Labor and Employment Labor and Employment LawLaw

An overviewAn overview

Authoritative sources of law in Authoritative sources of law in the USthe US

Federalism: Two systems, both Federalism: Two systems, both operating directly on individualsoperating directly on individuals Supremacy clauseSupremacy clause Xth AmendmentXth Amendment

Federal and State ConstitutionsFederal and State Constitutions StatutesStatutes Agency regulationsAgency regulations Court decisionsCourt decisions

Some of the roles played by Some of the roles played by courtscourts

Restraining legislators and Restraining legislators and executives by judicial review under executives by judicial review under the constitutionsthe constitutions

Interpreting statutes and regulationsInterpreting statutes and regulations Policing agency fidelity to statutesPolicing agency fidelity to statutes

Developing and applying “common Developing and applying “common law” doctrineslaw” doctrines

Some common law Some common law categoriescategories

TortTort Physical injury Physical injury Infliction of mental distressInfliction of mental distress Harm to reputationHarm to reputation Invasion of privacyInvasion of privacy

ContractContract What promises should we enforce?What promises should we enforce? What is a “breach”?What is a “breach”?

Physical SafetyPhysical Safety

Preventing injury and diseasePreventing injury and disease OSHA (1970)OSHA (1970) State worker safety laws (section 18 laws)State worker safety laws (section 18 laws) Specialized safety statutesSpecialized safety statutes

Mine workersMine workers Transportation employeesTransportation employees Nuclear workersNuclear workers Laws protecting the general public (FIFRA, etc)Laws protecting the general public (FIFRA, etc)

Physical Safety (cont.)Physical Safety (cont.)

Compensating for injury and deathCompensating for injury and death Actions for damages Actions for damages

Traditional tort principlesTraditional tort principles FELAFELA

Workers CompensationWorkers Compensation Disability Benefits under Social SecurityDisability Benefits under Social Security Vocational Rehabilitation ProgramsVocational Rehabilitation Programs Private insurancePrivate insurance

OSHAOSHA

Two principal duties:Two principal duties: General duty clause: “. . . furnish . . . General duty clause: “. . . furnish . . .

employment and a place of employment and a place of employment . . . free from recognized employment . . . free from recognized hazards . . Likely to cause death or hazards . . Likely to cause death or serious physical harm . . . .”serious physical harm . . . .”

Standards: “shall comply with Standards: “shall comply with occupational safety and health occupational safety and health standards promulgated under this [Act]”standards promulgated under this [Act]”

OSHA (cont)OSHA (cont)

Enforcement:Enforcement: Inspections (no advance notice; warrant Inspections (no advance notice; warrant

may be required, but only “administrative may be required, but only “administrative probable cause” needed to get one)probable cause” needed to get one)

Proposed penalties usually include (a) civil Proposed penalties usually include (a) civil penalty; (b) abatementpenalty; (b) abatement

Review by OSHRCReview by OSHRC Further review by US Circuit Court of Further review by US Circuit Court of

AppealsAppeals

Workers compensationWorkers compensation

Contrast with tort recovery:Contrast with tort recovery: In tort, injured worker must prove employer In tort, injured worker must prove employer

fault (usually “negligence”); in worker’s fault (usually “negligence”); in worker’s compensation, most fault is not relevant, only compensation, most fault is not relevant, only connection between injury and employmentconnection between injury and employment

In tort, damages are determined on basis of In tort, damages are determined on basis of individual economic and non-economic loss; in individual economic and non-economic loss; in workers compensation, recovery is limited:workers compensation, recovery is limited:

Medical treatmentMedical treatment Partial wage loss, sometimes based on injury Partial wage loss, sometimes based on injury

severity, sometimes on actual wage lossseverity, sometimes on actual wage loss Death benefits for dependentsDeath benefits for dependents

Privacy and ReputationPrivacy and Reputation

Tort law principlesTort law principles DefamationDefamation Right of privacyRight of privacy Intentional infliction of mental distress Intentional infliction of mental distress

(the “outrageous conduct” tort)(the “outrageous conduct” tort)

DefamationDefamation

Defamation: A (a) false statement (b) Defamation: A (a) false statement (b) published to one or more persons (c) published to one or more persons (c) about another person that is (c) about another person that is (c) defamatory in nature, made (d) without defamatory in nature, made (d) without privilege, under circumstances such that privilege, under circumstances such that the publisher is (e) at fault. the publisher is (e) at fault.

Common law Right of Common law Right of PrivacyPrivacy

AppropriationAppropriation Placing a person in a “false light” Placing a person in a “false light” Public disclosure of private factsPublic disclosure of private facts Unreasonable intrusionUnreasonable intrusion

Intentional infliction of Mental Intentional infliction of Mental DistressDistress

Caused by conduct that “goes Caused by conduct that “goes beyond the bounds of decency” beyond the bounds of decency” (unfounded accusations of crime; (unfounded accusations of crime; threats)threats)

Many courts search for objective Many courts search for objective evidence of harm, such as inability to evidence of harm, such as inability to workwork

Privacy and Reputation Privacy and Reputation (cont.)(cont.)

Federal statutesFederal statutes FOIA and the Privacy Act of 1974FOIA and the Privacy Act of 1974 Fair Credit Reporting ActFair Credit Reporting Act OCCSSA and ECPA (“interception” as OCCSSA and ECPA (“interception” as

key)key) Employee Polygraph Protection ActEmployee Polygraph Protection Act Drug-Free Workplace ActDrug-Free Workplace Act Americans with Disabilities ActAmericans with Disabilities Act HIPPA (medical records) HIPPA (medical records)

Privacy and Reputation Privacy and Reputation (cont.)(cont.)

State statutesState statutes Acts going beyond federal protections: Acts going beyond federal protections:

credit reporting, telephone interceptioncredit reporting, telephone interception Medical recordsMedical records Confidentiality and accuracy of Confidentiality and accuracy of

employment records (E.g., Illinois employment records (E.g., Illinois record correction statute)record correction statute)

Privacy and Reputation Privacy and Reputation (cont.)(cont.)

Federal constitutional protections (I, IV, Federal constitutional protections (I, IV, V, XIV)V, XIV) The public-private sector distinctionsThe public-private sector distinctions

Public employeesPublic employees Private sector employees, government Private sector employees, government

intrusion intrusion

State constitutional protectionsState constitutional protections ““Clones” of federal languageClones” of federal language Extensions: California, Alaska Extensions: California, Alaska

Discrimination in Discrimination in EmploymentEmployment

Federal constitutional protection (usually public Federal constitutional protection (usually public workers) under the “Equal protection” clauseworkers) under the “Equal protection” clause Employment by government not a “fundamental Employment by government not a “fundamental

right” (right” (Murgia)Murgia) Equal protection: only “intentional” discrimination Equal protection: only “intentional” discrimination

forbidden forbidden Racial discrimination: “strict scrutiny”Racial discrimination: “strict scrutiny” Gender discrimination: “intermediate level of Gender discrimination: “intermediate level of

scrutiny” scrutiny” Age: “rational basis” testAge: “rational basis” test

Discrimination (cont.)Discrimination (cont.)

Statutory bansStatutory bans Title VII (1964 Civil Rights Act, as amended in Title VII (1964 Civil Rights Act, as amended in

1991) 1991) The Post-Civil War statutesThe Post-Civil War statutes ADEAADEA ADA and the Rehabilitation ActADA and the Rehabilitation Act Equal Pay ActEqual Pay Act Title IX of the Higher Education Amendments Title IX of the Higher Education Amendments

ActAct

Title VIITitle VII

Theories of Discrimination and Burdens of Theories of Discrimination and Burdens of ProofProof Disparate treatment: individual casesDisparate treatment: individual cases

Plaintiff’s prima facie case: (a) protected status; (b) Plaintiff’s prima facie case: (a) protected status; (b) applied for job (or promotion, etc.); (c) qualified; (d) applied for job (or promotion, etc.); (c) qualified; (d) refused by employer; (e) job remained open. refused by employer; (e) job remained open. (Alternative: “smoking gun”)(Alternative: “smoking gun”)

Employer response: articulate “legitimate, Employer response: articulate “legitimate, nondiscriminatory” reason for its actionnondiscriminatory” reason for its action

Plaintiff’s response: evidence that employer’s reason Plaintiff’s response: evidence that employer’s reason is a “pretext”is a “pretext”

Ultimate burden of proof: on plaintiffUltimate burden of proof: on plaintiff ““Mixed motive” cases: Mixed motive” cases: Desert PalaceDesert Palace (April 2003) (April 2003)

suggests overlap with “pretext”; implications? suggests overlap with “pretext”; implications?

Title VII (cont.)Title VII (cont.)

Disparate treatment: group casesDisparate treatment: group cases Usual enforcement tool: Class actions under Usual enforcement tool: Class actions under

Rule 23 or “pattern or practice” action by EEOCRule 23 or “pattern or practice” action by EEOC Plaintiff’s proof usually statistical, based on null Plaintiff’s proof usually statistical, based on null

hypothesis that employer’s work force will “look hypothesis that employer’s work force will “look like” either (a) community at large (jobs not like” either (a) community at large (jobs not requiring particular skills; or (b) actual or requiring particular skills; or (b) actual or potential applicant pool (jobs requiring skill, potential applicant pool (jobs requiring skill, licensure)licensure)

What is the relevant “community”?What is the relevant “community”? What is a “significant” statistical disparity?What is a “significant” statistical disparity?

Title VII (cont.)Title VII (cont.)

Disparate impact: The Disparate impact: The Griggs Griggs decisiondecision Plaintiff’s likely proof: An employer Plaintiff’s likely proof: An employer

“practice” (such as use of a test score “practice” (such as use of a test score cutoff) has the effect of screening out cutoff) has the effect of screening out significantly more men than women, more significantly more men than women, more African Americans than whites, or the like.African Americans than whites, or the like.

Employer’s likely response: Business need Employer’s likely response: Business need Special treatment for “professionally developed Special treatment for “professionally developed

tests” and “bona fide seniority programs”tests” and “bona fide seniority programs”

Title VII (cont.)Title VII (cont.)

Sexual harassmentSexual harassment ““Quid pro quo” – near absolute liabilityQuid pro quo” – near absolute liability ““Hostile environment”Hostile environment”

Plaintiff must show conditions severe Plaintiff must show conditions severe enough to “affect working conditions”enough to “affect working conditions”

Employer may defend on basis of effective Employer may defend on basis of effective program to combat such conductprogram to combat such conduct

Same sex harassment is a possible Same sex harassment is a possible source of liabilitysource of liability

Equal Pay ActEqual Pay Act

““Equal pay for equal work” – not Equal pay for equal work” – not “comparable worth” but very small “comparable worth” but very small differences in duties do not likely matterdifferences in duties do not likely matter

Exceptions: “(i) a seniority system; (ii) a Exceptions: “(i) a seniority system; (ii) a merit system; (iii) a system which merit system; (iii) a system which measures earnings by quantity or quality measures earnings by quantity or quality of production; or (iv) a differential based of production; or (iv) a differential based on any other factor other than sex.” on any other factor other than sex.”

Wage and Hour RegulationWage and Hour Regulation

Fair Labor Standards ActFair Labor Standards Act Contract Labor StandardsContract Labor Standards

Davis-Bacon (construction)Davis-Bacon (construction) Walsh-Healey (goods)Walsh-Healey (goods) Service Contract Labor Standards ActService Contract Labor Standards Act

Portal-to-Portal ActPortal-to-Portal Act Garnishment RestrictionsGarnishment Restrictions State laws (wage payment, minimum wage)State laws (wage payment, minimum wage)

FLSAFLSA

Minimum wage standardMinimum wage standard Current: $5.15 an hourCurrent: $5.15 an hour

Overtime pay requirementOvertime pay requirement Current: 1 ½ the individual’s “regular rate” (not Current: 1 ½ the individual’s “regular rate” (not

the minimum wage) for each hour over 40 in a the minimum wage) for each hour over 40 in a work weekwork week

Recent controversy: Amending the “white Recent controversy: Amending the “white collar” exemptions, and thus eliminating collar” exemptions, and thus eliminating overtime pay requirement for a (hotly overtime pay requirement for a (hotly contested, but significant) number of contested, but significant) number of workersworkers

Pensions and FringesPensions and Fringes

ERISAERISA Pensions (defined benefit, defined contribution, Pensions (defined benefit, defined contribution,

accrual, vesting, the “cash balance plan” accrual, vesting, the “cash balance plan” controversy)controversy)

Welfare plans (preemption of state law Welfare plans (preemption of state law problems)problems)

Mandated benefits (FMLA, workers Mandated benefits (FMLA, workers compensation, UI, etc.)compensation, UI, etc.)

OASDI and FICA (Social Security)OASDI and FICA (Social Security)

Termination of EmploymentTermination of Employment

The traditional “at will” doctrinesThe traditional “at will” doctrines Breach of contract actions: the burden of proof Breach of contract actions: the burden of proof

and the interpretation rulesand the interpretation rules Tort actionsTort actions

Judicial modificationsJudicial modifications The “public policy” exceptionThe “public policy” exception Evidence of contract terms (and the Evidence of contract terms (and the

“disclaimer” response)“disclaimer” response) Duty of Good Faith and Fair DealingDuty of Good Faith and Fair Dealing

Termination (cont.)Termination (cont.)

Statutory protectionsStatutory protections Private sector Private sector

Anti-retaliation bans (including Anti-retaliation bans (including “whistleblower” laws)“whistleblower” laws)

General statutes: The “Model Act” and the General statutes: The “Model Act” and the Montana statuteMontana statute

Public sector (merit systems and teacher Public sector (merit systems and teacher tenure laws)tenure laws)

Termination (cont.)Termination (cont.)

General problemsGeneral problems ““Constructive termination”Constructive termination” ““Good cause”Good cause” Using arbitration as a forum to Using arbitration as a forum to

determine whether a discharge was determine whether a discharge was wrongful under an employment contract wrongful under an employment contract or a statute (or a statute (GilmerGilmer and its progeny) and its progeny)

Collective RightsCollective Rights

Common law hostilityCommon law hostility Federal Statutes affecting the Private Federal Statutes affecting the Private

SectorSector Railway Labor ActRailway Labor Act Norris-LaGuardia ActNorris-LaGuardia Act Wagner Act (NLRA)Wagner Act (NLRA) Taft-Hartley Act (LMRA)Taft-Hartley Act (LMRA) Landrum-Griffin ActLandrum-Griffin Act

National Labor Relations ActNational Labor Relations Act

Section Seven: Statement of Collective Section Seven: Statement of Collective RightsRights

Section Eight: Unfair Labor PracticesSection Eight: Unfair Labor Practices Section Nine: Selection of RepresentativesSection Nine: Selection of Representatives Section Ten: EnforcementSection Ten: Enforcement

Role of General Counsel as prosecutorRole of General Counsel as prosecutor National Labor Relations Board as specialized National Labor Relations Board as specialized

court-like tribunalcourt-like tribunal Review by Circuit Courts of AppealReview by Circuit Courts of Appeal

Collective Rights (cont.)Collective Rights (cont.)

Enforcement of collective agreementsEnforcement of collective agreements The typical grievance-arbitration systemThe typical grievance-arbitration system

The “Duty of Fair Representation” owed by The “Duty of Fair Representation” owed by union to workers it representsunion to workers it represents In negotiatingIn negotiating In grievance handlingIn grievance handling

Public Sector StatutesPublic Sector Statutes Do public sector workers need a “right to Do public sector workers need a “right to

strike”? strike”?