introduction to employment law 101

Deirdre J. Kamber, EsquireCertified HIPAA Professional

Fitzpatrick Lentz & Bubba4001 Schoolhouse LaneCenter Valley, PA 18034

610.797.9000 ext. 383Dkamber@FLBlaw.com

Employment Law: Employment Law: At-Will EmploymentAt-Will Employment

The Joys of Employment…The Joys of Employment…

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So Why Are We Here So Why Are We Here Today?Today?

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Introduction of the classWe are going to discuss the theory behind employment

law, as well as the structure of the lawWhat is “employment law?”Structure of the LawTrials and tribulations….What is At-Will employment?

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What is “Employment What is “Employment Law?”Law?”

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Most people have a job of some kind. As such, we all know something about hiring, day to day work duties, and ultimately, termination or resignation.

So what IS “Employment Law”?

Employment law is a field of law which encompasses any and all federal, Employment law is a field of law which encompasses any and all federal, state or local laws, statutes, ordinances, or common law doctrines which state or local laws, statutes, ordinances, or common law doctrines which

impact the workplace.impact the workplace.

What is “Employment Law?”

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TERMINATIONEMPLOYMENTHIRING

THE WORKPLACE

Title VII Americans with Disabilities Act

Age Discrimination in Employment Act Health Insurance Portability and Accountability Act

PA Human Relations Act

PA Labor Relations Act National Labor Relations Act Invasion of Privacy

Defamation

PA Human Relations Act

Retaliation

Fair Labor Standards Act

Family and Medical Leave Act PA Personnel Files Act

Workers Compensation Act Unemployment Compensation Act

Equal Pay Act

Uniformed Services Employment and Reemployment Rights Act

1st Amendment

PA Wage and Hour Law

Employee Retirement Income Security Act

Occupational Safety & Health Act Contracts Worker Adjustment & Retraining Notification Act

IF HAVING A JOB IS SO SIMPLE, WHY

ARE THERE SO MANY LAWS?

Why So Many Laws?Why So Many Laws?

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Employment law has historically been driven by issues, not by legislation.

1. Discrimination. As a society, we have discriminated against certain types of people in the workplace, paid certain people less than they should make, or denied certain people benefits, so fairness and equality are significant.

2. Wages and Benefits. Everyone needs money, and most need to work for it.

3. Privacy and Workplace Information Access. We spend as much time at work as at home, so we want to work in a relatively “safe” atmosphere, especially where our personal information may be at stake. Employers, likewise, need to protect their information and workplace. So, it is a balance of keeping some information private, and being required to disclose on the other.

4. Because for every perspective, there is an opposite perspective.

DiscriminaDiscriminationtion

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Employment opens up

for women post-World Wars I & II

Civil Rights movement flourishes

(development of legal protections based on sex,

age, race, ethnicity, religion)

1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000

New Deal opens up chances for

everyone, including minorities

Legislation develops

discrimination protections re: disabilities &

health insurance (ADA & HIPAA)

Wages and Wages and BenefitsBenefits

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1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000

Fair pay, minimum wage, overtime & child labor laws enacted (FLSA)

The New Deal is born and laws regarding

unions develop (NLRA)

Retirement and benefits gains

legal recognition

(ERISA)

Continued health insurance

coverage is protected by law

(HIPAA & COBRA)

Social Security is created Notion

of global market is born

Information Information Access Access

1975 1985 1995 2005

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HIPAA – protecting

health information

PA Personnel Files Act created

ADA born – no more asking for medical records

Birth of the Internet

“Spyware” becomes

commercially available

PA Wiretap and Surveillance Act

enacted

Done a Little Done a Little Differently?Differently?

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WAGES & BENEFITSEMPLOYMENTDISCRIMINATIONHIRING INFORMATION ACCESSTERMINATION

Title VII Americans with Disabilities Act

Age Discrimination in Employment Act Health Insurance Portability and Accountability Act

PA Human Relations Act

PA Labor Relations Act National Labor Relations Act Invasion of Privacy

Defamation

PA Human Relations Act

Retaliation

Fair Labor Standards Act

Family and Medical Leave Act PA Personnel Files Act

Workers Compensation Act Unemployment Compensation Act

Equal Pay Act

Uniformed Services Employment and Reemployment Rights Act

1st Amendment

PA Wage and Hour Law

Employee Retirement Income Security Act

Occupational Safety & Health Act Contracts Worker Adjustment & Retraining Notification Act

THE WORKPLACE

Done a Little Done a Little Differently?Differently?

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Title VIIInvasion of PrivacyUnemployment Compensation ActEmployee Retirement Income Security Act Equal Pay ActAmericans with Disabilities ActPA Personnel Files ActOccupational Safety & Health Act Contracts Uniformed Services Employment and

Reemployment Rights Act

Worker Adjustment and Retraining Notification Act Health Insurance Portability

and Accountability Act

Workers Compensation ActNational Labor Relations Act1st AmendmentDefamationFamily and Medical Leave ActPA Labor Relations ActPA Human Relations ActFair Labor Standards ActAge Discrimination in Employment

PA Wage and Hour LawRetaliation

WAGES & BENEFITSDISCRIMINATION INFORMATION ACCESS

THE WORKPLACE

Now These Laws Have a Now These Laws Have a ContextContext

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Under the headings of:Discrimination,Wages and Benefits, and Personal Security and Information Access,

We now have a framework for examining employment law in each of its primary facets.

What Have We Covered?What Have We Covered?

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Employment is pretty simple, but employment law is complicated.

There are a lot of laws because they have emerged from socio-economic concerns in the workplace, including: Discrimination, Fair wages and benefits, and Workplace privacy and access to information

Under each of these headings, we can explore many, if not most, employment law doctrines.

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Section II: Organization Section II: Organization of a Lawof a Law

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What is a law?

Laws are RULES, codified by legislature.Laws are made:

FederallyOn a state levelLocally Common Law

Laws may be civil or criminalWorkplace Policies are NOT laws

Federal and State Federal and State LawsLaws

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What is the difference between federal and state laws?Supremacy – a federal law will trump any conflicting state

laws (but there might be a parallel, or even stricter, state law);

Control – a federal law can bar the creation of a state law;Procedure vs. Substance – a federal law may be substantive,

but the procedure will still be state-based.

Our ExampleOur Example

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Joe “Internet Stalker” Blough approaches Little Miss Muffet, a 17 year old, via the Internet from his job at the Wonka Factory. Blough had been collecting kiddie porn at work and decided to act out his feelings.

Miss Muffet was home from school, and was on a high school chat room, “Kids and Tuffets,” when she got an instant message (IM) from Blough. The IM was pornographic and offered to meet Miss Muffet at the Lehigh Valley Mall. Miss Muffet agreed to meet Blough at the Haagen-Dazs store.

Federal and State Federal and State LawsLaws

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Blough flew from Long Island, New York, to meet his victim. He arrived at LVIA, and took the first taxi to the mall.

Blough didn’t know it, but Miss Muffet’s mom, Trudy, was monitoring her daughter on the Internet. Trudy saw Blough’s IM’s and called the police. They arrested Blough.

What can be done to Blough via legal proceeding?

Federal LawsFederal Laws

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The Interstate Stalking Punishment and Prevention Act of 1996. 18 USC §2261. This made it a Federal crime to cross a State line with the intent to injure or harass another person;

The US Communications Decency Act of 1996. 47 USCS § 223. CDA protects children from pornography on the Internet: (a) Prohibited acts generally. Whoever …   (1) in interstate or foreign communications…      (A) by means of a telecommunications device knowingly… (i) makes, creates, or solicits, and  (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person;”

The Protection of Children from Sexual Predators Act of 1998 – 18 USCS §2252: “(a) Any person who…   (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if… the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; …”

State LawsState Laws

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State Laws (for example):

Criminal solicitation to commit a crime in Pennsylvania;Unlawful contact or communication and corrupting minors

in Pennsylvania; andMegan’s Law;Criminal solicitation for involuntary deviate sexual

intercourse in Pennsylvania.

Local Ordinances: Local Ordinances: Lehigh Co.Lehigh Co.

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Sexual Offenders and Sexual Predators Residency Prohibition? (Section 750 of the Code)

No, it doesn’t apply. But it could, if Blough tried to move into Lehigh County.

Common Law Common Law DoctrinesDoctrines

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These exist solely through doctrines that have been handed down, developed and enunciated by courts. It builds off of precedent cases. We have turned most “common laws” into legislative laws now, however, certain common law doctrines would still apply to our scenario:How do we define a predator who is a “repeat offender?” (Has

Blough done this before?)When does a minor celebrate his or her birthday? (Miss Muffet is

seventeen – at eighteen she has powers of consent.

Workplace Policies?Workplace Policies?

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We already know that workplace policies AREN’T laws, so the answer is “no,” right?

Not necessarily! If an employer has a policy that it monitors the computers of its employees (remember, Blough was at work at the Wonka Factory when he did this), then the EMPLOYER could be sued by the Muffets if it SHOULD HAVE KNOWN that Blough was a danger.

Differences? Differences?

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The federal laws mandate “interstate commerce” or “interstate travel.” This is typical as the federal government does not have automatic jurisdiction, that is, control over an individual or organization, without state-to-state contact. Because Blough traveled from New York to Pennsylvania, spent money, and crossed state lines, federal laws would apply.

State law will apply if any of the significant acts (it doesn’t have to be ALL of them) took place in that state. There can be, however, more than one state who has jurisdiction, like New York and Pennsylvania, in our case.

Similarities?Similarities?

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Many of these laws appear similar, and that’s fine, so long as the state has no laws that are more lenient than federal law.

These are all CRIMINAL LAWS – could there also be civil laws that apply?

Yes, there could. Think O.J. Simpson – not guilty in his criminal trial; guilty in civil trial.

In a case like this, moreover, if Blough were deemed to be a danger to the community, he could be put in prison for a determined number of years, but he could be put in an institution until he is deemed to be “safe.”

The Differences Between The Differences Between Federal and State Employment Federal and State Employment LawsLaws

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What court?What agency?Is it still illegal?Where does the plaintiff go?What remedy is available?

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At-Will Employment and At-Will Employment and DiscriminationDiscrimination

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We are, first and foremost, an at-will employment country. What is “AT-WILL” employment?

At-will employment is a creation of American law that defines an employment relationship in which either party can terminate the relationship with no liability if there was no express contract for a definite term governing the employment relationship. Under this legal doctrine:

any hiring is presumed to be "at will"; that is, the employer is free to discharge individuals "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work.

At-Will Employment and At-Will Employment and DiscriminationDiscrimination

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Some courts saw the rule as requiring the employee to prove an express contract for a definite term in order to maintain an action based on termination of the employment.

Thus was born the U.S. at-will employment rule, which allowed discharge for no reason.

This rule was adopted by all U.S. states.

At-Will Employment and At-Will Employment and DiscriminationDiscrimination

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It was not until 1964 that the first judicial exception to the at-will rule was created.

Since then, several common law and statutory exceptions to at-will employment have been created.

However, in the majority of cases, the at-will relationship remains asymmetrical and in favor of the employer, with the burden of proof on the discharged employee.

At-Will Employment and At-Will Employment and DiscriminationDiscrimination

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The Societal Effects:

Although at-will employment allows an employee to quit for no reason, the rule that either party can terminate the relationship is most often invoked when an employer wants to fire an employee at any time.

Since this practice virtually eliminates job security, it can create an atmosphere of fear that may contribute to workplace bullying or nepotism.

However, there are limitations upon the employer's ability to terminate without reason.

At-Will Employment and At-Will Employment and DiscriminationDiscrimination

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Several exceptions to the doctrine exist.Public policy exceptionsImplied contract exceptionsImplied-in-law contract exceptionsStatutory exceptions

At-Will Employment and Public At-Will Employment and Public Policy ExceptionsPolicy Exceptions

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Forty-three U.S. states recognize public policy as an exception to the at-will rule. Under the public policy exception, an employer may not fire an employee if it would violate the state's public policy or a state or federal statute.

Usually this is more of a “moral” interpretation than a legal one. HOWEVER, the public policy violated must be:

“FUNDAMENTAL AND WELL DEFINED”

HypotheticalHypothetical

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Mary Kate Olsen works as part of the cleanup crew at the Ground Zero site in New York City. She complains to the newspapers that she has airborne sickness in her lungs, due to the lack of safety precautions taken by the City of New York during 9/11. The City fires her.

Is there a public policy which should allow her to fight the termination?

At-Will Employment and At-Will Employment and Contract ExceptionsContract Exceptions

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Where an employee or a group of employees (a.k.a. a union) bargain for a contract with an employer, both parties are bound to the agreements they made.All states recognize express contracts in employment,

and such terms will usually be given great deference by a court.

If the employer fires the employee in violation of an employment contract, the employer may be found liable for breach of contract.

At-Will Employment and At-Will Employment and Implied Contract ExceptionsImplied Contract Exceptions

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Thirty-eight U.S. states also recognize an implied contract as an exception to at-will employment.

Under the implied contract exception, an employer may not fire an employee:

When an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists.

At-Will Employment and At-Will Employment and Implied Contract ExceptionsImplied Contract Exceptions

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Proving the terms of an implied contract is often difficult, and the burden of proof is on the fired employee.

Implied employment contracts are most often found when an employer's personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a process for firing.

If the employer fires the employee in violation of an implied employment contract, the employer may be found liable for breach of contract.

HypotheticalHypothetical

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Sherry works as an accountant in Pittsburgh for the firm Hardan Abrasive, but she isn’t happy there. Through a friend, she negotiates a new job at the accounting firm of Dewey Cheatum & Howe (“DCH”) in Bethlehem.

Sherry and Mr. Cheatum discuss her move from Pittsburgh to Bethlehem, and Mr. Cheatum tells Sherry that the firm will pay her moving expenses, as well as a salary of $70,000, plus benefits, starting June 1st. Sherry orally agrees to take the job, and she moves her family to Bethlehem.

She shows up at DCH on June 1st to start work. She is confronted by Dewey who tells her that they decided not to hire her…didn’t anyone tell her?

What can Sherry do? Well, she has a contract.

At-Will Employment and At-Will Employment and Statutory ExceptionsStatutory Exceptions

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Statutory exceptions are most comprised of anti-discrimination laws

Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status.

There are also some other limitations and requirements under federal and state laws: Mass lay-offs, Union issues,Whistleblower lawsNon-retaliation laws