Labor and Employment Law

1. Labor and Employment Law An overview

2. Authoritative sources of law in the US • Federalism: Two systems, both operating directly on individuals • Supremacy clause • Xth Amendment • Federal and State Constitutions • Statutes • Agency regulations • Court decisions

3. Some of the roles played by courts • Restraining legislators and executives by judicial review under the constitutions • Interpreting statutes and regulations • Policing agency fidelity to statutes • Developing and applying “common law” doctrines

4. Some common law categories • Tort • Physical injury • Infliction of mental distress • Harm to reputation • Invasion of privacy • Contract • What promises should we enforce? • What is a “breach”?

5. Physical Safety • Preventing injury and disease • OSHA (1970) • State worker safety laws (section 18 laws) • Specialized safety statutes • Mine workers • Transportation employees • Nuclear workers • Laws protecting the general public (FIFRA, etc)

6. Physical Safety (cont.) • Compensating for injury and death • Actions for damages • Traditional tort principles • FELA • Workers Compensation • Disability Benefits under Social Security • Vocational Rehabilitation Programs • Private insurance

7. OSHA • Two principal duties: • General duty clause: “. . . furnish . . . employment and a place of employment . . . free from recognized hazards . . Likely to cause death or serious physical harm . . . .” • Standards: “shall comply with occupational safety and health standards promulgated under this [Act]”

8. OSHA (cont) • Enforcement: • Inspections (no advance notice; warrant may be required, but only “administrative probable cause” needed to get one) • Proposed penalties usually include (a) civil penalty; (b) abatement • Review by OSHRC • Further review by US Circuit Court of Appeals

9. Workers compensation • Contrast with tort recovery: • In tort, injured worker must prove employer fault (usually “negligence”); in worker’s compensation, most fault is not relevant, only connection between injury and employment • In tort, damages are determined on basis of individual economic and non-economic loss; in workers compensation, recovery is limited: • Medical treatment • Partial wage loss, sometimes based on injury severity, sometimes on actual wage loss • Death benefits for dependents

10. Privacy and Reputation • Tort law principles • Defamation • Right of privacy • Intentional infliction of mental distress (the “outrageous conduct” tort)

11. Defamation • Defamation: A (a) false statement (b) published to one or more persons (c) about another person that is (c) defamatory in nature, made (d) without privilege, under circumstances such that the publisher is (e) at fault.

12. Common law Right of Privacy • Appropriation • Placing a person in a “false light” • Public disclosure of private facts • Unreasonable intrusion

13. Intentional infliction of Mental Distress • Caused by conduct that “goes beyond the bounds of decency” (unfounded accusations of crime; threats) • Many courts search for objective evidence of harm, such as inability to work

14. Privacy and Reputation (cont.) • Federal statutes • FOIA and the Privacy Act of 1974 • Fair Credit Reporting Act • OCCSSA and ECPA (“interception” as key) • Employee Polygraph Protection Act • Drug-Free Workplace Act • Americans with Disabilities Act • HIPPA (medical records)

15. Privacy and Reputation (cont.) • State statutes • Acts going beyond federal protections: credit reporting, telephone interception • Medical records • Confidentiality and accuracy of employment records (E.g., Illinois record correction statute)

16. Privacy and Reputation (cont.) • Federal constitutional protections (I, IV, V, XIV) • The public-private sector distinctions • Public employees • Private sector employees, government intrusion • State constitutional protections • “Clones” of federal language • Extensions: California, Alaska

17. Discrimination in Employment • Federal constitutional protection (usually public workers) under the “Equal protection” clause • Employment by government not a “fundamental right” (Murgia) • Equal protection: only “intentional” discrimination forbidden • Racial discrimination: “strict scrutiny” • Gender discrimination: “intermediate level of scrutiny” • Age: “rational basis” test

18. Discrimination (cont.) • Statutory bans • Title VII (1964 Civil Rights Act, as amended in 1991) • The Post-Civil War statutes • ADEA • ADA and the Rehabilitation Act • Equal Pay Act • Title IX of the Higher Education Amendments Act

19. Title VII • Theories of Discrimination and Burdens of Proof • Disparate treatment: individual cases • Plaintiff’s prima facie case: (a) protected status; (b) applied for job (or promotion, etc.); (c) qualified; (d) refused by employer; (e) job remained open. (Alternative: “smoking gun”) • Employer response: articulate “legitimate, nondiscriminatory” reason for its action • Plaintiff’s response: evidence that employer’s reason is a “pretext” • Ultimate burden of proof: on plaintiff • “Mixed motive” cases: Desert Palace (April 2003) suggests overlap with “pretext”; implications?

20. Title VII (cont.) • Disparate treatment: group cases • Usual enforcement tool: Class actions under Rule 23 or “pattern or practice” action by EEOC • Plaintiff’s proof usually statistical, based on null hypothesis that employer’s work force will “look like” either (a) community at large (jobs not requiring particular skills; or (b) actual or potential applicant pool (jobs requiring skill, licensure) • What is the relevant “community”? • What is a “significant” statistical disparity?

21. Title VII (cont.) • Disparate impact: The Griggs decision • Plaintiff’s likely proof: An employer “practice” (such as use of a test score cutoff) has the effect of screening out significantly more men than women, more African Americans than whites, or the like. • Employer’s likely response: Business need • Special treatment for “professionally developed tests” and “bona fide seniority programs”

22. Title VII (cont.) • Sexual harassment • “Quid pro quo” – near absolute liability • “Hostile environment” • Plaintiff must show conditions severe enough to “affect working conditions” • Employer may defend on basis of effective program to combat such conduct • Same sex harassment is a possible source of liability

23. Equal Pay Act • “Equal pay for equal work” – not “comparable worth” but very small differences in duties do not likely matter • Exceptions: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

24. Wage and Hour Regulation • Fair Labor Standards Act • Contract Labor Standards • Davis-Bacon (construction) • Walsh-Healey (goods) • Service Contract Labor Standards Act • Portal-to-Portal Act • Garnishment Restrictions • State laws (wage payment, minimum wage)

25. FLSA • Minimum wage standard • Current: $5.15 an hour • Overtime pay requirement • Current: 1 ½ the individual’s “regular rate” (not the minimum wage) for each hour over 40 in a work week • Recent controversy: Amending the “white collar” exemptions, and thus eliminating overtime pay requirement for a (hotly contested, but significant) number of workers

26. Pensions and Fringes • ERISA • Pensions (defined benefit, defined contribution, accrual, vesting, the “cash balance plan” controversy) • Welfare plans (preemption of state law problems) • Mandated benefits (FMLA, workers compensation, UI, etc.) • OASDI and FICA (Social Security)

27. Termination of Employment • The traditional “at will” doctrines • Breach of contract actions: the burden of proof and the interpretation rules • Tort actions • Judicial modifications • The “public policy” exception • Evidence of contract terms (and the “disclaimer” response) • Duty of Good Faith and Fair Dealing

28. Termination (cont.) • Statutory protections • Private sector • Anti-retaliation bans (including “whistleblower” laws) • General statutes: The “Model Act” and the Montana statute • Public sector (merit systems and teacher tenure laws)

29. Termination (cont.) • General problems • “Constructive termination” • “Good cause” • Using arbitration as a forum to determine whether a discharge was wrongful under an employment contract or a statute (Gilmer and its progeny)

30. Collective Rights • Common law hostility • Federal Statutes affecting the Private Sector • Railway Labor Act • Norris-LaGuardia Act • Wagner Act (NLRA) • Taft-Hartley Act (LMRA) • Landrum-Griffin Act

31. National Labor Relations Act • Section Seven: Statement of Collective Rights • Section Eight: Unfair Labor Practices • Section Nine: Selection of Representatives • Section Ten: Enforcement • Role of General Counsel as prosecutor • National Labor Relations Board as specialized court-like tribunal • Review by Circuit Courts of Appeal

32. Collective Rights (cont.) • Enforcement of collective agreements • The typical grievance-arbitration system • The “Duty of Fair Representation” owed by union to workers it represents • In negotiating • In grievance handling • Public Sector Statutes • Do public sector workers need a “right to strike”?