Transcript BLT Essentials 7th Ed. 2005

Food for Thought of the Day
We can’t solve problems by using the
same kind of thinking we used when we
created them.
-Albert Einstein
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Welcome to
Introduction to Business BUS 002
Agenda
TOPIC: Employment Law
• Check-Ins: Questions, Comments, Reflections,
AhHa Moments
• FYI Article: “Lawsuit Claim: Students’ Lecture Notes
Infringe on Professor’s Copyright” source: Wired
• Employment Law
– Employment at Will
– Employee Rights
– Employment Discrimination
• Reflection
• Emancipate
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Learning Objectives
• What is the employment-at-will doctrine? When
and why are exceptions to this doctrine made?
• What federal statutes govern working hours and
wages?
• What federal act was enacted to protect the health
and safety of employees?
• Under the Family and Medical Leave Act of 1993,
under what circumstances may an employee take
family or medical leave?
• What are three defenses to claims of employment
discrimination?
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Terms
• At-will employment
• Title VII
• Discrimination
• Protected Class
• Worker’s Compensation
• OSHA
• Income Security
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Employment at Will
• Historically, employment law was
governed by the common law doctrine
of “employment at will” where either
employer or employee could terminate
the relationship at any time, for any
reason.
• Today employment law is heavily
regulated by state and federal statutes.
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Exceptions to the
Employment-at-Will Doctrine
• Contract Exceptions: An implied contract exists
between employer and employee. Oral agreements
may become part of the implied contract e.g., an
employment manual, a personnel bulletin, or
employer policies and procedures..
• Tort Exceptions: Wrongful discharge, emotional
distress, defamation may be actionable.
• Public Policy Exceptions: Many states prohibit an
employer from terminating an employee for refusing
to perform an illegal or unethical act
• Whistleblowing: prohibit employers from
terminating employees who report illegal or unethical
conduct to the authorities, the press, or their
superiors.
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Wage-Hour Laws
• Child Labor.
– FLSA prohibits oppressive child labor practices.
Provides regulations for work, depending on the age
of child.
– When you want to work while you are in school and
you are under age 16, what document do you need?
• Wages and Hours.
– Davis-Bacon Act (1931)– prevailing (current, exist
everywhere) wage act.
– Walsh-Healey Act (1936) -- minimum wages &
overtime.
– Fair Labor Standards Act (FLSA, 1938) -- an
extension of wage and hour regulation to workers in
interstate commerce.
• Overtime Exemptions. Professionals, Executives
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Worker Health and Safety
• The Occupational Safety and Health Act.
(OSHA, 1970).
– The fundamental (basic) federal law aimed
toward safety in the workplace.
– OSHA is a Federal Agency is a part of the
Department of Labor
– Other agencies National Institute for
Occupational Safety and Health (NIOSH), and
the Occupational Safety and Health Review
Commission (OSHRC).
– Procedures and Violations: Employers with 11
or more employees required to keep records.
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Worker Health and Safety
• State Workers’ Compensation Laws.
– These laws reduce employer liability to
employees for workplace injuries, and
provide a measure of assurance that workplace
injuries will be compensated
– Requires that injured employees make a claim
against the employer’s workers’ compensation
insurance policy, instead of suing the employer.
– Requires most employers to carry workers’
compensation insurance.
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Income Security
• Social Security.
– Government-assured supplemental income for
(1) retired persons, (2) their survivors, and (3) disabled
persons. Social Security is funded by (non-voluntary)
employer and employee “contributions.”
– Medicare: Government-administered health insurance
program for those eligible for social security.
• Private Pension Plans.
– Employee Retirement Income Security Act (ERISA,
1974) gives employee a vested right to receive pension
benefits at a future date when he or she stops working.
• Unemployment Insurance.
– Federal Unemployment Tax Act (FUTA, 1935)
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What do you think?
In groups of 3-4, answer the
following questions?
•
Lewis v. Director, Employment Security
Department (2004). See p. 556
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COBRA
• COBRA (Consolidated Omnibus Budget
Reconciliation Act, 1985)
– prohibits the discontinuance of insurance
benefits of workers who have voluntarily or
involuntarily been separated from work, unless
the involuntary separation was on the basis of
gross misconduct.
– Keep policy for eighteen months (regular),
keep policy for twenty-four (disabled)
– Not free, former employees must pay.
• Employers must comply if they have more than
20 employees.
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Family and Medical Leave
• FMLA (1993)
– requires employers with over 50 employees
to provide unpaid leave to employees who
need to care for a spouse, child, or parent
suffering with a serious medical condition.
– The employee cannot be terminated for
taking leave under the policy, and has the
right to restoration to the same or a similar
position upon return to work.
– Exception employees at the top 10% pay of
the organization, temporary employees, and
part-time employees
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Employee Privacy Rights
• Electronic Communications Privacy Act
(ECPA, 1986).
– Employer informs employees that surveillance will occur.
– Prohibits intentional interception of personal
communications.
– Permit employers to monitor employee electronic
communications in the course of business.
• Screening Procedures.
– Application question must have some reasonable
connection to the job sought.
• Other Types of Monitoring
– Lie Detector Tests. Prohibited, except under the ongoing
investigation exception.
– Drug Testing. Most government employees are subject to
testing and the rights of private employees vary from state to
state.
– AIDS Testing. Some state statutes restrict AIDS testing.
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Employment Discrimination:
Title VII Of The Civil Rights Act of
1964
• Title VII prohibits discrimination in
employment on the basis of:
– Race
– Gender (includes Sexual Harassment)
– Color
– Religion
– Age (ADEA, 1967)
– National origin.
– Sexual Orientation
– Disability (physical or mental impairment) (ADA, 1990)
– “Gender” now includes pregnancy.
– Called “The Protected Class”
• Enforcement of Title VII by EEOC (Equal Employment
Opportunity Commission).
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Intentional vs. Unintentional
Discrimination
• Intentional (“Disparate-Treatment”)
Discrimination. Must prove:
–
–
–
–
–
Is a member of a protected class
Applied, qualified, and rejected for job
Demoted or fired based upon protected class status
Constructive discharge
Employer continued to seek applicants not in the
protected class.
• Unintentional (“Disparate Impact”)
Discrimination.
– Practices or procedures which, although not
intentionally discriminatory, have the effect of
discriminating against members of a protected class.
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Employment Discrimination is…
• Employers classifying jobs as male or female
• Hiring, firing, demoting, or denying promotion
because a person is a member of the protected
class
• Mandatory retirement for management positions
due to age
• Policies that exclude or disregard the culture based
upon protected class status
• Pay differentials for jobs with the same or similar
jobs can be justified on the basis of seniority,
merit, a piece-work system, or any factor other
than gender. (EPA, 1963)
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Employment Discrimination is…
• The duty of reasonable accommodation ends at the
point at where it becomes an undue hardship.
• Quid Pro Quo – Granting job benefits for sexual
favors
• Constructive Discharge – Making the employee’s
working conditions so intolerable that the
employee reasonably feels compelled to leave
– Conway-Jepsen v. Small Business Administration
(2004). P. 569
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Employment Discrimination
not yet Illegal
• Employment discrimination not yet illegal
– Workplace Incivility
– Workplace Bullying
– Workplace Mobbing
– Workplace Psychological Harassment
– Workplace Aggression
• Why? Same behaviors, not a member of the
protected class
• Legislation called “Healthy Workplace Bill” proposed in
12 states
• California was the first to have bill introduced in 2003
• Bill died in committee – Currently, lobbying taking
place
• See Healthy Workplace Bill AB 1582
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What is a
Hostile Work Environment?
• Hostile work environment occurs when the
workplace is “permeated” (all over) with
discrimination: intimidation, ridicule, insults so
severe to alter the conditions of the victim’s
employment.
• The conduct in the workplace must be
offensive to a reasonable person as well as to
the victim, and it must be severe and
pervasive.
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Employers liable
for Discrimination
• Employer generally liable only if employer knew or
should have known and failed to take action.
– Employee informed the supervisor
– Employee informing the supervisor is considered informing the
Employer under agency law.
• Employer Prevention
– Policies, trainings with all employees on discrimination
– Recognize and remedy complaints immediately and justly
– Make accommodations where appropriate (wheelchair access)
• What are the remedies for employees (plaintiffs) under
the law?
– Reinstatement.
– Back Pay.
– Retroactive Promotions; and
– Damages.
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Defenses to Employment
of Discrimination
• There are four basic types of defenses to
employment discrimination claims.
– Business necessity. (Related to job performance,
ex. Law degree required)
– Bona fide occupational qualification. (Necessary to
do the job, ex. Men’s swimwear company can only
hire male models)
– Seniority Systems.
– After-acquired evidence of employee misconduct.
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What do you think?
View the video: Employment Law – Age Discrimination
In groups of 3-4, answer and discuss the following questions:
• Any more recent employment history, Jake? Eliot has been
out of business for twenty-five years. Is this a reasonable
question?
• Well, suppose he can't see too well, either. Does the law
still say I have to hire him? What is the answer to this
question?
• When can an employer, during an interview with a
prospective employee, discuss or take into account the
applicant's age?
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Reflection
• How might today’s content impact my
practice in business?
• What implications might today’s content
have on the local, state, national, and
global communities?
• What have I learned about law and
business that will influence my practice?
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