Transcript Labor and Employment Law

Labor and Employment Law
An overview
Authoritative sources of law in the
US
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Federalism: Two systems, both operating
directly on individuals
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Supremacy clause
Xth Amendment
Federal and State Constitutions
Statutes
Agency regulations
Court decisions
Some of the roles played by courts
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Restraining legislators and executives by
judicial review under the constitutions
Interpreting statutes and regulations
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Policing agency fidelity to statutes
Developing and applying “common law”
doctrines
Some common law categories
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Tort
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Physical injury
Infliction of mental distress
Harm to reputation
Invasion of privacy
Contract
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What promises should we enforce?
What is a “breach”?
Physical Safety
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Preventing injury and disease
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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)
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Physical Safety (cont.)
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Compensating for injury and death
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Actions for damages
Traditional tort principles
 FELA
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Workers Compensation
Disability Benefits under Social Security
Vocational Rehabilitation Programs
Private insurance
OSHA
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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]”
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OSHA (cont)
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Enforcement:
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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
Workers compensation
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Contrast with tort recovery:
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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:
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Medical treatment
Partial wage loss, sometimes based on injury severity,
sometimes on actual wage loss
Death benefits for dependents
Privacy and Reputation
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Tort law principles
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Defamation
Right of privacy
Intentional infliction of mental distress (the
“outrageous conduct” tort)
Defamation
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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.
Common law Right of Privacy
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Appropriation
Placing a person in a “false light”
Public disclosure of private facts
Unreasonable intrusion
Intentional infliction of Mental
Distress
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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
Privacy and Reputation (cont.)
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Federal statutes
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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)
Privacy and Reputation (cont.)
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State statutes
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Acts going beyond federal protections: credit
reporting, telephone interception
Medical records
Confidentiality and accuracy of employment
records (E.g., Illinois record correction
statute)
Privacy and Reputation (cont.)
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Federal constitutional protections (I, IV, V,
XIV)
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The public-private sector distinctions
Public employees
 Private sector employees, government intrusion
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State constitutional protections
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“Clones” of federal language
Extensions: California, Alaska
Discrimination in Employment
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Federal constitutional protection (usually public
workers) under the “Equal protection” clause
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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
Discrimination (cont.)
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Statutory bans
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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
Title VII
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Theories of Discrimination and Burdens of Proof
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Disparate treatment: individual cases
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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?
Title VII (cont.)
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Disparate treatment: group cases
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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)
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What is the relevant “community”?
What is a “significant” statistical disparity?
Title VII (cont.)
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Disparate impact: The Griggs decision
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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
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Special treatment for “professionally developed
tests” and “bona fide seniority programs”
Title VII (cont.)
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Sexual harassment
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“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
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Same sex harassment is a possible source of
liability
Equal Pay Act
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“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.”
Wage and Hour Regulation
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Fair Labor Standards Act
Contract Labor Standards
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Davis-Bacon (construction)
Walsh-Healey (goods)
Service Contract Labor Standards Act
Portal-to-Portal Act
Garnishment Restrictions
State laws (wage payment, minimum wage)
FLSA
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Minimum wage standard
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Overtime pay requirement
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Current: $5.15 an hour
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
Pensions and Fringes
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ERISA
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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)
Termination of Employment
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The traditional “at will” doctrines
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Breach of contract actions: the burden of proof and
the interpretation rules
Tort actions
Judicial modifications
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The “public policy” exception
Evidence of contract terms (and the “disclaimer”
response)
Duty of Good Faith and Fair Dealing
Termination (cont.)
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Statutory protections
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Private sector
Anti-retaliation bans (including “whistleblower”
laws)
 General statutes: The “Model Act” and the
Montana statute
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Public sector (merit systems and teacher
tenure laws)
Termination (cont.)
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General problems
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“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)
Collective Rights
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Common law hostility
Federal Statutes affecting the Private
Sector
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Railway Labor Act
Norris-LaGuardia Act
Wagner Act (NLRA)
Taft-Hartley Act (LMRA)
Landrum-Griffin Act
National Labor Relations Act
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Section
Section
Section
Section
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Seven: Statement of Collective Rights
Eight: Unfair Labor Practices
Nine: Selection of Representatives
Ten: Enforcement
Role of General Counsel as prosecutor
National Labor Relations Board as specialized courtlike tribunal
Review by Circuit Courts of Appeal
Collective Rights (cont.)
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Enforcement of collective agreements
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The “Duty of Fair Representation” owed by
union to workers it represents
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The typical grievance-arbitration system
In negotiating
In grievance handling
Public Sector Statutes
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Do public sector workers need a “right to
strike”?