I. Background, Development & Introduction
· Work & Society
oone thing pple agree on — pple are important
oDifferent Thoughts
§ prior to 18th century, seen as a necessary evil
§ now can be a source of pride/personal fulfillment
§ gives form and meaning to our lives
oEE to ERs
§ they are resources
§ also a cost of production
§ ER usually want maximum flexibility to run their business, so employment laws can look like obstacles or hurdles (which restrict their discretion)
oTwo Conflicting Policies
§ employment is central to the EEs and that the employment relationship is one of unequal bargaining power
§ contractual relationship, the parties should be free to come up with any terms of employment that they want, and that the market forces will make sure things don’t get too bad
oChanges in the last few years…and their implications
§ Minimum wage standards and if so how?
§ economy being increasingly international
oUS Employment Laws
§ ocean of at-will EE laws, but in this ocean we have many islands
· History of EE Laws
othere were laws governing employment before at-will
§ Master-Servant Law
Ø the old fashion employment law was fairly friendly to the rights of the ER
Ø into the 19th century was not employment at will
§ Elizabethan Law
Ø hiring was presumed to be for a year (ER on the hook to pay for a year)
Ø also meant EE had no legal right to quit before the end of the year
sif they did attempt to quit they could be jailed or pay substantial fine
Ø These were regular EE not indentured servants etc.
Ø this came to the US – prior to the 19th century
sif you quit before then you had no right to pay for any of the work (even if that time is greater)
Ø people began to go against this
sidea that the gov. should regulate the workplace more
sother idea is Employment at Will
oSo you then see the competing idea of pple who wanted pure freedom in the workplace to pple who wanted regulation
§ so what you get at the beginning of the 19th century you get this awkward compromise
oAt Will Rule (and the many, many exceptions)
o100s of wage and hour laws were passed giving people the right to form unions etc.
oin the late 19th century/early 20th century – all these laws were found unconstitutional
oalways been law involved at the workplace
oNow we have three types of legal regimes that govern:
§ Background of At-Will
Ø covers the majority of private sector EE that are not in unions
Ø ER have the power to do pretty much whatever they want
§ Collecting Bargaining Regime
Ø EE have the right to form Unions
Ø minority of workplaces
§ Set of laws & Regulations (Statutory & Legal Regime)
Ø laws that create the at-will
Ø the exceptions (islands) at the ocean at will **what we will mostly study
oWrongful Discharge — Public Policy Tort
§ broader in some states than in others, varies greatly from state to state
§ will depend on how closely it is related to the EEs employment
§ Remember: case where wife was fired b/c husband participated in the arrest
ight to be a policeman
« After 1960’s do have some constitutional rights in their employment
¤ cannot fire someone for expressing their constitutional rights
¤ are balancing tests, can’t say anything you want
« Due Process Protections
¤ if there is some rule/regulation/statute that gives public EE some right not to termination, then constitutional due process rights attach when the ER tries to take away those rights
· in practice, means they are entitled to some kind of hearing to determine if they really did what they were accused of
· but be some kind of substantive right
sCivil Service Laws
« Goals:
¤ give substantive just cause protection to public EE
¤ age of the political machine – wanted to get rid of corruption
¤ Limits on Rights – Hatch Act
· can’t use official authority to influence/affect the results of the election, cant coerce or attempt to coerce pple to donate money to a candidate
· generally can’t be a candidate for elected officers in public elections
« Substantive Rights They Gave to EE:
¤ Merit System: should only be hired or fired based on your merit
· Exception: where party affiliation is an appropriate requirement for the position (usually policy making)
