CHAPTER 40 LABOR AND FAIR EMPLOYMENT PRACTICES DAVIDSON, KNOWLES & FORSYTHE Business Law: Cases and Principles in the Legal Environment (8 th Ed.)

CHAPTER 40CHAPTER 40LABOR AND FAIR EMPLOYMENT LABOR AND FAIR EMPLOYMENT

PRACTICESPRACTICES

CHAPTER 40CHAPTER 40LABOR AND FAIR EMPLOYMENT LABOR AND FAIR EMPLOYMENT

PRACTICESPRACTICES

DAVIDSON, KNOWLES & FORSYTHE DAVIDSON, KNOWLES & FORSYTHE Business Law: Cases and Principles Business Law: Cases and Principles

in the Legal Environmentin the Legal Environment (8 (8thth Ed.) Ed.)

2© 2004 West Legal Studies in Business© 2004 West Legal Studies in BusinessA Division of Thomson LearningA Division of Thomson Learning

BUSINESS LAW: BUSINESS LAW: Cases & PrinciplesCases & PrinciplesDavidson Davidson • Knowles • Forsythe 8• Knowles • Forsythe 8 thth Ed. Ed.

INTRODUCTIONINTRODUCTIONLabor and fair employment practices laws Labor and fair employment practices laws

provide the framework under which provide the framework under which workers operate and under which workers operate and under which employees are regulated and protected. employees are regulated and protected.

Labor law applies to the relationship Labor law applies to the relationship between management and workers.between management and workers.

Fair employment practices law deals with Fair employment practices law deals with employer rights and responsibilities. employer rights and responsibilities.



FEDERAL LABOR LAWFEDERAL LABOR LAWFEDERAL LABOR LAWFEDERAL LABOR LAWFederal Statutes.Federal Statutes.

– Unions not always a fact of life. Unions not always a fact of life. – Violent and divisive battles characterized Violent and divisive battles characterized

employer and pro-union workers relations.employer and pro-union workers relations.– Federal courts were hostile and viewed union Federal courts were hostile and viewed union

activities as criminal conspiracies.activities as criminal conspiracies.– Clayton Act passed to shield unions from Clayton Act passed to shield unions from

liability under antitrust laws, Supreme Court liability under antitrust laws, Supreme Court decisions narrowed statutory protection.decisions narrowed statutory protection.



NORRIS-LAGUARDIA ACT NORRIS-LAGUARDIA ACT (1932)(1932)NORRIS-LAGUARDIA ACT NORRIS-LAGUARDIA ACT (1932)(1932) Immunized certain activities, Immunized certain activities, e.g.,e.g., peaceful peaceful

refusals to work, from federal court action.refusals to work, from federal court action. Authorizes boycotts and picketing.Authorizes boycotts and picketing. Barred federal injunctions in the context of labor Barred federal injunctions in the context of labor

disputes as well as institution of yellow dog disputes as well as institution of yellow dog contracts. contracts.

Permitted employees to organize and collectively Permitted employees to organize and collectively bargain.bargain.

Aimed at keeping courts out of the labor field.Aimed at keeping courts out of the labor field.



THE WAGNER ACT THE WAGNER ACT (1935)(1935)THE WAGNER ACT THE WAGNER ACT (1935)(1935)

Encourages organizing activities and Encourages organizing activities and bargaining. bargaining.

Allows workers the freedom to join unions.Allows workers the freedom to join unions.Collectively bargain with an employer.Collectively bargain with an employer.Engage in mutually beneficial activities.Engage in mutually beneficial activities.Established National Labor Relations Board Established National Labor Relations Board

(NLRB): (NLRB): – Charged with administering and interpreting the Charged with administering and interpreting the

unfair labor practice provisions of this law.unfair labor practice provisions of this law.



TAFT-HARTLEY ACT TAFT-HARTLEY ACT (1947)(1947)TAFT-HARTLEY ACT TAFT-HARTLEY ACT (1947)(1947)

Prohibits unfair labor practices by unions.Prohibits unfair labor practices by unions.Separates the NLRB’s functions.Separates the NLRB’s functions.Empowers the courts to grant various civil Empowers the courts to grant various civil

and criminal remedies.and criminal remedies.Created the Federal Mediation and Created the Federal Mediation and

Conciliation Service for settling disputes Conciliation Service for settling disputes between labor and management.between labor and management.



LANDRUM-GRIFFIN ACT LANDRUM-GRIFFIN ACT (1959)(1959)LANDRUM-GRIFFIN ACT LANDRUM-GRIFFIN ACT (1959)(1959)

Requires extensive reporting on unions’ Requires extensive reporting on unions’ financial affairs.financial affairs.

Allows for civil and criminal penalties for Allows for civil and criminal penalties for corruption by union officers.corruption by union officers.

Provides a “bill of rights” for members Provides a “bill of rights” for members regarding elections and meetings.regarding elections and meetings.

Mandates democratic procedures in the Mandates democratic procedures in the conduct of union affairs.conduct of union affairs.



FEDERAL LABOR LAWFEDERAL LABOR LAWFEDERAL LABOR LAWFEDERAL LABOR LAWFurther IssuesFurther Issues

– Questions arise when employees select their Questions arise when employees select their bargaining representative.bargaining representative.

– Employer resists the election/representation Employer resists the election/representation process, may attempt to “decertify” the union.process, may attempt to “decertify” the union.

– Certification process may raise property issues, Certification process may raise property issues, because organizers ordinarily distribute union because organizers ordinarily distribute union literature to employees in firms.literature to employees in firms.

NLRB invalidates soliciting employees and NLRB invalidates soliciting employees and distributing of literature during working hours. distributing of literature during working hours.



FEDERAL LABOR LAWFEDERAL LABOR LAWFurther IssuesFurther Issues

– Wagner Act requires good-faith bargaining by Wagner Act requires good-faith bargaining by employer and the union.employer and the union.

– Both sides can use economic weapons outside Both sides can use economic weapons outside the bargaining room.the bargaining room.

– NLRB orders are not self-enforcing, they NLRB orders are not self-enforcing, they become law only when imposed by a federal become law only when imposed by a federal circuit court of appeals.circuit court of appeals.



LABORLABORLABORLABOR

State Laws:State Laws:– State law regulating labor is preempted by State law regulating labor is preempted by

federal law.federal law.– Matters peripheral to federal law or of deep Matters peripheral to federal law or of deep

state concern are subject to state regulation.state concern are subject to state regulation.



EMPLOYMENT LAWEMPLOYMENT LAWEMPLOYMENT LAWEMPLOYMENT LAWDesigned to ensure equal employment Designed to ensure equal employment

opportunity for persons historically opportunity for persons historically foreclosed from the workplace.foreclosed from the workplace.

Civil Rights Act of 1964.Civil Rights Act of 1964.– Title VII of this Act applies to employers with 15 Title VII of this Act applies to employers with 15

or more employees.or more employees.– Unions with 15 or more members or who operate Unions with 15 or more members or who operate

a hiring hall and employment agencies.a hiring hall and employment agencies.– Law forbids any form of employment Law forbids any form of employment

discrimination on basis of race, color, religion, discrimination on basis of race, color, religion, sex, or national origin.sex, or national origin.



Civil Rights Act of 1964:Civil Rights Act of 1964:– Forbids disparate treatment.Forbids disparate treatment.– Forbids disparate impact. Forbids disparate impact. – Forbids harassment.Forbids harassment.

Affirmative Action.Affirmative Action.Sexual Harassment.Sexual Harassment.

EMPLOYMENT LAWEMPLOYMENT LAWEMPLOYMENT LAWEMPLOYMENT LAW



SEXUAL HARASSMENTSEXUAL HARASSMENTSEXUAL HARASSMENTSEXUAL HARASSMENT

Although Title VII does not specifically mention Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII’s the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sex discrimination to include a prohibition against sexual harassment.prohibition against sexual harassment.

There are currently two forms of recognized There are currently two forms of recognized sexual harassment:sexual harassment:– Hostile Work Environment.Hostile Work Environment.– Quid Pro Quo.Quid Pro Quo.

Although Title VII does not specifically mention Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII’s the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sex discrimination to include a prohibition against sexual harassment.prohibition against sexual harassment.

There are currently two forms of recognized There are currently two forms of recognized sexual harassment:sexual harassment:– Hostile Work Environment.Hostile Work Environment.– Quid Pro Quo.Quid Pro Quo.



HOSTILE WORK HOSTILE WORK ENVIRONMENTENVIRONMENTHOSTILE WORK HOSTILE WORK ENVIRONMENTENVIRONMENT

Hostile environment occurs when workplace is Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions ridicule, insult so severe to alter the conditions of the victim’s employment. of the victim’s employment.

The conduct in the workplace must be offensive The conduct in the workplace must be offensive to a reasonable person as well as to the victim, to a reasonable person as well as to the victim, and it must be severe and pervasive.and it must be severe and pervasive.

Hostile environment occurs when workplace is Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions ridicule, insult so severe to alter the conditions of the victim’s employment. of the victim’s employment.

The conduct in the workplace must be offensive The conduct in the workplace must be offensive to a reasonable person as well as to the victim, to a reasonable person as well as to the victim, and it must be severe and pervasive.and it must be severe and pervasive.



HARASSMENT BY SUPERVISORSHARASSMENT BY SUPERVISORSHARASSMENT BY SUPERVISORSHARASSMENT BY SUPERVISORS

Quid Pro QuoQuid Pro Quo harassment involves the harassment involves the demands for sexual favors by a superior demands for sexual favors by a superior from a subordinate, in exchange for some from a subordinate, in exchange for some workplace benefit.workplace benefit.

Under certain conditions, an employer may Under certain conditions, an employer may be liable for the quid pro quo harassment be liable for the quid pro quo harassment committed by its supervisory employees.committed by its supervisory employees.

Quid Pro QuoQuid Pro Quo harassment involves the harassment involves the demands for sexual favors by a superior demands for sexual favors by a superior from a subordinate, in exchange for some from a subordinate, in exchange for some workplace benefit.workplace benefit.

Under certain conditions, an employer may Under certain conditions, an employer may be liable for the quid pro quo harassment be liable for the quid pro quo harassment committed by its supervisory employees.committed by its supervisory employees.



SUPREME COURT GUIDELINESSUPREME COURT GUIDELINES

Burlington Industries v. EllerthBurlington Industries v. Ellerth (1998). (1998).– Company liable for harassment even though the Company liable for harassment even though the

employee suffered no adverse job consequences.employee suffered no adverse job consequences.

Faragher v. City of Boca Raton (1998).Faragher v. City of Boca Raton (1998). – Employer (city) could be liable for supervisor’s Employer (city) could be liable for supervisor’s

harassment even though the employer was unaware of harassment even though the employer was unaware of the conduct. Harassment policies and procedures had the conduct. Harassment policies and procedures had not be distributed among employees.not be distributed among employees.



Employers have a Employers have a defensedefense if: if:– They took “reasonable care to prevent and They took “reasonable care to prevent and

correct promptly any sexually harassing correct promptly any sexually harassing behavior” by establishing and distributing behavior” by establishing and distributing effective harassment policies and procedures.effective harassment policies and procedures.

– That the employee suing for harassment failed That the employee suing for harassment failed to follow these policies and procedures.to follow these policies and procedures.

SUPREME COURT GUIDELINESSUPREME COURT GUIDELINES



HARASSMENT BY CO-WORKERSHARASSMENT BY CO-WORKERS

Employer generally liable only if employer knew Employer generally liable only if employer knew or should have known and failed to take action. or should have known and failed to take action. – Employee notice to supervisor is notice to Employer Employee notice to supervisor is notice to Employer

under agency law.under agency law.

Employers may also be liable for harassment by Employers may also be liable for harassment by non-employees.non-employees.

Same-sex harassment also violates Title VII.Same-sex harassment also violates Title VII.



Pregnancy Discrimination Act of 1978Pregnancy Discrimination Act of 1978– Mandates pregnancy be treated as any other Mandates pregnancy be treated as any other

disability protected by law.disability protected by law.– Expressly states that sex discrimination under Expressly states that sex discrimination under

Title VII includes discrimination on the basis of Title VII includes discrimination on the basis of pregnancy, childbirth, or related medical pregnancy, childbirth, or related medical conditions.conditions.




Immigration Reform and Control Act of Immigration Reform and Control Act of 1986 bans discrimination based on national 1986 bans discrimination based on national origin or citizenship status.origin or citizenship status.

Equal Pay Act of 1963 prohibits Equal Pay Act of 1963 prohibits discrimination in wages on the basis of sex. discrimination in wages on the basis of sex.

Age Discrimination in Employment Act of Age Discrimination in Employment Act of 1967 protects workers aged 40 or older 1967 protects workers aged 40 or older from adverse employment decisions based from adverse employment decisions based on age.on age.




The Rehabilitation Act of 1973 directs The Rehabilitation Act of 1973 directs federal contractors to reasonably federal contractors to reasonably accommodate “otherwise qualified” accommodate “otherwise qualified” handicapped individuals in connection with handicapped individuals in connection with employment.employment.




ADAADA

The Americans with Disabilities Act of The Americans with Disabilities Act of 1990 guarantees an individual with a 1990 guarantees an individual with a “disability” equal access to public services “disability” equal access to public services and requires employers to make a and requires employers to make a reasonable accommodation in employment reasonable accommodation in employment for qualified persons with disabilities.for qualified persons with disabilities.

Toyota Motor Manufacturing v. WilliamsToyota Motor Manufacturing v. Williams (2002).(2002).



Civil Rights Act of 1991:Civil Rights Act of 1991:– Amends earlier statutes to broaden the scope of Amends earlier statutes to broaden the scope of

protections afforded under anti-discrimination protections afforded under anti-discrimination law.law.

– Prohibits “race norming” of employment tests.Prohibits “race norming” of employment tests.– Allows compensatory and punitive damage Allows compensatory and punitive damage

awards and jury trials. awards and jury trials.




Family Medical Leave Act.Family Medical Leave Act.– Mandates that eligible employees receive up to Mandates that eligible employees receive up to

12 weeks of leave during any 12 month period 12 weeks of leave during any 12 month period for certain family related events:for certain family related events:

Birth of a childBirth of a child Placement of a child with the employee for adoption Placement of a child with the employee for adoption

or foster careor foster care Care of a seriously ill spouse, child, or parentCare of a seriously ill spouse, child, or parent Serious health condition of the employee that make Serious health condition of the employee that make

employee unable to perform and of the essential employee unable to perform and of the essential functions of the job.functions of the job.




Other Fair Employment Practices Laws.Other Fair Employment Practices Laws.– The Vietnam Era Veterans’ Readjustment The Vietnam Era Veterans’ Readjustment

Assistance Act of 1974.Assistance Act of 1974.– Various executive orders.Various executive orders.– Civil Rights Acts of 1866 and 1871.Civil Rights Acts of 1866 and 1871.– State law.State law.




EMPLOYMENTEMPLOYMENTOccupational Safety and Health Act:Occupational Safety and Health Act:

– Mandates safe and healthful workplace Mandates safe and healthful workplace conditions.conditions.

– Act authorizes enforcement of standards Act authorizes enforcement of standards through the Occupational Safety and Health through the Occupational Safety and Health Administration (OSHA).Administration (OSHA).

– Assists and encourages states’ efforts to assure Assists and encourages states’ efforts to assure safe and healthful working conditions.safe and healthful working conditions.

– Provides research, information, education, and Provides research, information, education, and training in the field of safety and health. training in the field of safety and health.



EMPLOYMENTEMPLOYMENT

Social Security.Social Security.– Provides federal benefits to the aged, the Provides federal benefits to the aged, the

disabled, and other “fully insured” workers.disabled, and other “fully insured” workers.– The Federal Insurance Contribution Act (FICA) The Federal Insurance Contribution Act (FICA)

taxes paid by employees and employers on taxes paid by employees and employers on wages earned by workers fund social security wages earned by workers fund social security retirement benefits and Medicare.retirement benefits and Medicare.




Unemployment Insurance:Unemployment Insurance:– Social Security covers unemployment Social Security covers unemployment

insurance through the Federal Unemployment insurance through the Federal Unemployment Tax Act (FUTA).Tax Act (FUTA).

– Represents a coordinated state and federal Represents a coordinated state and federal effort to provide economic security for effort to provide economic security for temporarily unemployed workers.temporarily unemployed workers.




Workers’ Compensation.Workers’ Compensation.– Provide financial benefits to reimburse workers Provide financial benefits to reimburse workers

for workplace related injury or death.for workplace related injury or death.– Compensation does not refer to wages or Compensation does not refer to wages or

salaries but to money paid by the employer to salaries but to money paid by the employer to indemnify the worker.indemnify the worker.

– Imposes strict liability on the employer for Imposes strict liability on the employer for injuries to employees during the scope to their injuries to employees during the scope to their employment.employment.

Documents

CHAPTER 40 LABOR AND FAIR EMPLOYMENT PRACTICES DAVIDSON, KNOWLES & FORSYTHE Business Law: Cases and Principles in the Legal Environment (8 th Ed.)