HELP COLLEGE OF ARTS AND TECHNOLOGYIN COLLABORATION WITHSOUTHERN NEW HAMPSHIRE UNIVERSITY____________________________________________

BUSINESS LAW [BUS 206]

LECTURE 14

EMPLOYMENT LAW

EMPLOYMENT LAWINTRODUCTION

Working relationship between employers and employees

In general common law - governs the relationship between employer and employee in terms of tort and contract duties

Now common law supplemented and in some instances replaced by statutory enactments principally at the Federal level

Government regulation now affects the balance and working relationship between employers and employees in three (3) areas:

[1] the general framework in which management and labor negotiate the terms of employment is regulated by Federal statutes designed to promote both labor-management harmony and the welfare of society at large;

[2] Federal law prohibits employment discrimination based upon race, sex, religion, age, disability or national origin; and

[3] Congress in response to the changing nature of American industry and the tremendous number of industrial accidents has mandated that employers provide their employees with a safe and healthy work environment

In this course we will focus upon three (3) categories of government regulation of the employment relationship: [1] labor law [2] employment discrimination law; and [3] employee protection

LABOR LAWPurpose to provide the general framework in which management and labor negotiate terms of employment

Traditionally labor law opposed concerted activities by workers, such as strikes, picketing and refusals to deal, to obtain higher wages and better working conditions

At various times, such activities were found to constitute criminal conspiracy, tortious conduct and violation of antitrust law

As subjecting union workers to criminal sanctions became publicly unpopular, employers began to resort to civil remedies in an attempt to halt unionization the primary tool was the injunction

Congress had to intervene due to public pressure opposing such action

(i) Norris-La Guardia Act

Enacted in 1932 in response to the growing criticism of the use of injunction in peaceful labor disputes

The Act withdrew from the Federal courts the power to issue injunctions in nonviolent labor disputes

More significantly the Act declared it to be United States policy that labor law was to have full freedom to form unions without employer interference

LABOR LAW (Contd)

(ii) National Labor Relations Act (NLRA)

Enacted in 1935 or called the Wagner Act embodied the Federal governments effort to support collective bargaining and unionization

The Act gave employees the right to union representation when negotiating employment terms with their employers

Supreme Court upheld the Act against constitutional challenge in NLRB V. Jones & Laughlin Steel Corp, 301 U.S. 1 (1937): The right of employees to bargain collectively is a fundamental right. Employee have as clear a right to organize and select their representatives for lawful purposes as the respondent [employer] has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority

The Act sought to enforce the collective bargaining right by prohibiting certain employer conduct deemed to constitute unfair labor practices

Under the Act, the following employer activities are unfair labor practices: [1] to interfere with the employees rights to unionize and bargain collectively; [2] to dominate the union;[3] to discriminate against union members;[4] to discriminate against an employee who has filed charges or testified under the NLRA; and [5] to refuse to bargain in good faith with duly established employee representatives [section 8(a)]

The U.S. Supreme Court has interpreted this section to include as an unfair labor practice employer conduct that improves employment conditions or benefits in an attempt to undermine a unions efforts to organize

The Act established the National Labor Relations Board (NLRB) to monitor and administer these employee rights. The NLRB is empowered to order employers to remedy their unfair labor practices and to supervise elections by secret ballot so that employees can freely select a representative organization

LABOR LAW (Contd)(iii) Labor-Management Relations Act (LMRA)

Congress passed the LMRA in 1947

The Act amended the NLRA by declaring the following seven (7) union activities to be unfair labor practices: [1] coercing an employee to join a union; [2] causing an employer to discharge or discriminate against a nonunion employee; [3] refusing to bargain in good faith; [4] levying excessive or discriminatory dues or fees; [5] causing an employer to pay for work not performed; [6] picketing an employer to require it to recognise an uncertified union; and [7] engaging in secondary activities

Secondary activity is a boycott, strike or picketing of an employer with whom a union has no labor dispute to persuade the employer to cease doing business with the company that is the target of the labor dispute

Also prohibits the closed shop although it permits union shops if such are not prohibited by a State right-to-work law

A closed shop contract requires the employer to hire only union members

A union shop contract permits the employer to hire nonunion members but requires them to become union members within a specified time and to remain members in good standing as a condition of employment

The Act reinstates the availability of civil injunctions in labor disputes if requested of the NLRB to prevent an unfair labor practice

(iv) Labor-Management Reporting and Disclosure Act

Also known as the Landrum-Griffin Act is aimed at eliminating corruption in labor unions

The Act attempts to eradicate corruption through an elaborate reporting system and a union bill of rights designed to make unions more democratic

Bill of rights provides union members with the right to nominate candidates for union offices, to vote in elections, to attend membership meetings, to participate in union business, to express themselves freely at union meetings and conventions and to be accorded a full and fair hearing before the union takes any disciplinary action against them

EMPLOYMENT DISCRIMINATION LAWFederal statutes prohibit discrimination in employment on the basis of race, sex, religion, national origin, age and disability

(i) Equal Pay Act

Prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work

The Act forbids an employer from paying wages at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work at the same establishment

Courts define equal work substantially equal rather than identical

Remedies include recovery of back pay, an award of liquidated damages (an additional amount equal to back pay) and enjoining the employer from further unlawful conduct

EMPLOYMENT DISCRIMINATION LAW (Contd)(ii) Civil Rights Act of 1964 (Act)

Prohibits employment discrimination on the basis of race, color, sex, religion or national origin in hiring, firing, compensating, promoting, training and other employment-related processes

Definition of religion includes all aspects of religious observance and practice

Pregnancy Discrimination Act extends the benefits of the Act to pregnant women employer cannot refuse to hire a pregnant woman, fire her or force her to take maternity leave

Equal Employment Opportunity Commission (EEOC) enforcement agency for the Act empowered [1] to file legal actions in its own name or to intervene in actions filed by third parties [2] to attempt to resolve alleged violations through informal means prior to bringing suit [3] to investigate all charges of discrimination and [4] to issue guidelines and regulations concerning enforcement policy

Discrimination prohibited by the Act includes [1] using proscribed criteria to produce disparate treatment [2] engaging in nondiscriminatory conduct that perpetuates past discrimination and [3] adopting neutral rules that have a disparate impact

Defenses four (4) defenses provided by the Act [1] a bona fide seniority or merit system [2] a professionally developed ability test [3] a compensation system based on performance results and [4] a bona fide occupational qualification (does not apply to discrimination based on race)

Remedies include injunctions, affirmative action, reinstatement, back pay and compensatory and punitive damages

Affirmative actions means the active recruitment of minority applicants

Reverse Discrimination refers to affirmative action that directs an employer to remedy the under-representation of a given race or sex in a traditionally segregated job by considering an individuals race or gender when hiring or promoting

Sexual Harassment - an illegal form of sexual discrimination that includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature The U.S. Supreme Court has also held that sex discrimination consisting of same-sex harassment is actionable under the Act

EMPLOYMENT DISCRIMINATION LAW (Contd)(iii) Executive Order

Prohibits discrimination by Federal contractors on the basis of race, color, gender, religion or national origin on any work the contractors perform during the period of the Federal contract

(iv) Age Discrimination in Employment Act of 1967

Prohibits discrimination in hiring, firing, compensating or other employment-related processes on the basis of age when the employee or applicant is over forty years old

Applies to private employers having twenty (20) or more employees and all governmental units regardless of size

(v) Disability Law

Rehabilitation Act attempts to assist the handicapped in obtaining rehabilitation training, access to public facilities and employment prohibits discrimination on the basis of handicap in Federal programs and programs receiving Federal financial assistance

Handicapped person defined as an individual who [1] has a physical or mental impairment that substantially affects one or more of her major life activities [2] has a history of major life activity impairment or [3] is regarded as having such an impairment

Major life activities include such functions as caring for oneself, seeing, speaking or walking

Americans with Disabilities Act forbids an employer from discriminating against any person with a disability with regard to hiring or dischargeemployee compensation, advancement, job training and other terms, conditions and privileges of employment

EMPLOYEE PROTECTIONEmployees are accorded a number of job-related protections

Include a limited right not to be unfairly dismissed, a right to a safe and healthy workplace, compensation for injuries sustained in the workplace and some financial security upon retirement or loss of employment

(i) Employee Termination at Will

Under common law a contract of employment for other than a definite term is terminable at will by either party

Under common law employers may dismiss their employees at will for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong

Statutory Limitations have been enacted by the Federal government and some States to limit the employers right to discharge

Judicial Limitations based on contract law, tort law or public policy

(ii) Occupational Safety and Health Act (OSHA)

Congress enacted to ensure as far as possible a safe and healthful working environment for every worker

Prohibits any employer from discharging or discriminating against an employee who exercises her rights under the Act

EMPLOYEE PROTECTION (Contd)(iii) Employee Privacy

Major issue

Fundamental right to privacy is a product of common law protection

Employee protection from unwanted searches, electronic monitoring and other forms of surveillance and disclosure of confidential records is safeguarded by the tort of invasion of privacy

Invasion of privacy consists of four (4) different torts:

[1] unreasonable intrusion into the seclusion of another; [2] unreasonable public disclosure of private facts; [3] unreasonable publicity that places another in a false light; and [4] appropriation of a persons name or likeness

Drug and Alcohol Testing some States either prohibit such tests or prescribe certain scientific and procedural safeguards

Lie Detector Tests The Federal Employee Polygraph Protection Act prohibits private employers from requiring employees or prospective employees to undergo a lie detector test, inquiring about the results of such a test or using the results of such a test or the refusal to be thus tested as grounds for an adverse employment decision

EMPLOYEE PROTECTION (Contd)(iv) Workers Compensation

Compensation awarded to an employee who is injured in the course of his employment

At common law - the basis of most actions by an injured employee against his employer was the employers failure to use reasonable care under the circumstances to ensure the employees safety

However, the employer could make use of several well-established defenses including:

[1] the fellow servant rule; [2] contributory negligence on the part of the employee; and [3] the doctrine of assumption of risk by the employee

Fellow servant rule - relieved an employer from liability for injuries an employee sustained through the negligence of a fellow employee

Contributory negligence common law defense if an employer established that an employees negligence contributed to the injury he sustained in the course of his employment, in many jurisdictions the employee could not recover damages from the employer

Voluntary assumption of risk at common law an employer was not liable to an employee for harm or injury caused by the unsafe condition of the premises if the employee with knowledge of the facts and an understanding of the risks involved, voluntarily entered into or continued in the employment

EMPLOYEE PROTECTION (Contd)(v) Social Security and Unemployment Insurance

Social Security - measures by which the government provides economic assistance to disabled or retired employees and their dependents

Unemployment Compensation Federal Unemployment Tax Act provided to workers who have lost their jobs, usually through no fault of their own help workers who are temporarily out of work and who need to support themselves while they search for jobs

(vi) Fair Labor Standards Act

Regulates the employment of child labor outside of agriculture

Prohibits the employment of anyone under fourteen years of age in all non-farm work except newspaper delivery and acting

(vii) Workers Adjustment and Retraining Notification Act

Federal statute that requires an employer to provide sixty days advance notice of a plant closing or mass layoff

Plant closing permanent or temporary shutting down of a single site or units within a site if the shutdown results in fifty or more employees losing employment during any thirty-day period

Mass layoff loss of employment during a thirty-day period either for 500 employees or for at least one-third of the employees at a given site, if that one-third equals or exceeds fifty employees

(viii) Family and Medical Leave Act

Requires some employers to grant employees leave for serious health conditions or certain other events such as for the birth of a child, adopting or gaining foster care of a child, or the care of a spouse, child or parent who suffers from serious health condition

Serious health condition - an illness, injury, impairment or physical or mental condition that involves inpatient medical care at a hospital, hospice or residential care facility or continuing medical treatment by a health care provider