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Employment Law
Temple University School of Law
Angel, Marina

My Employment Outline
Chapter I: Work and Law (1-13)
·         no pervasive scheme for regulating employment law at state or federal level
·         most work is at-will (fire for no reason or any reason)
o       Restrictions on at-will employment
§         Does the EE have an individual contract?
·         Terms of Kà breach?
§         Does the EE have a union contract?
·         See terms: Collective Bargaining, 98% dismissal for cause
§         Public EE or Private EE?
·         Public = Constitution(s) come into play and State Civil Service Laws (probationary period)
o       Due Process: Notice and Hearing  
o       Equal Protection under the law
o       Liberty Interest (untrue statements)
o       Property Right in job
o       First Amendment Rights
§         Private- state statute limiting the ER’s freedom to fire
·         Whistleblower
·         Family Medical Leave Act
·         Anti-Discrimination
o       Title VII (employment section of Civil Rights Act of 1964): pertains to race, color, religion, sex, national origin
o       Age, Disability, Marital status, Sexual orientation
·         Employment Policies
·         Employee Handbooks/Personnel Manuals
·         Judicial limitation on employment at-will (public policy, good faith/fair dealing)
·         Causes of Action
o       Contract (breach): limited to K damages, (no emotional distress, no punitive, duty to mitigate, good-faith and fair dealing)
o       Tort: IIED, assault, defamation, get large tort damages
o       Criminal: violation of criminal code?
·         Hard to leave a job: Non-compete (restricted by Rule of Reason (limits geographically and by length (time))
·         Most protection at firing (you have a lot vested)/Least protection at hiring (you have no “stake” in job yet)
·         Employment Relationship Over Time
o       Workers’ Comp in late 19th: take away right to sue ER
o       Doesn’t matter who is at fault: fast, guaranteed recovery, but “damages” very limited
o       EE try to sue in Tort b/c can get punitive and pain and suffering (attach state claim in fed court)
·         ER’s information gathering process/impt for merit based in civil service
o       What is the job? (defined clearly)
o       What is the skill set to fill the job?
o       How do we test/judge whether you have those skills or not?
·         Shift from judge made common law à Statutory Law
o       1935: Wagner Act (NLRA)- (Laborers’ Bill of Rights) right to unionize and require ER to collectively bargain (wages, hours, terms, conditions of employment)
o       1938: Fair Labor Standards Act- struck down at first b/c interference w/ right to K (overtime, min wage)
o       1947: Taft-Hartley- pro management (undermine 1935)
o       1964: Civil Rights Act- T-7 (employment)
o       1970: OSHA- safety regulations on the job (opposite of workers’ comp) (administrative EEOC = changes w/ administration (D= EE, R= ER)
o       1974: ERISA- ??
·         administrative rules and regulations are not statutes, not same authority, but often deferred to
·         Laboren Exercens: Encyclical of Pope John Paul II on Human Work (4)
·         Work bears a particular mark of man and of humanity, the mark of a person operating w/in a community of persons
·         Powerful force in shaping a person’s sense of identity: people become what they do
Wagenseller v. Scottsdale Memorial Hospital (1985)(11)(AZ)
·         at-will EE, refusal to engage in activities caused relationship to deteriorate à fired
Chapter II: The Development of Employment Law (15)
A. The foundations of Employment Law
 
1. Master-Servant
Ordinance of Labourers – King Edward III (15)
·         2/3 of workers died, so wages should go up, but King E III fixed wages and where people could work (stay on farms, no going to city)
·         start of English Labor Law (no collective bargaining, fixed prices, compelled acceptance of employment, no enticing)
Sir William Blackstone: Commentaries (16)
·         three relations in private life
o       master-servant/ husband-wife/ parent-child
o       master is answerable for act of his servant, if done by his command, express/implied
 
2. Employer-Employee
Lemmerman v. A.T. Williams Oil Co. (1986)(19)(NC)(8 yr old = EE?)
·         ∆ claims slip-fall limited to workers’ comp/ Π claims not EE so can sue in tort (better damages)
·         Ct- Π expected to be paid, and ∆ had authority to hire/fire
·         Failure to follow technical procedures is not controlling
·         Dissent- ∆ has burden of proving that Π could demand payment (EE); simply there b/c mom didn’t have childcare
·         Angel: what would be better for child labor? (not EE b/c high punitive would enforce “no child labor”)
Notes: what does “EE” mean? (different meanings depending on statute/state)
 
B. Sources of Modern Employment Law
1. Civil Service/Public Employment (32)
McAuliffe v. Mayor and City of New Bedford(1892)(32)(Holmes)(MA) (Wood’s at-will in public)
·         Rule: no PO to solicit $ for any political purpose and fired for caused deemed by Mayor to be sufficient after due hearing
·         Constitutional right to talk politics, bu

imitations (bar)
·         Why not leave job? : benefits vesting, non-transferable pension, seniority, non-compete clause
·         Arbitration: arose out of union grievancesà 3rd party neutral arbitrator (cheaper/faster than litigation)
o       How neutral? EE often sign away right to choose arbitrator (ER picksà bad)
Union Security (50)
·         nothing in Wagner Act that prohibited EE from being required to join a union as a condition of employment
·         Closed Shop: obligates the ER to hire only union members and to discharge EEs who drop or lose their membership
·         Union Shop: EE may be required to become union member in order to retain job, although need not be member at time of hiring and has 30 day grace to join (membership = financial core)
·         Agency Shop: EE need not join union but are required to pay union fees and dues (less union control, especially during strikes)
·         Have unions contributed to their own demise by effectuating change??
Wright v. Universal Maritime Service Corp (1998)(58)(SC)
·         CBA does not require EE to use arbitration for ADA violation
·         Grievance under CBA: vindicate a contractual right
·         Lawsuit under T-7: independent statutory right accorded by Congress
o       Wright’s action is distinct from any K right conferred by CBA
o       Can’t infer they intended to waive statutory right unless explicitly stated (clear/unmistakable)
§         Don’t reach whether or not such waiver would be enforceable (like Circuit City app)
 
3. Government Regulation of Employment (62)
Levitan- Protecting American Workers-
·         SC found that EE right to living wage was subordinate to ER’s right to determine “just wage”
·         Great Depressionà minimum wage, overtime restrictions: unregulated markets could not adequately protect the nation’s workers
4. Non-Discrimination (65)
T-7: no discrimination on basis of race, color, religion, sex, national origin; did not prohibit all forms of invidious employment discrimination, just on basis of 5 immutable characteristics (must