Chapter 42

Employment Law

 

Objectives:

1. Describe the major labor law statutes

2. Describe major laws prohibiting employment discrimination

3. Defenses to employment discrimination claims

4. Explain "at will" employment

5. Explain OSHA, Workers' Comp., Unemployment Comp., FLSA, Worker Adjustment and Retraining Notification Act, Family and Medical Leave Act

 

I. Labor Law (law governing union-management relationships) (latest figures, 13.8% union, back in 1950's, 35%)

          A. Norris-La Guardia Act (1932)

                   1. No federal injunctions in labor disputes

                   2. Freedom to form unions

          B. National Labor Relations Act (1935)

                   1. Right to union representation in negotiating terms

                   2. Banned unfair labor practices

                             a. Interfering with right to unionize

                             b. Refusing to bargain in good faith

                             c. Discriminating against union members

                             d. Dominating the union (having too much control over

                             union, e.g. having shareholders and boardmembers

                             control the union)

                             e. Discriminating against member who has filed complaint

          C. Labor Management Relations Act (1947) (a.k.a. Taft-Hartley Act)

                   1. Prohibits unfair union practices

                             a. Coercing an employee to join the union

                             (Note, closed shops allowed if state law allows)

                             (Union shop allows nonunion members who must join

                             After a certain amount of time)

                             (Right to work state means prohibits union shop k's)

                             b. Refusing to bargain in good faith

                             c. Causing an employer to discriminate against a

                             non union employee

                             d. Featherbedding (i.e. forcing payment for no work)

                             e. Picketing an employer to require recognition of an

                             uncertified union

                             f. Engaging in secondary activity (i.e. picketing

                             Company A, where there is no dispute, to put

                             pressure on Company B, where there is a dispute

                             g. Excessive dues

                   2. Reinstates availability of injunctions in labor disputes

                   If NLRB requests one to prevent an unfair labor practice

          D. Labor-Management Reporting and Disclosure Act

                   1. Grants a union bill of rights (right to nominate leaders,

                   Right to hearing, etc.)

                   2. Seeks to wipe out union corruption

 

II. Employment Discrimination Law

          A. Equal Pay Act

                   1. Prohibits gender discrimination        

                   2. Equal pay for equal work

          B. Civil Rights Act of 1964 (we're interested in Title VII)

                   1. No discrimination by race, color, gender, religion, nat'l origin

                   2. Pregnancy Discrimination Act (no disc., unless there is a

                   Bona fide occupational qualification (BFOQ))

                   3. EEOC (enforcement agency for Title VII)

                   4. Int'l Union v. Johnson Controls, (1991), p. 886

                   Facts: JCI had fetal protection policy.  Women were denied

                   Certain jobs because of risk of damage to reproductive health.

                   Men were not subject to these rules.

                   Holding: 1. JCI violated Title VII by creating disparate classes.

                   Plaintiff does not have to prove malice to prevail.

                   2. No BFOQ. Employer must show reproductive potential

                   Affect ability to perform on the job.  It is up to parents

                   To weigh the risk to the next generation.

          C. Proof of Discrimination (Desert Palace, p. 888, can be proved

                   Circumstantially)

                   1. Disparate treatment

                   2. Present effects of past discrimination

                   3. Disparate impact

          D. Defenses

                   1. Seniority system

                   2. Ability test

                   3. BFOQ

          E. Remedies

                   1. Injunctions, money

                   2. Affirmative action

          F. Reverse discrimination

                   1. Equal protection clause

                   2. U.S. government may use affirmative action more

                   aggressively than companies or state governments

          G. Sexual Harassment

                   1. Unwelcome advances, such as

                             a. Submission to advance is condition of employment

                             b. Affects employment decisions

                             c. Interferes with work performance, creates

                             hostile environment

                   2. Faragher v. City of Boca Raton, p 891

                             Facts: City operated beaches.  Employed 40-50

                   Lifeguards.  Only 4-6 were women.  Middle level managers

                   Did all kinds of offensive things with regard to women.

                   Employer did not know, no formal complaint made.

                             Holding: Employer liable even without knowledge.

                             Large employer must have policy and communicate

                             It to workers and managers.

                   Compare:  Exhaustion of remedies in administrative law.

          H. Comparable Worth

                   1. Women make less on average than men

                   2. Some studies try to compare traditional "female jobs" to

                   Traditional "male jobs"

          I. Age Discrimination Act of 1967

          J. Disability Law

                   1. Rehabilitation Act of 1973 (affirmative action for feds)

                   2. Americans with Disabilities Act

                             a. Equal access (ramps, elevators, etc.)

                             b. Toyota Motors, p. 895, (2002)

                             Facts: Toyota had a plant in Kentucky. Employee

                             Developed carpal tunnel syndrome. Dr. said she could

                             Only lift 20 lbs. max, 10 lbs. repetitively.

                             Toyota put her in jobs she could do, such as quality

                             control.  So far, so good.  However, Toyota decided

                             to rotate QC people through four different processes.

                             One required keeping hands and arms up around

                             Shoulders for several hours at a time.  She tried,

                             But could not do that.  All doctors agreed she should

                             Not do that. 

                             Plaintiff claims that Toyota stopped cooperating.

                             Toyota says she just stopped coming to work.

                             Toyota fires plaintiff.

                             Question: Was plaintiff "disabled" within meaning

                             Of statute?

                             Holding: No.  There must be long term impairment

                             Substantially limiting activities of central importance

                             To most people's lives.  Plaintiff's condition is not

                             That bad.

                             Looks like they're trying to limit to wheelchairs,

                             Blindness, etc.  ADA should not take over worker's comp.

 

III. Employee Protection

          A. At will employment (fire anytime for no reason)

                   1. Statutory limits

                             a. Certain employees protected from discrimination

                             b. Employees exercising certain rights protected

                             c. Certain employees can only be fired with cause

                   2. Judicial limits

                             a. Various theories based on quasi contract

                             b. Various tort theories

                             c. Public policy (i.e. refusing to violate a statute, etc.)

                             Hunger, p. 898.

                             Facts: Employee was a garbage man.  He believed company

                             Was improperly disposing of explosives. He called cops.

                             When they conducted sting, no explosives found.

                             Company then fired him.

                             Employee argued that public policy protected him,

                             Because he was trying to prevent great harm.

                             Holding: Because employee was wrong, and could not

                             Show what substantiated his allegation, company

                             Could fire him.

                   3. Article re: guy fired for drinking Coors instead of Bud

                   Compare recent decision by Michigan company to forbid

                   smoking.

          B. OSHA

                   1. Sets standards for health and safety

                   2. Provides remedies, both criminal and civil

          C. Employee Privacy

                   1. Drug and alcohol testing

                   2. Lie detector tests

          D. Workers' Comp

                   1. Safety net for injuries

          E. Social Security and Unemployment Insurance

          F. Worker Adjustment and Retraining Act (WARN)

                   1. Notice of closing plant required

          G. Family and Medical Leave Act of 1993

                   1. Time off for health problem or baby

 

Chapter 2, p. 26