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Employment Law
Temple University School of Law
Angel, Marina

Employment Law

Temple University

Professor Angel

Fall 2015

I. Employment Law in the US

· No pervasive scheme for regulating employment law at state or federal level

· Most work is at-will (fire for no reason or any reason)

· People have very few job rights – yet work is extremely important – identity shaping & source of livelihood

· Restrictions on at-will employment

1) Employment K (usually only upper level white collar executives)?

a) Terms of K à breach?

2) Covered by union K?

a) Usually provides for no unjust dismissal + procedure for challenging dismissal — final step = binding arbitration by a neutral arbiter

3) Public or private employer?

a) Public Employer

i. Statutory Protections

1. State civil service laws

ii. Constitutional Protections

1. Due process: notice and hearing

2. Equal protection

3. 1st A freedoms of expression and association

4. 4th A unreasonable search and seizures

iii. Case Law

1. Potential property right in your job

2. Possible liberty interest in not having false statements made by your employer in connection with your discharge

b) Private Employer

i. Statutory Protections limiting the employer’s freedom to fire


2. Whistleblower laws

3. Anti-Discrimination

a. Title VII – race, color, religion, sex and national origin

b. ADA – disability

c. ADEA – age

d. PDA – pregnancy

e. Some state statutes – Marital status and sexual orientation

4. OSHA – Occupational Safety and Health Administration – Enforces rules for workplace safety and health (preventative measure)

ii. Employment policies – announced orally or in a handbook/manual

1. May function as an implied K

iii. Judicial limitations on employment at will

1. Public policy exception – where termination offends some public policy (e.g. for refusing to break the law)

a. Does not apply to discharges for conduct outside the employment relationship by someone else (see Bammert – employee fired in retaliation for husband’s participation in owner’s wife’s arrest)

2. Breach of the implied covenant of good faith and fair dealing

· Causes of Action

o Breach of K: Limited to K damages

o Tort*: Punitive, pain and suffering, and emotional distress damages available – You Want Tort Damages if EE

· Intentional infliction of emotional distress – tough to make out

· Assault, battery (in sexual harassment cases)

· Invasion of privacy –

· Fraud and misrepresentation – traditional, not as tough – may be limited to fraud at inception

· Defamation – slander (verbal) and libel (written)

· Negligence (hiring, supervision, or retention) – Good Ones

· Tortuous interference with contractual relations – might be hard to make out

Ä Damages: compensatory, pain & suffering & punitive damages

o Criminal – Violation of criminal code

· 3 Major Points in the Employment Process

o Hiring – least protection (you have no stake in your job yet)

o On the Job – includes promotion, transfer and recall (more like hiring or firing?; Rutan – Brennan argues firing)

o Firing – gets the most protection of the 3 areas – there is a lot more at stake in losing a job than getting hired

Exception: Civil Rights Laws – the same law applies whether you’re talking about hiring, on the job or firing

II. The Development of Employment Law

The Foundations of Employment Law

· Employment At Will – Introduced by Wood’s 19th Century Hornbook (even though he misstated the law)

– An employment agreement of unspecified duration is presumed to be terminable without penalty or notice by either party for any or no reason; employers must take their jobs on the terms, which are offered them


No statutory paid holidays or vacations

No statutory severance pay or sick Pay

No mandatory medical insurance

– These things are commonplace in other industrialized countries

– Trend toward employer dominance – Courts have cut back on exceptions to employment at will

· Shift from common law àstatutory law over the years

1935: Wagner Act (NLRA) – Right to unionize and collectively bargain (wages, hours, terms, employment conditions)

1938: Fair Labor Standards Act – Set minimum wage, required higher pay for overtime and prohibited child labor (but there are exclusions)

1947: Taft-Hartley – Pro-Management – Gave employees the right to refrain from union activities

1964: Civil Rights Act (Title VII) – Prohibits discrimination in employment

1970: OSHA – Enforces safety and health regulations on the job to prevent work related injuries, illnesses and deaths

1974: ERISA – Establishes minimum standards for pension plans and protects employee benefit plans by requiring

· Employees v. Independent Contractors (IC’s)

– Generally, employees are subject to the employer’s control, whereas independent contractors operate independently

– There is no exact definition of employer – a lot of statutes use circular definitions

– Employers will push to make people either employees or IC’s, depending on which is better for them, where there are differences:

Injury on the job – Employees limited to worker’s comp; IC’s can sue in tort

Benefits – Employees are eligible; IC’s are not

Torts – Employers are vicariously liable for the torts of their employees, but not those of IC’s

µ Lemmerman v. A.T. Williams (1986)

Facts: Slip and fall case where a boy regularly did odd jobs at a grocery store; employer wants him to be an employee, so

that he’s covered by Worker’s Comp; kid wants to be an IC to sue in tort.

Holding: Court finds that he is an employee.

Rationale: Boy expected payment for his work AND his supervisor had the authority to hire and fire him – but Boy was

illegally hired – this ruling does nothing to further the goals of workers comp or deterring child labor – the employer gets

off cheap.

Notes: Mixed case law on whether illegally employed minors should be limited to worker’s comp or able to receive


B. Sources of Employment Law

1. Civil Service/Public Employment

µ McAuliffe v. Mayor & City of New Bedford (1892) – At-will doctrine applied to public employment

Facts: Cop removed from office as a policeman b/c he served on a political committee in violation of police rules sued under the 1st A (violation of his freedoms of speech and association)

Holding: The mayor had authority to fire P for violation of this rule.

Rationale: You may have a 1st A right as a citizen to discuss politics, but you’ve got no right to be a cop ; P took the employment on the terms offered, and the city can impose reasonable conditions on employment (including EE’s speech).

· Civil Service Laws – Controls on selection procedures for government jobs – Reaction to the patronage system under which a newly elected official could dole out positions to his political supporters

Merit selection – Employer wants to choose best employee for job

For what job is the employer hiring?

What skills, training, education, aptitude needed?

Which person best exemplifies required skills?

– Political neutrality

– Government efficiency

– Job security (more than private sector)

– Prohibit discrimination

µ Rutan v. Republican Party (1990, Brennan)

Facts: P filed suit against Governor of IL for putting a freeze on hiring public employees but routinely authorized hiring exceptions for the benefit of his party.

Holding: Promotion, t


– Forces women back into the home

– Prevents the development of comprehensive childcare and eldercare programs

– Employers can exploit these workers more easily b/c they are not visible to the public and are isolated from co-workers

– Employers may think these employees should be available 24/7

– Difficult to unionize these employees

– Questionable whether laws like OSHA apply to them

– Problems with monitoring the time spent working

· Contingent Worker Society

– Many companies are cutting back the size of their permanent workforce and hiring more temporary or part-time workers

– Part-time workers = Cheaper (many get no fringe benefits), more easily manipulated

– Full-time workers are forced to work as much as possible; # of hours worked has gone up

· Flextime Scheduling

– Permits workers to adjust their work schedule in order to accommodate other activities

– Reduces employee absenteeism and increases productivity

· Job Sharing

– Duties are shared but each worker is responsible for the whole job

– Successful for parole officers, teachers, assembly line workers, secretaries and receptionists

III. Discharge – Employment at Will (Chapter 10)

· Discharge = “Capital punishment of the workplace” à Loss of income; loss of character and identity

· At will employment principle of mutuality (in terminating the relationship) = unduly harsh on employees

– Employee’s threat of quitting places few constraints on employer; whereas being fired is a huge loss for the employee

– Some employers can fire you just because they woke up on the wrong side of the bed.

· Difficulties in finding a new job:

– You might not have the skill set to go out into the current market.

– The rate of discrimination against older employees is bad.

– An equivalent high-level job may not be available.

– Moving is expensive

– References – you’re really in a bad spot your long-time employer won’t give you a good reference

A. Statutory Protection of Employees

1. Federal & State Whistleblower Laws

· Whistleblower Protection Act of 1989 – Protects federal employees who expose employer violations

· State Laws – Almost every state has enacted some form of statutory protection for whistleblowers

· Different statutory schemes:

– Employee must either 1) have reasonably believed that something the employer told him to do was illegal, 2) be right that it was illegal or 3) have acted in good faith

– Some states are very stingy with definitions of employee at will and the reading of their whistleblower statute.

2. Constitutional Protections (usually only apply to public employers)

· 14th A Due Process Clause – If a person has a protected liberty or property interest it cannot be taken away absent due process.

· 7 states recognize a constitutional Right of Privacy, which could be violated by public and private employers – but we do not know whether this theory will be accepted in a wrongful discharge case.