Employee and Labor Relations Flashcards
common law doctrines
Case law. Most common is the concept of employment at will. Also include respondeat superior, constructive discharge, and defamation.
Payne v. The Western & Atlantic Railroad Company (1884)
Defined employment at-will as: “either party may terminate the service, for any cause, good or bad, or without cause, and the other cannot complain in the law.” Employers can change employment conditions, whether it is to hire, transfer, promote, or terminate an employee, at their sole discretion. It also allowed employees to leave a job at any time, with or without notice.
employment contract as an exception to employment at-will
Contract can be express or implied.
express employment contract
Express contracts can be verbal or written agreements in which both parties state exactly what they agree to do. Employers have been known to express their gratitude for a job well done with promises of continued employment, such as “keep doing the kind of work you’re doing and you’ll have a job for lief” or “you’ll have a job as long as we’re in business.” This can invalidate employment at will.
implied employment contract
Can be created by an employer’s conduct and need not be specifically stated. An employer’s constant application of a progressive discipline policy can create an implied contract that an employee won’t be terminated without first going through steps set forth by the policy. A disclaimer can offset the effects of an implied contract; however, there is little agreement in the courts as to what and how the disclaimer must be presented in order to maintain at-will status. It is generally agreed, however, that the goal of a disclaimer is to be fair and honest with the employee about their expectaions, and to remind employees that no statement may alter the at-will status of employment.
statutory exceptions to at-will employment doctrine
You can’t terminate an employee for any of the discriminatory reasons laid out in law (ADA, Title VII, FMLA, etc)
public policy exceptions to at-will employment doctrine
You can’t fire an employee for:
- refusing to break the law on behalf of the employer (Petermann v. International Brotherhood of Teamsters)
- reporting an illegal act of the employer (being a whistle-blower)
- participating in activities supported by public policy, such as cooperating in a government investigation of wrongdoing by the employer
- acting in accordance with a legal statute, such as filing worker’s comp or attending jury duty
Petermann v. International Brotherhood of Teamsters
Public policy exceptions to employment at will doctrine. “Employer can’t discharge an employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute.” Has been carried over to mean that an employer can’t discharge an employee for refusing to break any law on behalf of the employer.
duty of good faith and fair dealing
tenet of common law - parties of a contract have an obligation to act in a fair and honest manner to ensure that benefits of a contract may be realized. Application varies from state to state in employment issues.
promissory estoppel
Occurs when an employer entices an employee or prospective employee to take an action by promising a reward. The employee takes the action, but the employer doesn’t’ follow through on the reward. For example, an employee promises a job to a candidate who resigns another position to accept the new one, and then the candidate finds the offered position has been withdrawn. IF a promise is clear, specific, and reasonable, and an employee acts on the promise, the employer may be required to follow through on the promised reward or pay equivalent damages.
fraudulent misrepresentation
Relates to promsies or claims made by employers to entice candidates to join the company. Ex - a company decides to close a location in 6 months, but needs to hire a general manager to run it in the mean time. If when asked about the future of the company during the recruitment process, the company tells candidates the plant will be expanded and withholds the intention to close the plant, the company fraudulently misrepresented the facts.
respondeat superior
Employer can be held liable for actions of its employees that occur within the scope and course of assigned duties or responsibilities in the course of their employment, regardless of whether the act is negligent or reckless (including sexual harassment, auto accidents on the job). Can also come into play if a manger promised additional vacation time to a candidate and the candidate accepted the position based on the promise. Even if the promise wasn’t in writing and was outside the employer’s normal vacation policy, and the manager made the promise without prior approval, the employer could be required to provide the benefit.
constructive discharge
Occurs when an employer makes the workplace so hostile and inhospitable that an employee resigns. Legal standard varies between states - some require the employee show the employer intended to force the resignation, other only require the employee show the conditions were sufficiently intolerable that a reasonable person would feel compelled to resign or have knowingly permitted intolerable conditions (sexual harassment).
(dude from Office Space!)
defamation
Communication that damages an individual’s reputation in the community, preventing them from obtaining employment or other benefits. When an employer, out of spite or with a vengeful intent, sets out to deliberately damage a former employee, the result is malicious defamation.
qualified privilege
Protects employers against defamation claims in providing references if the info they provide is job-related, truthful, clear, and unequivocal.
sexual harassment
Title VII of the Civil Rights Act requires employers provide a workplace free from sexual harassment. There are two types of harassment: quid pro quo and hostile work environment.
quid pro quo sexual harassment
Occurs when a supervisor or manager asks for sexual favors in return for some type of favorable employment action.
hostile work environment - sexual harassment
Defined by the EEOC as one in which an individual or individuals are subjected to unwelcome verbal or physical conduct when submission to or rejection of this conduct explicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. EEOC looks at number of occurrences, type of action, who the action was directed towards. Courts have held employers liable for the harassing actions of their employees, whether or not the employer was aware of the harassment.
Meritor Savings Bank v. Vinson (1986)
The mere existence of a grievance procedure and a policy against discrimination is not enough to protect an employer from the acts of its supervisors. Policies should be designed to encourage victims of harassment to come forward.
Harris v. Forklift Systems (1993)
The appropriate standard for a hostile work environment is one that falls between what is merely offensive and that which results in tangible psychological injury. Although not precise, it allows courts to take into consideration factors about work environment, frequency and severity of conduct, level of threat or humiliation to which the victim is subjected, and whether the conduct interferes unreasonably with performance of the employee’s job.
Faragher v City of Boca Raton (1998)
Employers are responsible for actions of those they employ and have a responsibility to control them. Supervisors need not make an explicit threat of an adverse tangible employment action for harassment to be actionable. Subordinates know that the possibility of adverse supervisory actions exists whenever requests are made, even if the adverse actions aren’t stated.
tangible employment action (TEA)
significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits
Burlington Industries v. Ellerth (1998)
Established that employers have vicarious liability for employees victimized by supervisors with immediate or higher authority over them who create an actionable hostile work environment.
vicarious liability
an employer may be held accountable for the harmful actions of the employees, whether or not the employer is aware of them.
Oncale v. Sundowner Offshore Services (1997)
Prevented male-on-male harassment. Even though the intent of Title VII was to protect women in the workplace, “sexual harassment of any kind that meets the statutory requirement” must be covered as well.
Medina Rene v. MGM Grand Hotel, Inc
Title VII doesn’t explicitly offer protection on the basis of sexual orientation, but when Rene was harassed due to his sexual orientation, the court found the conduct to be discriminatory.
EEOC Guidelines for Prevention of Sexual Harassment
- Develop anti-harassment policy. Should state was is unacceptable conduct.
2, Provide clear complaint procedures for those who believe the have been harassed. Should reassure employees who complain will be protected from retaliation. Should provide multiple avenues for reporting and provide assurance of confidentiality. - Investigations should be prompt and impartial.
- If investigations find harassment did occur, the policy should provide for immediate corrective action.
employer liability in sexual harassment cases
Liability always exists if there is a TEA. If there is no TEA, liability may be avoided with an affirmative defense including the following:
- The employer exercised reasonable care to prevent and correct promptly any harassing behavior (followed EEOC guidelines)
- The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise avoid harm.
Glass Ceiling Act
Established a commission to determine whether a glass ceiling existed, and if it did, to identify the barriers to placing more women and minorities in senior management positions. Commission found that belief in need for women and minorities in key positions wasn’t shared in all management levels. Three barriers:
- societal - bias and educational opportunities
- internal business structures - outreach, recruiting, training, mentoring
- governmental barriers - EEO and statistics
As a result, EEO conducts audits to make sure women are at all levels in orgs.
Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994
Enacted to protect the rights of reservists called to active duty. Provides reemployment and benefits rights and is administered through the Veterans Employment and Training Service (VETS) of the DOL. Applies to all public and private employers in the US, including the federal government.
USERRA coverage
- covers all employers
- covers all members of uniformed services
- prohibits discrimination due to past, current, or future military obligations
- in addition to service during war or national emergency, USERRA protects voluntary or involuntary service such as active duty, training, boot camp, reserve weekend duty, National Guard mobilizations, and absence due to required fitness-for-duty exams
USERRA notice requirements
- employees must give verbal or written notice that they have been called to active service. if the employee is unable to give notice, a military representative may provide the notice.
- if military necessity prevents advance notice, or if giving notice is impossible or unreasonable, employees are still protected
- to be eligible for reemployment rights, employees must report back to work within the reasonable time frames that vary according to length of service
USERRA leave durations
- employer must grant a leave of absence for up to 5 years
- types of leave protected without time limits include boot camp, initial service period, waiting for orders, and annual 2 week mandatory training
- employees are permitted to moonlight during off-duty hours without losing reinstatement rights
- employees don’t lose reinstatement rights if they leave their jobs to prepare for mobilization but mobilization is canceled.
USERRA compensation requirements
- employers are not required to pay employees during military leave absences, unless they have a policy of doing so
- Employers may not require employees to apply accrued vacation pay to their military leaves, but employees may choose to do so
USERRA benefit protection requirements
- employees on military leave are entitled to the same benefits employers provide for others on a leave of absence
- employers continue to accrue seniority and other benefits as though they were continuously employed
- for leave greater than 30 days but less than 240 days, employers must offer COBRA coverage on the request of the employee. If less than 31 days, employer must continue regular coverage.
- returning service members are entitled to participate in any rights and benefits provided to employees returning from nonmilitary leave of absence
USERRA pension protection
- employee pension rights are protected by USERRA
- vesting and accrual for returning service members are treated as though there was no break in employment
- employer pension contributions must e the same as though the military leave didn’t occur
- for defined-contribution plans, service members must be given three times the period of the military absence to make up contributions that were missed during the leave. Plans with an employer matching component are required to match the funds.
USERRA reinstatement rights
Employers must promptly reinstate employees to positions the employees would have earned had they remained on the job, referred to as an escalator position. Temporary, seasonal, and contract employees do not have reinstatement rights. Reemployment rights are forfeited in the case of a dishonorable discharge.
USERRA continued employment requirements
Employers cannot discharge an employee without cause for 6 months if they’ve been gone less than 6 months. If they’ve been gone more than 6 months, employers can’t discharge an employee for a year
USERRA and disabled veterans
Employers must make reasonable accommodations to provide training or retraining to reemploy a service member disabled as a result of service. If reasonable accommodation creates an undue hardship, reemployment can be made to a position “nearest approximate” in terms of status and pay with the full seniority to which the person is entitled.
USERRA reemployment reporting times for 1-30 day absence
first regularly scheduled workday that begins 8 hours after end of service completion
USERRA reemployment reporting times for 31-180 day absence
Submit application for reemployment no later than 14 days after the end of service, or on the next business day after that.
USERRA reemployment reporting times for more than 181 day absence
Submit application for reemployment no later than 90 days after the end of service or on next business day after that
USERRA reemployment reporting times after disability incurred or aggravated due to service
The normal application or reporting deadline is extended for up to 2 years
Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc.
USERRA requires employers to prove that a TEA would have occurred regardless of the employee’s military status. The burden of proof is on employers to show that they would take an adverse action against an employee regardless of his or her military status.
due process
Employment actions are taken in accordance with established procedures, including notifying employees of pending actions and providing the opportunity to respond to any allegations prior to making a final adverse employment decision.
duty of diligence
requires an employee to act with reasonable care and skill in the course of performing work for the employer.
duty of obedience
requires employees to act within authority granted by the employer and to follow the employer’s reasonable and legal policies, procedures, and rules
duty of loyalty
requires the employees act in the best interest of the employer and not solicit work away from the employer to benefit themselves
organizational climate
Describes how people feel about an organization based on observable practices and employee perceptions. Climate is influenced by org structure and management style.
organizational culture
The values and beliefs shared at all levels and reflected by interactions between employees in the org as well as customers and vendors. Includes the workplace atmosphere and the way newcomers are integrated.
skip-level interview
Employees are interviewed by their manager’s manager to get insight into employee goals and job satisfaction, as well as offer career counseling.
diversity
True diversity programs recognize the different levels of knowledge, talent, perspectives, problem-solving skills, and customer-service techniques that naturally exist in a diverse workplace. Mentoring, peer-recognition, brainstorming groups and employee committees are all examples of programs that can help improve an org’s cultural inclusiveness.
policies
broad guidelines developed by the employer to guide organizational decisions
procedures
provide further explanation and more detail on ho a policy is to be applied
work rules
state what employees my or may not do to comply with a policy
Pharakhone v. Nissan North America
Nissan fired Pharakhone for managing his wife’s restaurant while he was on FMLA from Nissan for the birth of his wife’s child. Per the courts, if a uniformly applied policy governing outside or supplemental employment (a rule against working on FMLA leave in the employee handbook) results in the employee’s discharge, the employer need not reinstate the employee. Established that employees who violate company rules while on FMLA leave may be terminated.
discipline
Performance management tool that is designed to modify employee behavior through use of negative consequences. A good discipline policy doesn’t necessarily tie an employer to specific steps, but rather makes a statement about the employee’s responsibilities and consequences for failing to execute those responsibilities in accordance with company guidelines.
Weingarten Rights
Employees are entitled to have a union representative present at any investigatory interview that the employee believes could result in disciplinary action. Employers aren’t required to inform employers of the right, but if an employee requests that a co-worker be present the employer has three options:
- discontinue the interview until the coworker arrives
- make disciplinary decisions based on other facts without the interview
- give the employee the choice of voluntarily waiving Weingarten rights and continuing the interview
Currently only applies to union employees but has applied to nonunion employees in the past so best to play it safe!
wrongful termination
Occurs when an employer terminates someone for a reason that is prohibited by statute or breaches a contract. An employee may not be terminated because they are a member of a protected class. If an employer gives a different reason for the termination, but the employee can prove the real reason was based on a discriminatory act the termination would still be wrongful. Employees may not be terminated as retaliation for worker’s comp or for whistle-blowing activity.
Jespersen v Harrrah’s Operating Co.
Different dress policies for men and women (wearing skirts, wearing makeup, wearing ties) are not discriminatory, as long as there are similar burdens for males and females and that the differences in requirements place similar burdens on both genders. Established that a dress code requiring women to wear makeup doesn’t constitute an unlawful sex discrimination under Title VII.
