Employer-Employee Relationship Hiring/Firing and Promotion Contract law rules employment at will wrongful discharge

1. Employer-Employee Relationship Hiring/Firing and Promotion Contract law rules employment at will wrongful discharge Statutory and regulatory rules employment discrimination labor relations financial relations workplace safety

2. Common law claim of“wrongful discharge” prohibits an employer from firing a worker for a bad reason, but this is a narrow exception to the “employment at will” doctrine. • The public policy rule prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities, such as: • Refusing to Violate the Law • Exercising a Legal Right • Performing a Legal Duty (like jury duty)

3. WHISTLEBLOWERS: Employees who disclose illegal behavior of their employers are protected in these situations: • Wrongdoing by government contractors • Government employees speaking out on a matter of public concern • Federal employees reporting illegal federal activity • Reporting illegal activity for which the whistleblower himself could be in trouble • Reporting a co-worker’s illegal activities

4. Under the Equal Pay Act, an employee may not be paid a lesser rate (for equal work) than opposite sex employees. • Title VIIof the Civil Rights Act of 1964 • Prohibits employers from discriminating on the basis of sex, race, color, religion, or national origin. • Religion:Employers must make reasonable accommodation for a worker’s religious beliefs unless the request would cause undue hardship for the business. • Affirmative action is not required by Title VII, nor is it prohibited.

5. Title VII • Disparate treatment: focus on employer’s action • Disparate impact: focus on effect of employer’s action • Process • Plaintiff shows disparate treatment/impact • Defendant shows job practice was job-related • Plaintiff must show that ostensibly valid reason is merely a pretext for what is an underlying invalid reason

6. Title VII • Possible defenses for a charge of discrimination: • Merit • Seniority • Bona Fide Occupational Qualification • E.g., firefighter’s qualifying written exam • E.g., firefighter’s physical test • E.g., beards and gas masks • E.g., Hooters case

7. Sexual Harassment • Involves unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. • Quid pro quo • Hostile Work Environment • A claim of sexual harassment might be valid if sexual innuendo is so pervasive that it interferes with an employee’s ability to do her (or his!) job. • Pregnancy • An employer may not fire or refuse to hire a woman just because she is pregnant. • FMLA: guarantees leave and right to return to the job • Company vs. personal liability

8. Age Discrimination • The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against employees or job applicants who are at least 40 years old. • Xerox cases

9. Americans with Disabilities Act • A disabled person is someone with a physical or mental impairment that substantially limits a major life activity, or someone who is regarded as having such an impairment. • An employer may not disqualify a job applicant or employee because of disability as long as she can, with reasonable accommodation (would not create undue hardship) perform the essential functions of the job. • Sutton v. United Air Lines, Inc.: Is bad eyesight a “disability”?

10. Employee Privacy • In many places, off-duty conduct cannot be regulated by the employer (Ford) • Alcohol and drug testing is allowed by private businesses; government employees may test if signs of use are seen or if job safety is an issue. • Employers may not require or even suggest the use of lie detector tests, except in investigations of crimes.

11. Electronic Monitoring of the Workplace • The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor workers’ telephone calls and e-mail messages if: • the employee consents, • the monitoring occurs in the ordinary course of business, or • in the case of e-mail, the employer provides the e-mail system.

12. National Labor Relations Act • NLRA (or the Wagner Act): • Created the National Labor Relations Board to enforce labor laws, • Prohibits employers from penalizing workers who engage in union activity (for example, joining a preexisting union or forming a new one); and • Certification/election • Requires employers to “bargain in good faith” with unions.

13. Workplace Safety • In 1970 Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions. • Sets specific health and safety standards. • Obliges employers to keep workplace “free from recognized hazards.” • Safety: standards, procedures • Health: indoor air, training

14. Workplace Safety • Rules + inspections + penalties Cost of rules vs. benefits of rules Specifying means vs. specifying ends • Accident + investigation + penalties

15. Financial Protection • Fair Labor Standards • Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages and limits child labor. • Minimum wage • Workers’ Compensation • Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work. • Schedules

16. Financial Protection (cont’d) • Social Security • Currently, the Social Security system pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers. • Pension Benefits • In 1974, Congress passed the Employee Retirement Income Security Act (ERISA) to protect workers covered by private pension plans.