Employment At Will
Common law doctrine under which either party may terminate employment relationship at any time for any reason (or no reason).
Employment At Will: Exceptions
Public policy such as whistleblower protection
Whistleblower Protection Act
Prohibits an employer from terminating an employee for refusing to perform an illegal or for reporting illegal conduct to proper authorities.
Both federal and state provisions.
Fair Labor Standards Act: Minimum Wage
lowest wage that an employer may pay an hourly-wage employee ($7.25 per hour as July 2009).
Fair Labor Standards Act: Overtime Pay
any hours worked in excess of 40 hours per week eligible for time and one-half pay (except for exempt employees)
Fair Labor Standards Act: Child Labor
certain occupations prohibited for under 16 year-olds
Occupational Safety and Health Act (OSHA)
Federal agency empowered to promulgate workplace health and safety standards, to conduct workplace inspections, and to investigate employee complaints
Employers must promptly report any workplace accident as a result of which an employee was killed or at least five employees were hospitalized
Social Security Act
Government-assured supplemental income for persons (i) over the age of 65 years, (ii) their survivors, and (iii) disabled persons
Also provides Medicare – Government-administered health insurance program for those eligible for social security.
Family and Medical Leave Act
Federal law requiring employers with 50 + employees to provide up to 12 weeks of family or medical leave during any twelve-month period.
During leave, employer must continue to provide benefits to the employee but is not required to pay the employee while on leave.
COBRA 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.
Employers must comply if they have more than 20 employees.
Workers’ Compensation Laws
State laws establishing administrative procedure for compensating workers for workplace injuries in the course of employment, regardless of fault.
Payments for medical expenses and a portion of lost wages.
No compensation for pain and suffering
Employee Privacy Rights: Electronic Monitoring in the Workplace
Electronic Communications Privacy Act allows employers to monitor electronic communications in the workplace.
But it prohibits intentional interception of personal communications.
ECPA does permit employers to monitor employee electronic communications in the course of business.
Employee Privacy Rights: Electronic Performance Surveillance
Most limitations can be avoided if the employer informs employees that surveillance will occur.
Employee Privacy Rights: Screening Procedures
Application question must have some reasonable connection to the job sought.
Employee Privacy Rights: Privacy Expectations and Email systems
Courts generally hold for employers.
Title VII of the Civil Rights Act (1964) prohibits job discrimination based on
Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability.
Title VII of Civil Rights Act: Disparate-Treatment Discrimination
Intentional discrimination against members of a protected class
Title VII of Civil Rights Act: Disparate Impact Discrimination
Discrimination resulting from practices or procedures which, although not facially discriminatory, have the effect of discriminating against members of a protected class
Title VII of Civil Rights Act: To prevail on a disparate impact claims, a plaintiff must prove:
member of a protected class
rejected, demoted, or terminated by the employer
position subsequently filled with a person not in a protected class
Title VII of Civil Rights Act: Disparate impact has been found in the following job application requirements:
general education background
Title VII of Civil Rights Act: Pregnancy
women who are pregnant, have recently given birth, or have a medical condition related to pregnancy or childbirth must be treated the same as any other employee who is temporarily unable to perform some or all job functions.
Equal Pay Act
Federal law prohibits gender-based differences in wages paid for equal work on jobs whose performance requires equal skill, effort, and responsibility under similar conditions.
Sexual Harassment: Quid-Pro-Quo Sexual Harassment
Granting employment, job promotions, or other benefits in return for sexual favors, or refusing (or threatening refusal) to hire, promote, or extend other employment benefits if sexual favors are refused.
Sexual Harassment: Hostile Environment Harassment
Language or conduct that is so sexually offensive that it creates a hostile working environment.
Sexual Harassment: Sources of Harassment
Employers are generally liable for sexual harassment by managers and supervisory employees regardless of the employer’s knowledge of the harassment.
Sexual Harassment: Sources of Harassment (2)
Employers are generally liable for sexual harassment by an employee’s co-workers only if the employer knew or should have known about the harassment and failed to take remedial action.
Age Discrimination: Age Discrimination in Employment Act (“ADEA”)
Federal law prohibiting (i) employment discrimination on the basis of age against persons 40 years of age and older, and (ii) mandatory retirement for non-managerial employees.
Age Discrimination: In order to prevail, a plaintiff must show the following:
member of the protected age group at the time of the employment decision
qualified for the position
discharged, denied employment, or denied promotion under circumstances giving rise to a reasonable inference of discrimination
Disability Discrimination: Americans with Disabilities Act (“ADA”)
Federal law prohibiting discrimination in hiring, promotion, and discharge against persons with disabilities.
Disability Discrimination: The ADA defines a “disability” as:
A mental or physical impairment that substantially limits one or more major life activities
A record of such impairment, or
Being regarded as having such an impairment.
Employers are required by the ADA to reasonably accommodate a disability of an employee or job applicant who is otherwise qualified to perform the essential functions of the job in question.
Cannot create undue hardship on employer
Enforcement of Laws
File claim with Equal Employment Opportunity Commission (EEOC)
File claim with local Human Relations Commission.
Agency may take lead in enforcement or issue “right to sue” letter
Remedies for Violations: Liability may be extensive. Plaintiff may receive:
Retroactive Promotions; and
Once a plaintiff establishes that discrimination has occurred, the burden shifts to the employer to justify the discriminatory policy or practice.
There are four basic types of defenses to employment discrimination claims.
Bona fide occupational qualification.
After-acquired evidence of employee misconduct.
The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.
Business necessity is a defense to disparate impact discrimination.
Bona Fide Occupational Qualification (“BFOQ”)
Job requirements that are reasonably necessary to the normal operation of a business.
(Race cannot be a BFOQ)
A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer.
A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.
After-acquired evidence refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit.
While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.
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