Chapter 18: Employment Law Flashcards
employment at will doctrine
employee can be discharged at any time for any reason-employer need not show cause or any good reason
when does the employment at will doctrine not apply?
if an employment contract for a definite term exists or the contract establishes the manner in which the employee may be terminated
what conditions are commonly discussed in a written employment contract?
- termination by employer for cause
- termination by employee for cause
- employee quits w/o cause (and is in breach of contract)
- employer terminates employee w/o cause (breach)
- death of employee
- disability of employee
exceptions to right to terminate an employee “at will”
- federal and state statutes regarding labor law and anti-discrimination laws
- contract theories
- public policy (whistleblower)
- tort theories (fraud)
typical state worker’s comp. statute characteristics
- admin. procedure allows employees to receive compensation for injuries that occur on the job (no court action necessary)
- based on doctrine of strict liability of employer if injuries are on the job related
- employers are required by law to buy insurance to cover worker’s claims, pay into a state-managed fund or be self-insured
- amounts recoverable are established by statute
- this is the only remedy for the employee
what amounts are recoverable?
- hospital and medical benefits
- disability benefits
- recovery for certain type of injury
- death benefits to dependents
employer defenses to worker’s compensation claim
- employee really an independent contract and not covered by statute
- injury not employment related
- employee engaged in horseplay
- in WI if resulting from intoxication the compensation and death benefits are reduced by 15% but not exceeding $15,000
occupational safety and health act
- OSHA
- 1970
- intended to promote safety in the work place-virtually all private employers are w/in scope of the act
- act imposes record keeping and reporting requirements on employers and requires them to post notices in the work place informing employees of their rights
administered by occupational safety and health act
does not preempt state regulation (but state law must be at least as stringent as federal law)-OSHA must approve state places
what safety standards does OSHA establish?
- general duty: to keep work enviro hazard free
- specific duties: very details
compliance with OSHA enforcement and penalties
- OSHA empowered to conduct inspections
- OSHA issues citations which require the employer to abate or correct the situation w/in 6 mo. -employer can contest citation
- various civil and criminal penalties can be imposed on employers
employer defense to OSHA
- compliance w/ the rule is not feasible
- employee misconduct caused violation of the rule
can an employer discharge an employee who exercises their rights under OSHA?
no! even if employee was an at will employee, this would be regarded as an unlawful retaliatory dismissal
equal opportunity in employment-discrimination in the work place
- were you discriminated against w/ regard to a term, condition, or privilege of employment?
- pretext-employers do not overtly or expressly discriminate
what must the employee show to prove discrimination occurred
- employee was a member of a protected class and the decision was made adverse to the employee
- employee must make a prima facie showing that discrimination occurred
whats prima facie is made who does the burden shift to?
the employer; they must articulate a legitimate, non-discriminatory basis for the decision
after employer justifies the action who does the burden shift to?
back to the employee; they must prove that alleged legitimate, non-discriminatory basis is in fact, pre-textural
equal employment opportunity commission
- federal agency responsible for enforcing most federal anti-discrimination laws
- 5 members appointed by president
- empowered to conduct investigations, interpret statutes, bring suit to enforce the law, and issue guidelines and regulations concerning enforcement policy
WI counterpart of Equal employment opportunity commission
Department of Workforce Development-Equal Rights Division
WI fair employment act
expands protected classes and coverages-prohibits discrimination on the basis of age, race, creed, color, handicap, marital status, sex, national origin, ancestry, arrest record, conviction record, membering in the national guard or other military forces, or for the use or non use of lawful products off the employer’s premises during non-work hours
madison equal opportunity ordinance
same as Wisconsin + source of income, less than honorable discharge, physical appearance, sexual orientation, political beliefs or the fact that the person is a student
equal pay act
- can’t discriminate btw employees on the basis of sex by paying wages at a rate less than the rate at which he pays wages to employees of the opposite sex
- scope of coverage extends to nearly all employers (but federal workers are exempt)
- extends to jobs that require skills or equal effort and are performed under similar working conditions
statutory criteria that justify or permit differential in wages
- bona fide seniority based system
- bona fide merit based system
- quantity or quality of product
- any other factor other than sex
remedies to unequal and unlawful pay
- private cause of action against employer
- employee can recover back pay and wages increased
Title 7
-intended to eliminate job discrimination based on race, color, religion, sex or national origin
scope of coverage of title 7
- employers with 15+ employees for 20 weeks in the current or preceding year
- all employment agencies
- labor unions w. 15+ members or that operate a hiring hall
- state and local Govs and their agencies
- most federal gov employment
disparate treatment discrimination
- one on one discrimination
- need to show discriminatory intent on part of employer
ex: employer terminates employee based on his race
disparate impact discrimination
a facially natural rule or requirement of employer that in fact discriminates
sexual harassment
unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature, including such conduct directed by a person at another person of the same or opposite gender
employer duties related to sexual harassment
has duty to take prompt, appropriate action to deal w/ harassment which the employer knew or should’ve known occurred
quid pro quo harassment
- this for that
- employer conduct that conditions job benefits for sex
hostile enviro harassment
an employee who is subjected to a hostile intimidating or offensive work enviro which is so severe or pervasive that it alters the conditions of his/her employment
employer defenses to sexual harassment claim
- claim is false
- conduct not unwelcome
- employee suffered no tangible negative employment action (in quid pro quo cases only)
- the conduct was not severe or pervasive (in hostile enviro cases only)
enforcement of sexual harassment claim
complaint must be filed w the EEOC which is then given opportunity to sue employer on the complaintants behalf or issues right to sue letter for complainant to sue employer themself
remedies to victims of sexual harassment
up to 2 years back pay, reasonable attorney’s fees, compensatory damages, reinstatement, granting seniority and injunctive relif
defenses to title 7 claim
- bona fide merit based decision making based on an employee achieving defined goals
- bona fide seniority system to promote tenure on the job
- bona fid occupational qualification (never applicable to race or color disc.)
- any other legitimate business reason
age discrimination employment act
- 1967
- prohibits age disc. in all employment decisions
scope of coverage for age discrimination employment act
- non-federal employers with at least 20 non-seasonal employees
- labor unions with 25+ members
- employment agencies
- state/local gov employees
enforcement of age discrimination employment act
- administered by EEOC
- actions generally brought by EEOC, but private plaintiffs can also sue under ADEA but must first file a complain w./ the appropriate state agency and the EEOC
remedies for the age discrimination employment act
unpaid back wages, attorney’s fees, and equitable relief including hiring, reinstatement, and promotion
defenses to the age discrimination employment act
- a bona fide occupational qualification
- bona fide seniority system
- bona fide employee benefit plan (linked to age)
- other legit business reason
Americans w/ disabilities act
(1990-amended in 2008)
- imposes significant obligations on employers/providers of public transportation, telecommunications and public accommodations to accommodate ind.s w/ disabilities
- prohibits employment related discrimination
scope of the Americans w/ disabilities act
employers with 15+ employees
qualified individual w/ disability
a person who with or without reasonable accommodation can perform the essential functions of the job
disable person
someone who has:
- a physical or mental impairment that substantially limits one or more of his or her major life activities
- a record of such impairment
- is regarded as having such impairment
what does title 1 of the Americans w/ disabilities act do?
limits the employer’s ability to inquire into or test for an applicant’s disabilities-forbids an employer from asking a job applicant about the existence, nature, and severity of a disability
what the employee must prove to show the Americans w/ disabilities act was not followed
- employee is a qualified individual w/ disability
- employer knew of employee’s disability
- the employee could perform the essential functions of the job w/ some accommodation
- the employer failed to reasonably accommodate the disability
enforcement of the Americans w/ disabilities act
administered by the EEOC following the procedural framework of title 7 actions
remedies for the Americans w/ disabilities act
injunction, hiring or reinstatement (with or without back pay) and payment of attorney’s fees
employer defenses against being accused of breaking Americans w/ disabilities act
- accommodations would cause undue hardship (significant difficulty or expense)
- applicant cannot satisfy a test, standard, or selection criteria that is job-related and cannot be accommodated
- applicant would pose a direct threat to the health or safety of others in the work place
- food handlers defense (does not apply to HIV)
- religious entity preference rights
