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History of Employment Law
• In pre-industrial society, most people
followed their parents’ occupations.
• Employers knew their workers and
expectations were understood.
• With the industrial revolution came changes
in employment law too, and a trend toward
employment contracts.
– Without a contract, a worker was an employee at
will.
– An employee at will can be fired for a good
reason, a bad reason or no reason at all.
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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
– Requires employers to “bargain in good
faith” with unions.
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Family and Medical Leave Act
(FMLA)
• In 1993, Congress passed the Family
and Medical Leave Act (FMLA), which
guarantees both men and women up to
12 weeks of unpaid leave each year for
childbirth, adoption, or medical
emergencies for themselves or a family
member.
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COBRA
• The Consolidated Omnibus Budget
Reconciliation Act (COBRA) provides that
former employees of companies with 20 or
more employees must be allowed to
continue their health insurance for 18
months after leaving their job.
• The catch is that employees must pay for it
themselves, up to 102 percent of the cost.
(The extra 2 percent covers administrative
expenses.)
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Wrongful Discharge
• Wrongful discharge prohibits an employer
from firing a worker for a bad reason.
• 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)
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Whistleblowers
• Employees who disclose illegal behavior of their
employers.
• The False Claims Act protects those who refuse to
sign inaccurate reports.
• The Civil Service Reform Act and the
Whistleblower Protection Act protect Federal
employees who report wrongdoings.
• The Sarbanes-Oxley Act of 2002 protects
employees of publicly traded companies who
provide evidence of fraud to investigators.
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Other Protection for Whistleblowers
• State Statutes protect whistleblowers from
retaliation from employers in all fifty states.
Degree of protection varies.
• Common law typically prohibits the
discharge of employees who report illegal
activity that relates to their own jobs.
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Contract Law
• Truth in Hiring
– Oral promises made during the hiring process
can be enforceable.
– Employers may be liable for promises that
they cannot keep or for failure to disclose
important information in the hiring process.
• An employee handbook creates a
contract.
• Covenant of Good Faith & Fair Dealing
– In some cases, courts will imply a covenant of
good faith and fair dealing in an at-will
employment contract.
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Defamation
• Employers may be liable for defamation when
they give false and unfavorable references about
a former employee.
• More than half of the states recognize a qualified
privilege (protection unless the statement is
known false or given in ill will) for former
employers who give references.
• Employers are generally not required to give any
information about former employees, but may
sometimes be held liable if potentially dangerous
information is withheld.
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Intentional Infliction of
Emotional Distress
• Employers who condone cruel
treatment of their workers face liability
under the tort of intentional infliction
of emotional distress.
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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.”
– Requires records of all injuries and accidents.
– Allows inspection of workplaces and fines for
unsafe conditions.
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Employee Privacy
• In many places, off-duty conduct
cannot be regulated by the employer.
• Alcohol and drug testing is allowed by
private businesses; government
employers 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.
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Electronic Monitoring of the
Workplace
• The Electronic Communications Privacy
Act of 1986 (ECPA) permits employers to
monitor workers’ telephone calls, e-mail
messages, and even “instant 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.
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Financial Protection
• Fair Labor Standards
– Passed in 1938, the Fair Labor Standards
Act (FLSA) regulates wages (minimum
wage and overtime pay) and limits child
labor.
• Workers’ Compensation
– Workers’ compensation statutes ensure
that employees receive payment for
injuries incurred at work.
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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.
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Employment Discrimination
• Under the Equal Pay Act of 1963, an
employee may not be paid a lesser rate
(for equal work) than opposite sex
employees.
• Title VII of the Civil Rights Act of 1964
– Prohibits employers from discriminating on the basis of
sex, race, color, religion, or national origin.
– Employers must make reasonable accommodation for a
worker’s religious beliefs unless the request would
cause undue hardship.
– Affirmative action is not required by Title VII, nor is it
prohibited.
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Proof of Discrimination
• There are two ways a plaintiff can prove a
charge of discrimination:
– Disparate Treatment: The plaintiff must show
evidence that the defendant discriminated based on
a protected trait; then the defendant must present
evidence that the protected trait was not the reason
for the disparate treatment.
– Disparate Impact: The plaintiff must show evidence
that the policy has a greater impact on a protected
group than a non-protected group; the defendant
must show that the policy is needed for the job.
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Defenses to Charges of
Discrimination
• There are three possible defenses for a
charge of discrimination:
– Merit
– Seniority
– Bona Fide Occupational Qualification
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Sexual Harassment
• Involves unwelcome sexual advances,
requests for sexual favors, and verbal or
physical conduct of a sexual nature.
• 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.
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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.
• Forced retirement at a certain age is
prohibited except for police and toplevel corporate executives.
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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.
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