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 workers 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
• Plaintiffs 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
• Plaintiffs response evidence that employers
  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
• Plaintiffs proof usually statistical, based on
  null hypothesis that employers 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
• Plaintiffs 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.
• Employers 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 individuals 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?