Select Page

Employment Law
University of Toledo School of Law
Slater, Joseph E.

Employment Law Outline-

1) 3 legal regimes governing employment law
a) Background of at-will employment
b) Collective bargaining regime (minority of employees)
c) Set of laws and regulations: regulations, statutes, CL, health and safety and worker’s comp.
2) Bammert v. Don’s Super Valu, Inc.
a) Karen had worked at Don’s for 26 years and was fired b/c her husband, a police officer, arrested Don’s wife for drunk-driving. Bammert brought a claim of wrongful discharge in violation of public policy
i) Question: should this firing be considered a tort? Court rejects this claim b/c the firing was unrelated to her work.
3) Dental employee fired when daughter had dental work and wanted to sue dentist. Sued on claim that firing violated freedom of association and open access to courts. Court ruled in her favor.
4) Who is an employee under the law?
a) Not everyone who works for money = an employee
i) Threshold question: is the person an EMPLOYEE under the law?
ii) Many benefits are contingent on the person being an employee
5) Not an employee
a) Independent contractor
b) Some employment laws apply only to certain groups of employees (mgrs and execs are not covered under FLSA’s overtime pay provisions)
6) Lemmerman v. AT WMs Oil Co.
a) 8 year old Shane slipped and fell on AT’s property. Mom, an employee, sued in tort. AT argues that Shane is an employee and is only entitled to worker’s comp.
b) CT: finds that Shane = an employee b/c he helped his mom while at work and supervisor paid him.
c) CT: failure to follow technical procedures not controlling on the issue of whether an employer-employee relationship existed.
7) Illegally employing children: Courts are split as to whether worker’s comp should be applied
8) WC is an exception
a) Accidents in workplace are generally covered by WC
b) Benefit: no fault system
c) Negative: there is a cap on award
9) History of Employment at Will
a) Payne v. Western: rule that employees couldn’t by groceries in the general store in town; this offense was fireable. The owner of the general store sued. SCT of TN upheld the RR’s prerogative to discharge its employees for any reason. Upheld at will law.
b) Henry v. Pittsburgh: employer fired b/c of dishonesty, although there exists no evidence. RR told local paper why employee was fired. Court held no action could lie against RR.
c) Illustrates at will rule: employer free to impose any conditions of employment, to discharge an employee at any time for any reason and to effect the discharge in virtually any manner.
d) Norris-LaGuardia Act: made yellow dog contracts illegal (as a condition of employment, I agree I will not join a union). 1931 made these Ks unenforceable; 1935: NLRA passed by Congressà first law to make an exception to at-will principle; can’t fire or discriminate employees b/c they are pro-union.
10) Employees who are usually NOT at will
a) Most public employeesà Merit system (mostly due to civil service laws)
i) Protected by:
(1) Constitution: when gov’t acts as employer = state action, which implicates the Constitution.
(a) Substantive rights—Constitution applies to public employees
(i) To form unions: negotiate Ks
(b) Due Process rights: public employees are entitled to a hearing in certain cases re: firing
(c) 4th Amendment rights: re: drug testing (can’t be fired for refusal to take drug test in way that is unconstitutional)
(d) 5th Amendment rights
(2) Civil Service Laws
(a) Substantive protection to public employees
(b) Created to prevent hiring an firing based on political party
(c) Hatch Act: (not on exam) public employees can’t use official authority to influence/affect results of election; can’t coerce employees to donate to political cause; can’t be candidates for elective public office in partisan election.
ii) Keyeshian v. Bd. Of Regents
(1) Held: can’t fire a lower level public employee for association.
iii) Rutan v. Republican Party, USSCT(1990)
(1) Issue: whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. Patronage case—gov’r of IL only hiring Republicans.
(2) Holding: they may not. Exception: high level employees who make policies.
(3) Elrod: can’t fire public employees for political affiliation, unless it is a policy-making position (protected by 1st Amendment right to associate).
(4) Just cause standard: could only fire for deficiency in performance; merit based.
b) Unionized employees—private and public sector
i) Collective bargaining: they negotiate for just cause firing.
c) Individual employees with an explicit K that says they are not at will
i) High-skilled, high demand workers
ii) Tenured professors
iii) Employees high on the corporate ladder
(1) Only people with power to negotiate
d) Who decides whether firing was for just cause?
i) Public employee: civil service commission
ii) Public employee: re: constitutional right involved, go to court
iii) Union: Labor arbitrator
iv) Individual employment K: you go to court
e) Law that creates exceptions to at will (illegal reasons for firing for people covered by laws)
ii) Fair Labor Standards
iii) Whistle blower
iv) Polygraph protection act
v) Title VII
vi) CL exceptions
vii) Violation of public policy: can’t fire employee for doing jury duty
viii)Statutory rights: i.e., no retaliation
11) Context of American Employment Law
a) OSHA’s safety rules don’t apply to people working at home. Federal ban on textiles work at home was withdrawn.
b) Who is an Employee?
c) Main test: Fair Labor Standards Act test
i) Donovan v. DialAmerica Mktg., Inc.
ii) Secy of Labor alleged that DialAmerica didn’t comply with min. wage and record keeping per FLSA concerning their home researchers and their distributors.

uth Hiring: problem is that some people may be excluded from this process and discrimination results.
e) Kotch v. Board of River Port Pilot Comm’rs (1947)—Nepotism/word of mouth hiring
i) Public employees; type of job = people who navigate into the Port of New Orleans. The qualifications are being challenged in this caseà had to serve a 6 mos. Apprenticeship to get the job. The people who were currently in the jobs did all the recommending as to who should get the apprenticeships. Alleged it violated the 14th amendment.
ii) The majority rejected this argument and said it was a unique job and the families go into the job and it’s a highly personal calling. They said that nepotism didn’t violate the 14th Amendment of the Constitution. Prof: probably would be decidedly differently today.
f) Discrimination under Equal Protection Clause: To prove discrimination must show INTENTIONAL discrimination on the basis of race. This is difficult to do re: nepotism cases. You must have some facts to show that nepotism was being used as a form of discrimination. Only applies to public employees.
g) Title VII: applies to public and private employers. It does not necessarily require intentional discrimination.
i) Illegal to fail to hire on the basis of race, color, religion, national origin or sex.
ii) Disparate Treatment: Under a Title VII action, must show that they were not hired because of one of these traits. Same analysis as Constitution.
iii) Disparate Impact: goes beyond constitutional requirement of intentional discrimination. P must show:
(1) The employer has a practice that has an adverse effect on a Title VII group AND
(2) The employer doesn’t have a sufficient business-related justification for it.
(a) Example: will only hire people who are 5’ 8” or taller; this would have a disparate impact on women.
(b) Airlines: would only hire as flight attendants as women; there was a disparate impact on men.
(3) KEY: no discriminatory intent required.
h) Thomas v. Washington County School Bd. (4th Cir. 1990)
Employer was public school system in VA with very few black teachersà .5% of all the teaching positions in the school system. School had hired 46 people who were relatives of people in school system. Jobs only posted inside school buildings, not outside. Court held that the hiring practices of the school system