CH12 +13- Employment Law + Employment Discrimination Flashcards
Common Law
At common law, all employment was “at
will,” meaning that either party could
terminate the employment relationship at any
time for any reason, unless a contract
provided to the contrary.
* Today, many statutes have been enacted that
limit the “at will” doctrine and provide
substantial protection for employees.
Wrongful Discharge
Whenever an employer discharges an
employee in violation of law or contract,
the employee may bring an action for
wrongful discharge, based on
– contract theory
– tort theory
– public policy
* The availability of actions such as these
represent the increasing erosion of the basic
“employment-at-will” doctrine.
Contract Wrongful discharge
Whenever an employer discharges an
employee in violation of law or contract,
the employee may bring an action for
wrongful discharge, based on
– contract theory
– tort theory
– public policy
* The availability of actions such as these
represent the increasing erosion of the basic
“employment-at-will” doctrine.
Tort Wrongful Discharge
Employees may recover for wrongful
discharge under several tort theories:
– Abusive discharge procedures may result in
employer liability for intentional infliction of
emotional distress.
– Promises that are broken by an employer may
give rise to a action for fraud, especially if an
employer induces an employee to leave an
existing job based on false promises
Public policy wrongful discharge
Employees have a cause of action for
wrongful discharge if they are fired in
violation of public policy, such as:
– For race, religion, gender (or pregnancy),
national origin, or age
– Sexual orientation/gender identity protection
added in 2020 (Bostock v. Clayton Cty, GA)
– For whistleblowing
* (informing the public about the illegal activity).
– For refusal to perform an illegal act or
involving significant risk of death or injury
Child Labor Laws
The Fair Labor Standards Act (FLSA) prohibits oppressive
child labor:
– Children under 14 may only perform certain jobs such as paper
delivery, work for parents, entertainment & agricultural work.
– Children 14 to 15 may work, with a work permit, but not in hazardous
jobs, not during school hours, not more than 3 hours on school days,
not more than 8 hours on non-school days, not more than 18 hours in a
school week, not more than 40 hours in a non-school week, and not
before 7AM or after 7PM, except during summer vacation when they
may work until 9PM.
– Those age 16 and 17 may work without hourly restriction, but cannot
work in hazardous jobs.
Hours and Wages
Minimum wages must be paid of $7.25 per hour
since 7/24/09
– Wages include reasonable costs of an employer in
furnishing room and board
* Hours over 40 worked in any week must be
paid at 1.5 times the regular rate, except:
– Executives (primary job is management)
– Outside sales people
– Administrative employees (must be salaried,
managers)
– Tipped employees
Labor Unions
National Labor Relations Act
– Bars employers from:
* Interference with union organization or activity
* Discrimination against union members in hiring or
promotion
* Refusal to bargain with union leaders
* Firing striking workers (but may replace them)
– Strikers get first crack at openings and retain seniority
Labor Management Relations Act
Bars closed shops but allows union shops
– Cannot require union membership as a
condition for employment
– Can require employees to join a union after a
specified employment period
– Allows state right-to-work laws
* Some states make required union membership
illegal
Worker health and safety
The Occupational Safety & Health
Administration (OSHA) is responsible for
enforcing the Occupational Safety & Health
Act. The Act provides that all employees
shall have a safe work environment.
* When employees are injured on the job,
workers’ compensation laws provide for an
administrative remedy for worker redress.
Workers compensation
Workers’ compensation laws vary from
state to state, but generally provide:
– Employees have the right to benefits in the
event of an on-the-job injury.
– Fault is not a factor in the claim, so long as the
injury is accidental.
– Injuries commuting are generally not covered.
– Employees are generally barred from suing the
employer for on the job injuries.
Income Security
Social Security provides for retirement,
survivor, and disability insurance.
– Both employers and employees must contribute
under Federal Insurance Contributions Act (FICA)
(6.2% up to $132,900 2019) and to Medicare
(1.45%, no wage limit).
– Retired + disabled workers receive monthly checks
– Medicare is administered by the Social Security
Administration for people 65 and older or disabled
individuals.
ERISA
ERISA establishes standards for employee
pension plans that are set up by employers
to provide retirement benefits.
* Employers are not required to have pension
plans, but if there is a plan, ERISA controls
the plan management.
* One of the main provisions of ERISA
involves the vesting of pension rights.
Prior to ERISA, employees could work for a
company for 30 years and then be fired or
laid off and lose all their pension rights
because those rights were not vested.
* Under ERISA, however, employee
contributions are required to vest
immediately, and employer contributions
must vest within 5 years.
Unemployment compensation
The Federal Unemployment Tax Act of 1935
created a state system that provides
unemployment compensation for certain
individuals.
* Employers pay premiums to a fund that is
maintained by the states by managed by the
federal government.
* The act is designed to protect individuals who
have lost their jobs through no fault of their own.
COBRA
applies to employers with 20 or more
employees
* Protects health insurance coverage for
voluntary or involuntary employment loss
* Applies to covered spouses, exes and
dependents
* Workers have 60 days to decide whether to
continue with group coverage and may do so
for up to 18 months (29 months if disabled)
– employee must pay premiums + 2% admin fee
Affordable Care Act
An alternative to COBRA for separated workers
Title I key provisions
*No dropping insured individuals for reasons other
than fraud
*Elimination of higher costs / denials for
preexisting conditions
*Required coverage of immunization, preventive
care, and contraception
*Dependent coverage extended to age 26
*Uniform coverage documents to allow
comparisons between policies
*80% cap on non-medical spending by insurers
*Originally there were penalties for non-
coverage; penalties eliminated in 2018
*Business must insure full-time workers
*Establishes health insurance marketplaces
Family and medical leave
The Family & Medical Leave Act (FMLA) requires
employers with 50 or more employees to provide
employees with up to 12 weeks of family or medical leave
during any 12 month period, during which the employer
must continue health coverage and guarantee employment
in the same or comparable position upon return.
* Key employees (top 10%) need not be reinstated
– Family leave is for births, adoptions, or foster placements.
– Medical leave is available if the employee or employee’s spouse,
child or parent has a serious health condition requiring care.
Sexual harassment
Legally, sexual harassment includes
unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature that:
1. Is required or offered in exchange for
employment or employment related decisions,
(called quid pro quo), OR
2. Is so severe or pervasive that it creates a hostile
work environment (called hostile environment).
Sexual harassment issues
- Harm is not an element of harassment.
- An unequal power relationship is generally at
the root of an harassment, and is legally
necessary for quid pro quo claims. - Unwelcomeness is always a required element.
- Behavior is judged based on cultural norms.
- Men constitute 16% of claimants, up from 8%
in 1990.
– Some from female supervisors, but most are either
unwanted male advances (by men) or teasing (by
men) for being gay or insufficiently masculine.
Sexual Discrimination
Sexual discrimination is either:
1. Differentiation based on sex when it can be
shown that the opposite sex in the same
position is not treated the same, OR
2. A rule or practice that disproportionately
burdens members of one sex.
* Note that there can be discrimination
without harassment and also harassment
without discrimination.
Americans With Disabilities Act
- The ADA protects employees from
discrimination against disabled persons who
are qualified for a particular job’ - A person is disabled if s/he has a physical
or mental impairment that substantially
limits a major life activity.
– Blindness, alcoholism, heart disease, cancer,
muscular dystrophy, cerebral palsy, paraplegia,
diabetes, AIDS, and morbid obesity all qualify - If an employee with a disability can perform
essential job functions with a reasonable
accommodation, then the employer must
make the accommodation.
– Reasonable accommodations include wheelchair
access, flexible work hours, modified job
assignments, and modified training - Failure to provide accommodations is
excusable upon a showing of undue hardship
