I. Work and Law
Traditionally law considered employment to be a matter of K law. Man is master of his business, but EE is free to quit while ER free to fire. First serious regulation came at end of the 19th Century due to working hazards and inequality of bargaining power, but stuck down as infringement of freedom to K.
Development- English usually hired for period of a year, seasonal workers for season. US at will began after Wood incorrectly cited cases.
NLRA- gave EE power to organize and bargain collectively
FLSA- minimum wage protection and premium for OT
Equal Pay Act- no discrim in pay between male and female EE
TITLE VII- no discrim due to race, religion, sex or national origin
Age Discrimination Act of 1967
Rehabilitation- no discrim based on disabilities
OSHA- minimum health and safety
EMployement Retirement Income Security Act- protection pensions
1. What do we get out of jobs? Money, benefits, self-satisfaction, conenctions and relationship. Did not become postitive until recent times, before looked at as punishment or only for slaves. To Protestants, making a lot of money was sign of being chosen.
2. Now worker productivty is increasing, but wages remain flat. This means more poverty, more income inequality, more famiy tension, more hours at work, more time away from family, more families without health insurance, more demands on gov and to to provide housing public assistance.
Bammert v Don Super Valu- EE fired because husband pulled over wife of store owner. Court held that the PP exception to at-will does not apply to conduct of non-employee relative. PP exception when the discharge is contraty to a fundamental and well-defined pp as evidenced by existing law or cleary contrevens the public welfre and gravely violates paramutn requirments of public intrest. If P can 1) I a cosnitutioanl, statutory or admin prision that clearly articulates a fundamental and well-defiend pp, and demonstrate that the termination violated pp. Then ER must show just casuse. Despite pp against drunk driving, conuct that is relatltory must come from ee.
2. The Development of Employement Law
A. Foundation of Employemt LAW
1. Master Servant- stems form master servant relationships of old times.
2. Employer- Employee-
1. Lemmerman v. AT Williams- EE son hurt when working at mothers job. Sup paid him salary to do work at statio. P said not ee, so can sue, ER said employee so must use workers comp. Court found that even though he was not formally hired, he was an EE, did odd jobs as the business needed.
2. Roberts v. George Hill- Some Courts have held that illegally employed minors, injured or killed at hob should be limited to Workers Comp.
3. Blancato v. Feldspar- Other court have found this outcome to be unjust and contrary to public policy. Child can void illegal K and pursue WC or tort suit.
4. ER of injured EEs want EEs to be EE’s as only can get workers comp, EE’s try to argue that they are independent contractors to get around WC.
3. Employment at- Will-
1. Feinman- English law generally was for one year, injustice if master could fired slave in middle of season, wouldn’t get any more work. US shifted to at will due to Wood- who made principle based on misquoted and off topic cases.
2. Cases of Payne v. Western and Henry v. Pittsburgh show: 1) the employer is free to impose nay condition on employment, 2) can discharge ee for any reason and 3) to discharge in any manner.
B. Sources of Modern Employment Law- Doctrine reassessed in 1970-80’s, recognizing that adherence leads to harsh consequences, so court carved out a series of tort and contract exceptions.
1. Civil Service/Public Sector
1. McAuliffe v. Mayor & City of New Bedford- officer fired for soliciting money for politics. P said did not need to be fired for this, bt statuted allowed mayor to remove from office for a reason sufficient to him after hearing. But nothing in statute to stop city from making this a requirement for employment. Consitutional right to talk politics, but no right to be PO, and few jobs that the ee does not agree to suspend his con rights of free speech by implied terms of K. Here this is a reasonable condition. Said not due hearing, but he had opportunity offered no evidnce, then refused to proceed. Also had notice, and knew consequences.
2. Reforming Civil Serivce- Hacth Act tightened prohibiton on political activity by fed employees. Reformed in 1972 to loosen restrictions on political activity of state or local gov employees; allowed them to become candidates in nonpartisan elections.. 1974 Amend prohibited them only being a candidate for elective office- courts interpet this to allow state ad locl employees to participate in political campaigns as long as not run for office themselves. Amend in 1993- gave greater rights on public employees to particiape in political activites- exceptions:
1) cannot solicit campaign contributons from suboridantes or those with business pending with the agency,
2) engage in political activity while on duty,
3) use gov facilities or prop for political purposes,
4) run for a partisan political office
3. Merit Systems Protection Board- lists five permissible activites for state and local gov employees-
1) May be a candidate for public office in a nonpartisan election.
2) May campaign for and hold elective office in political clubs,
3) May actively campaign for canddiates for pub office in partisan and nonpartisan elections
4) May contribute money to politicial orgs
5) may participate in any activity not specifically prohibited by law.
Three general prohibitions on political activity of state and local employees
1) use of his official activity or influence for the purpose of interefeinf with or affecting the result of an election or nonmiantion for office,
2) direcelt or indirectly coercing attemping to coerce a state or local offier or employee to pay, lend or contribute anything for political purposes,
3) be a candidiate for elective public office in a partisan election.
4. Rutan v. Republican Party- Gov issued hiring freeze for all public agencies, needed permission by gov office to get hired. COURT held that promotion, transfer, recall and hiring decisions for low level employees cannot be based on party affiliation. Elrod and Branti say Gov officals cannot discharge or threaten public employees for notbeing supporters unless appropriate for positon involved. Court extends this to promotion, transfer, recall and hiring. Otherwise conditioning employment on political activity is coerced belief violating the first Amend. May want workplace to be efficient, but also did not use least restrive means- can just fire those whose work are deficient and should only have this restriction on highlevel employees who influence policy.
2. Collective Bargaining-
1. Governing the Workplace- CB gives employees a chance to fight things they don’t like and can ban togeather not be alone, allows them to make a forum to discuss and formulate their positions. In 50’s started to downsilde, shift to service industries and unions could not get a foothold. In 70’s fell even more as factories closed. May also be attributed to HR helping EE’s more and unions being seein more as an external not internal org.
3. Government Regulation-
Insiders benefited from CB laws and job security, while outsiders did not. Under New Deal system, outsiders became coverd by minimal employment standards and employment discrimination.
1. CRA 1964 prohibits discriminiation in employment on basis of race, color, religion, sex, and national origin. Broader effect to protect and promote civil right. Title II and VI also prohibited discrimination in public accomodations and gov services. NOT intenede to be a comprehensive prohibition of all irrational or unfair practices of employers. At first did not include sex, put in to kill it but backfired.
2. EEOC v Wafflehouse- Court held that Fed Arbitration Act did not prevent EEOC from bringing action for violation of ADA, did not mention enformcent by public agency, does not place limits on nonpartys choice of judicial forum.
3. Penn Plaza v. Pyett- court held that Union CB agreement that required memebers to arbitrate was enforceable.
4. RentACenter v. Jackson- SC held 5-4 that an agreement to arbitrate all future dispute, an arbitrator and not court has the authority to determine the enforceability of the agreement.
5. Outsourcing and the Global Economy-
1. Drenzer The Outsorucing Boogeyman- Says not true that outsourcing does more harm than good. Will have minimal impact due to size of US, and will lead to more and higher paying jobs in US.
2. Levy- Offshoring in the New Global Economy- Propoents for offshoring says they can make more money, meaning wealth created for US and country receiving jobs. But in actuallyt money going to shareholders not employees. Most people who are displaced lose wages, and only 64% find new jobs. SO mostly everyone worse off.
3. Firedman- The World is Flat- Outsourcing saves money and is more efficient- worker offshore is motivated can do work of 3 US or UK employees.
6. The Big Picture
1. Summers- Statutory wages not enough, health and safety lacking in enforcement, FMLA leave is unpaid and cant afford to take it, plant closing laws bad, no statutory paid holiday, sick leave or insurance. Could be coverd by CB but only 10% covered by it, Only effective legal protection is discrimination, but only forces employers to treat workers equal.
2. Despite regualtions, many are exluded- independent contractors, workers not meeting def of ee, being specifically excluded from coverage, immgrants.
3. Meiser and Willyerd- 2020 Workplace- Both millenials and baby boomers in workplace, Latinos will be 30% of population, Technology may deskill jobs or eliminate clerical work, but also allow not having to physically eb at work place. Some say this increase autonomy of workers, but others say it pushes women out of the workplace, isolates employess. Shift towards more temp jobs.
C. Discharge (EmploymentAt Will)-loss of employment equated with loss of character and identity, labels one a failure. At-will mutual- but harash on employees as unequal bargaining power; employer threat is serious, ee’s is not can easily be replaced.
1. Statutory Protection of Employees
1. Whisteblower Laws
1. At will limited by
ke same goal. EE had no K, but letter said he would have job if maintained level of acceptable sales. Court held that satisfactory or acceptable performance language does not transform a K from no definte term inot a K that cant be terminated by any party for any reason. In fact, court has held that satisfacoorty performance is terminable t will, otherwise could be found in every K and would eviscerate at-will.
2. General rule with written K is if for definte term, can obly be discharged for breach of K or other good casue. When EE shows this is breached, burden shifts to EE to show good casue.
3. Letter says annual salary of XYZ, Hamilton v. Segue Software states that the offer of an annual salary creates a presumption of a one year K but that the presumption is overcome y reference to an at-will relationship.
4. K says not terminable by company, and if terminated, all benefits will concintue. In Fields v Thompson printing, Court held that ER can separate an ee in vionation of the written terms of the K, but cant refuse contractually provided benefits.
5. K said canonly de discharged for just casue, In towson v. Conte, cth held that the er prevails if it genuilely believed that the P was incompetent or willfully neglectful of his duties, court must ffind if er acted in objective good faith.
B. Implied Contracts from Conduct-
1. Pugh v. Sees Candies- EE moved up from dishwasher to VP, fired. EE stated that old pres saif if you are loyal your job is secure. To determine if Implied K, lookt to personnel practices, longvitity of service, actions by er relecting assurance of continued employment and practice of industry. Here jury could find an implied K due to personal practices, longetivity, actions by er, awards and lack of cricisim. Now burden shifts to ee for coming up with reason for ee termination and ee can attack it as pretext or insufficientcy.
2. Callon v. Miyagi- declined to follow Pugh, did nto believe that courts shouls subject each discharge into looking at bad faith.
3. Miller v. Pepsi and Davis v Consilidated Freight ways- no implied K where only an implied K was the ee longetivity of service, regulary salary increase and promotion, said that these factors alone should not change status of at-will ee to one dischargabel for casue.
C. Employee Handbooks
1. Wooley v Hoffman LaRoche- EE fired, no K but handbook sasi would only be fired for casue and under procedure in manual. Court held that the terms in the handbook binded the company. Distributed and meant to cover all employees, will not let er make attractive promises then withdraw from them when they choose. COnsdieration , handbook seeks no return promise, but can be considered continued employment. Only asking ers to be fair. Must be big company that has lots of ee’s.
2. A number of juris allow employee rights in handbooks, others relecutant as they have not be bargained for. Divided on if handbooks give protection against at will, depends on the nature of the statements in the book. St. Peteres v Shell- Court held that even if handbook placed limits, Ok to terminate without progressive discipline if book said insuboridantion can eb fired immediately. But see Jones v. Lake Park- breach of K when did not fired employee and did not given written warning as stated in book.
3. What must EE do when handbook changes? Broide v. Gen Chem- reduced rights without consideration, continued employment not enough. Other courts till find that conitnuted employment still enough.
4. When ER makes change how must EE be notified? Dursche v. Ameican Colliod- inconspicuous changes to handbook will not be enough to notify change of statuts from permanent ee to at-will. But See Adams v. Square- handbook, issued after ee was hried and made ee at will superceded implied promises in old handbook.
5. Rights of EE not limited to discharge, but procedural protection. Mobil Coal v. Parks. Employees can bring claim if they can show that ER violated their own policies- Scott v. Pacfic Gas.
6. To avoid breach of K , ers should be advise to avoid overselling jo security at time of hiring. Could ad disclaimer in app, or require a waiver of job security as condition of hire. Easiest way to avoid Wooley is to include a promoient disclaimer in handbook .