Introduction and Employment At Will
I. What is an employee
a. Traditional definitions are pretty much circular
b. In general, if there is a clear understanding that you are to be paid for your efforts, you are an employee. Lemmerman v. AT Williams Oil.
i. This includes employees who are hired illegally. Illegality does not alter your status as an employee
II. Employment At Will
a. Common law doctrine that employment can be terminated by any party, at any time, for any reason (or even no reason at all).
b. Developed in a treatise by Horace Wood, courts gradually accepted it as solid law
c. Reasons to not fire bad employees:
i. Nepotism
ii. Known commodity
iii. Easier than training a new employee
iv. Avoiding lawsuits and unemployment compensation
d. Advantages of employment at will
i. Productivity
ii. Maximum freedom of contract
iii. Employee can use ability as a negotiation tool
iv. Improves competition between employees
v. Encourages good behavior/harmony in the workplace
vi. For cause termination adds complexity to the law
vii. Promotes federalism/limited government
viii. Individual autonomy
ix. Efficient labor markets
x. Balance of power: employees are free to quit, just as employers are free to terminate
e. Disadvantages of Employment at Will/arguments for cause termination/term employment
i. Helps the employer when demand for employees is high, or there is scarcity in the workplace
ii. Provides protection from a drastically fluctuating market
iii. Workplace security-stability
iv. At will employment increases social costs/burden on the public
v. At will provides no incentive to address workplace problems, which may hurt productivity
vi. Cushions against unequal bargaining power.
vii. Cause termination helps prevent illegal discrimination and resulting lawsuits
f. Absent a formal term contract, courts will usually imply employment at will if the employment term is indefinite or vague
g. First Amendment exceptions to employment at will (government employees)
i. Early cases said that you may have a constitutional right to talk politics, but not to be a policeman
ii. Rutan v. Republican Party: Used strict scrutiny to evaluate basing transfers on party affiliation. Said practice violates freedom of association rights unless the policy is narrowly tailored to policy making positions. (an unconstitutional condition).
h. Civil Service Laws
i. Vary from state to state, but usually have two main provisions:
1. Any hiring or promotions must be based on merit or fitness
2. Employees may only be discharged for just cause.
III. Collective Bargaining and Unions
a. Yellow dog contracts: contract in which the employer requires the employee to sign a contract stating they will not join a union. Abolished by the NLRA
b. NLRA (the Wagner Act)
i. Passed 1935
ii. Encouraged collective bargaining, gave employees the right to unionize, and to bargain collectively
iii. Prohibits employer from practicing unfair labor practices
c. Taft-Hartley Act
i. An amendment to the NLRA
ii. Prohibited unfair union practices
iii. Gives employees the right not to join a union.
IV. Arbitration Agreements
a. Agreements requiring mandatory arbitration if the employee sues the employer
b. Are enforceable under the FAA (federal arbitration act)
i. Courts may find unenforceable if unfair terms are specified.
c. Advantages
i. Cheaper
ii. Faster
iii. More flexible
iv. All
that should occur in the process is that against undocumented workers.
b. Concerns of congress
i. Reducing illegal immigration
ii. Putting the burden on employers as a frontline defense against illegal immigration
iii. Ensuring that employers did not encourage illegal immigration
c. Requirements
i. ICRA applies to all employers. There are no threshold points
ii. Employers must submit an I-9 form, verifying that they have checked an employee’s documentation, within 3 days of hiring
1. Best to do after job offer is made. Doing so beforehand could open the employer to discrimination claims
2. Forgeries
a. Standard for employers is the reasonable person standard—as long as a forgery is not obvious, employers will not be liable
b. Constructive knowledge of illegal status does not apply unless the employer knows that there are problems with illegal employees, and choses not to act.
d. Major issue today with ICRA is the possibility of it actually causing discrimination.
VII. Employer’s information gathering process
a. Questions in job interviews
i. Title VII does not specifically prohibit questions, but questions that directly or indirectly expose status in a protected class can provide evidence of discrimination.
ii. ADA does prohibit questions regarding certain disabilities
iii. Therefore, always as in terms of “can you do this certain job task?”
Job applications
