakery owner was indicted for letting workers work longer than the statute allowed

Þ ISSUE è Does the due process clause of the 5th Amendment & 14th Amendment protect liberty of contract & private property against unwarranted gov’t interference?

Þ RULE è A state MAY interfere w/ a person’s right to contract for his labor, ONLY IF such interference is reasonably related to a legitimate purpose such as the protection of public health, safety or welfare.

ú The 1897 Labor Law limiting the hrs. that an employee in bakery establishment may work is an abridgement to their liberty of contract & a violation of due process.

Þ HOLDING è Unreasonable exercise of the state’s police power – interferes w/ rights of the parties to contract for more than that amount of hours

ú Substantive Due Process – State cant infringe on the right to free contract

ú Exceptions à States ability to police power:

ð Health, Safety, Morals, & Welfare

ð Ex: Mining is dangerous (Colorado statute)

ú The trade of a baker isn’t unhealthy enough to restrict the hours

Þ The general right to make a contract in relation to his business is part of the “liberty” of the individual protected by the 14th Amendment. The right to purchase or sell labor is part of that liberty protected.

Þ The only way a state may counter this right is to show are exercising a valid police power w/ their regulation. Those powers relate to the safety, health, morals & general welfare

Þ DISSENT (Harlen)à Why is the court interfering w/ the State of NY legislation?

Þ DISSENT (Holmes) à The court is enforcing an idea on how the economy should work?

VIII. Women & Working:

§ Adkins v. Children’s Hospital, 261 U.S. 525 (1923) à struck down a minimum wage law applicable to women & children employed in D.C.

§ West Coast Hotel v. Parrish, 300 U.S. 379 (1937) à SC upheld a minimum wage law for women

er can fire:

ú There’s a strength in numbers

§ Individual problem v. several employee problems

§ Collective Action Problem:

Þ If A is going to get better lights in the factory why would B get involved – be can get a free ride instead

§ More public support against union

Þ See unions pushing there own political agenda

§ Benefits that unions used to provide are provided by employers

§ Unions have declined!

§ Do we need unions today?

Þ Occupational change

Þ Outsource of angry

Þ Looking back when unions peaked & economy was high

Þ Income equality

§ The typical collective bargaining agreement contains clauses pertaining to 4 basic topics:

Þ (1) Union security & management rights

Þ (2) The wage & effort bargain

Þ (3) Individual job security

Þ (4) Contract Administration

§ The Decline of Unionism, Collective Bargaining, & Labor Law à End of 2014, the overall union membership rate had sagged

XII. The Individual Rights Model:

§ Modern Work Law appears caught between 2 systems:

Þ (1) A system of private autonomy – collective bargaining or laissez-faire market ordering

Þ (2) A system of public (legislative & judicial) intervention

§ Unions à Just Cause Clause for firing

§ Individual right model à isn’t protected by just cause clause

§ OSHA à setting safety rights for business – don’t need unions

§ Minimum wage is a mechanism to try & reduce inequality

§ Employment discrimination law – unions could have argued for but law can/has set standards

§ Criticism:

Þ IRM is dependent on legislation

§ Union bargaining for wages v. minimum wage:

Þ Tailored to the industry v. a 1 size fits all

§ The law of the workplace, once dominated by New Deal labor law & collective bargaining model it established, is now dominated by regulatory statutes administered by gov’t agencies & by individual rights enforceable thru private litigation:

Þ This shift fundamentally altered the law’s conception of employees:

ú The rights-litigation model of wrongful discharge law casts employees as rights bearers, but also, as victims seeking redress for past wrongs.