Employment Law

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Employment LawEmployment LawChapter

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BUSINESS LAW TODAYBUSINESS LAW TODAY Essentials 9Essentials 9thth Ed. Ed.Roger LeRoy Miller - Institute for University Studies, Arlington, TexasRoger LeRoy Miller - Institute for University Studies, Arlington, TexasGaylord A. Jentz - University of Texas at Austin, EmeritusGaylord A. Jentz - University of Texas at Austin, Emeritus


Learning ObjectivesLearning Objectives

What is the employment-at-will What is the employment-at-will doctrine? When and why are exceptions doctrine? When and why are exceptions to this doctrine made?to this doctrine made?

What federal statute governs working What federal statute governs working hours and wages? hours and wages?

Under the Family and Medical Leave Act Under the Family and Medical Leave Act of 1993, under what circumstances may of 1993, under what circumstances may an employee take family or medical an employee take family or medical leave?leave?


Learning ObjectivesLearning Objectives

What are the two most important federal What are the two most important federal statutes governing immigration and statutes governing immigration and employment today? employment today?

Generally, what kind of conduct is Generally, what kind of conduct is prohibited by the Title VII Civil Rights prohibited by the Title VII Civil Rights Act, as amended? Act, as amended?


Employment-at-WillEmployment-at-Will

Historically, employment law was Historically, employment law was governed by the common law doctrine of governed by the common law doctrine of “employment at will” where either “employment at will” where either employer or employee could terminate employer or employee could terminate the relationship at any time, for any the relationship at any time, for any reason.reason.

Today employment law is heavily Today employment law is heavily regulated by state and federal statutes. regulated by state and federal statutes.


The doctrine of employment-at-will The doctrine of employment-at-will allows the employer and the employee allows the employer and the employee to terminate employment at any time, to terminate employment at any time, for any reason, without liability.for any reason, without liability.

Some states recognize one or more Some states recognize one or more judicial judicial exceptionsexceptions to this rule, while to this rule, while some states recognize none.some states recognize none.

Employment-at-WillEmployment-at-Will


ContractContract Exceptions: An implied Exceptions: An implied contract exists between employer and contract exists between employer and employee. Oral agreements may employee. Oral agreements may become part of the implied contract.become part of the implied contract.

TortTort Exceptions: Wrongful discharge, Exceptions: Wrongful discharge, defamation may be actionable.defamation may be actionable.

Public Policy Exceptions Public Policy Exceptions (Whistleblowing).(Whistleblowing).

Wrongful Discharge.Wrongful Discharge.

Exceptions to At-WillExceptions to At-Will


Child Labor.Child Labor.Fair Labor Standards Fair Labor Standards

Act (1938) prohibits Act (1938) prohibits oppressive child labor oppressive child labor practices. Provides practices. Provides regulations for work, regulations for work, depending on the age of depending on the age of child.child.

Wage and Hour LawsWage and Hour Laws


Wages and Hours.Wages and Hours.Davis-Bacon Act -- the prevailing wage act.Davis-Bacon Act -- the prevailing wage act.Walsh-Healey Act -- the beginning of Walsh-Healey Act -- the beginning of

minimum wages.minimum wages.Fair Labor Standards Act (FLSA) -- an Fair Labor Standards Act (FLSA) -- an

extension of wage and hour regulation to extension of wage and hour regulation to workers in interstate commerce.workers in interstate commerce.

Overtime Exemptions.Overtime Exemptions.Certain employees (usually executive, Certain employees (usually executive,

administrative, and professional) are exempt administrative, and professional) are exempt from overtime.from overtime.

Wage and Hour LawsWage and Hour Laws


LayoffsLayoffs

Worker Adjustment and Retraining Worker Adjustment and Retraining Notification Act.Notification Act.Intended to give employees advance notice in Intended to give employees advance notice in

the event of a “mass layoff.”the event of a “mass layoff.”Mass layoff: during 30 day period, loss of at Mass layoff: during 30 day period, loss of at

least 33% full-time and 50 employees, ORleast 33% full-time and 50 employees, ORLoss of 500 hundred employees.Loss of 500 hundred employees.Remedies for Violations: $500/day, plus back Remedies for Violations: $500/day, plus back

pay, medical benefits.pay, medical benefits.


The FMLA requires employers with over The FMLA requires employers with over 50 employees to provide unpaid leave to 50 employees to provide unpaid leave to employees who need to care for a spouse, employees who need to care for a spouse, child, or parent suffering with a serious child, or parent suffering with a serious medical condition.medical condition.

The employee cannot be terminated for The employee cannot be terminated for taking leave under the policy, and has the taking leave under the policy, and has the right to restoration to the same or a right to restoration to the same or a similar position upon return to work.similar position upon return to work.

Family Medical Leave ActFamily Medical Leave Act


The fundamental federal law aimed The fundamental federal law aimed toward safety in the workplace.toward safety in the workplace.

Enforcement is by OSHA, NIOSH, and the Enforcement is by OSHA, NIOSH, and the OSHRC.OSHRC.

Procedures and Violations: Employers Procedures and Violations: Employers with 11 or more employees required to with 11 or more employees required to keep records.keep records.

The Occupational Safety and The Occupational Safety and Health Act (OSHA)Health Act (OSHA)


These laws reduce employer liability to These laws reduce employer liability to employees for workplace injuries, and employees for workplace injuries, and provide a measure of assurance that provide a measure of assurance that workplace injuries will be compensated, workplace injuries will be compensated, regardless of the solvency of the employer, regardless of the solvency of the employer, by:by:

Requiring that injured employees make a Requiring that injured employees make a claim against the employer’s workers’ claim against the employer’s workers’ compensation insurance policy, instead of compensation insurance policy, instead of suing the employer.suing the employer.

Requiring most employers to carry workers’ Requiring most employers to carry workers’ compensation insurance.compensation insurance.

State Worker’s Compensation State Worker’s Compensation LawsLaws


Social Security and Welfare.Social Security and Welfare. Medicare.Medicare.

Federally funded health insurance for people Federally funded health insurance for people aged 65 or older.aged 65 or older.

Private Pension Plans.Private Pension Plans.Employee Retirement Income Security Act Employee Retirement Income Security Act

(ERISA) gives employee a vested right to receive (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops pension benefits at a future date when she stops working.working.

Unemployment Insurance.Unemployment Insurance.

Income SecurityIncome Security


COBRA prohibits the discontinuance of COBRA prohibits the discontinuance of insurance benefits of workers who have insurance benefits of workers who have voluntarily or involuntarily been voluntarily or involuntarily been separated from work, unless the separated from work, unless the involuntary separation was on the basis involuntary separation was on the basis of gross misconduct.of gross misconduct.

Employers must comply if they have Employers must comply if they have more than 20 employees.more than 20 employees.

COBRACOBRA


Employer-Sponsored Employer-Sponsored Group Health PlansGroup Health Plans

Health Insurance Portability and Health Insurance Portability and Accountability Act (HIPAA)Accountability Act (HIPAA)Does not require health coverage but does Does not require health coverage but does

establish requirements for those that do.establish requirements for those that do.


Employee Privacy RightsEmployee Privacy Rights

Electronic Monitoring in the Workplace.Electronic Monitoring in the Workplace.Employee Privacy Under Constitutional and Employee Privacy Under Constitutional and

Tort Law. Personal right to privacy may not Tort Law. Personal right to privacy may not apply to work computers, especially if there is apply to work computers, especially if there is a policy manual.a policy manual.

Electronic Communications Privacy Act.Electronic Communications Privacy Act.Stored Communications (part of ECPA).Stored Communications (part of ECPA).


Employee Privacy RightsEmployee Privacy Rights

Other Types of Monitoring.Other Types of Monitoring.Lie Detectors.Lie Detectors.Drug and Genetic Testing.Drug and Genetic Testing.What about preemployment screening What about preemployment screening

procedures?procedures?


Immigration LawImmigration Law

Immigration Reform and Control Act of Immigration Reform and Control Act of 1986.1986.Amnesty to certain groups of illegal aliens living Amnesty to certain groups of illegal aliens living

in the United States.in the United States.Sanctions for employers.Sanctions for employers.Criminal and Civil Penalties.Criminal and Civil Penalties.Antidiscrimination Provisions.Antidiscrimination Provisions.


Immigration LawImmigration Law

Immigration Act of 1990.Immigration Act of 1990. I-9 Employment Verification by Employers.I-9 Employment Verification by Employers. I-551 Alien Registration Receipts.I-551 Alien Registration Receipts.H-1 B Visa Program.H-1 B Visa Program.Labor Certification.Labor Certification.H-2, O, L, and E Visas.H-2, O, L, and E Visas.

CASE 18.1CASE 18.1 Castellanos-Contreras v. Decatur Castellanos-Contreras v. Decatur Hotels, LLC. Hotels, LLC. (2009).(2009). Guest workers are liable for Guest workers are liable for their own recruitment, transportation, and visa their own recruitment, transportation, and visa expenses if incurred without employer’s expenses if incurred without employer’s knowledge.knowledge.


Title VII prohibits discrimination in Title VII prohibits discrimination in employment on the basis of race, sex, employment on the basis of race, sex, color, religion, and national origin. color, religion, and national origin. “Sex” now includes pregnancy.“Sex” now includes pregnancy.

In addition to prohibiting religious In addition to prohibiting religious discrimination, employers must discrimination, employers must reasonably accommodate an reasonably accommodate an employee’s religious practices.employee’s religious practices.

Enforcement of Title VII by Enforcement of Title VII by EEOCEEOC..

Title VII of the Civil Rights Act Title VII of the Civil Rights Act of 1964of 1964


Intentional (“Disparate-Treatment”) Intentional (“Disparate-Treatment”) Discrimination. For Discrimination. For prima facieprima facie case, case, applicant must prove:applicant must prove:She is member of a protected class;She is member of a protected class;Applied, qualified and rejected for job; andApplied, qualified and rejected for job; andEmployer continued to seek applicants.Employer continued to seek applicants.

Unintentional (“Disparate Impact”) Unintentional (“Disparate Impact”) Discrimination.Discrimination.No-protected applicant sues Employer who No-protected applicant sues Employer who

tries to integrate members of protected tries to integrate members of protected classes into workplace.classes into workplace.

Intentional vs. Unintentional Intentional vs. Unintentional DiscriminationDiscrimination


Title VII prohibits employment policies or Title VII prohibits employment policies or intentional/ negligent discrimination on basis intentional/ negligent discrimination on basis of race, color or national origin.of race, color or national origin.

Company policies that discriminate are Company policies that discriminate are illegal, unless (except for race) they have a illegal, unless (except for race) they have a substantial demonstrable relationship to substantial demonstrable relationship to realistic qualifications for job.realistic qualifications for job.

ReverseReverse Discrimination: discrimination Discrimination: discrimination against “majority” such as white males.against “majority” such as white males.See See Richi v. DestefanoRichi v. Destefano (2009) involving white New (2009) involving white New

Haven firefighters who were discriminated against by Haven firefighters who were discriminated against by fire department be throwing out a promotion test.fire department be throwing out a promotion test.

Discrimination Based on Race, Discrimination Based on Race, Color, and National OriginColor, and National Origin


AccommodationAccommodation: Employers must : Employers must “reasonably accommodate” the “reasonably accommodate” the “sincerely held’ religious practices of its “sincerely held’ religious practices of its employees, employees, unlessunless to do so would cause to do so would cause undue hardship to employer’s business.undue hardship to employer’s business.

Discrimination Based on Discrimination Based on ReligionReligion


Title VII prohibits employers from classifying Title VII prohibits employers from classifying jobs as male or female or from advertising jobs as male or female or from advertising such, such, unlessunless employer can prove gender is employer can prove gender is essential to the job.essential to the job.

Plaintiff must show gender was determining Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.factor in hiring, firing or lack of promotion.

2009 “Lilly Ledbetter Fair Pay Act” Equal Pay 2009 “Lilly Ledbetter Fair Pay Act” Equal Pay Legislation:Legislation: removed time limits to file suit. removed time limits to file suit.

Constructive Discharge.Constructive Discharge.Voluntarily leaves because conditions “intolerable.”Voluntarily leaves because conditions “intolerable.”Applies to all Title VII discrimination.Applies to all Title VII discrimination.

Discrimination Based on Discrimination Based on GenderGender


U.S. Supreme Court has interpreted U.S. Supreme Court has interpreted Title VII’s prohibition against sex Title VII’s prohibition against sex discrimination to include a prohibition discrimination to include a prohibition against sexual harassment.against sexual harassment.

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

Sexual HarassmentSexual Harassment


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

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

Hostile Work EnvironmentHostile Work Environment


Involves demands for sexual favors by a Involves demands for sexual favors by a supervisor from a subordinate, in supervisor from a subordinate, in exchange for some workplace benefit.exchange for some workplace benefit.

Must have “tangible employment action” Must have “tangible employment action” for employer liability.for employer liability.

Ellerth/FaragherEllerth/Faragher Affirmative Defense. Affirmative Defense. Retaliation by Employers: Retaliation by Employers: 20062006: :

employer’s retaliatory actions may be employer’s retaliatory actions may be evidence of harassment.evidence of harassment. 20092009: : protection protection for speaking out about another’s complaint.for speaking out about another’s complaint.

Quid Pro QuoQuid Pro Quo : Harassment : Harassment by Supervisorsby Supervisors


The The Ellerth/FaragherEllerth/Faragher Affirmative DefenseAffirmative Defense

The The Ellerth/Faragher Ellerth/Faragher cases (1998) gave cases (1998) gave employers a defense against sexual employers a defense against sexual harassment claims that absolves them harassment claims that absolves them from liability IF the employer can prove:from liability IF the employer can prove:1.1. The employer has taken reasonable care to prevent The employer has taken reasonable care to prevent

and promptly correct any sexually harassing behavior and promptly correct any sexually harassing behavior (by establishing effective antiharassment policies and (by establishing effective antiharassment policies and complaint procedures, for example), ANDcomplaint procedures, for example), AND

2.2. The plaintiff-employee unreasonably failed to take The plaintiff-employee unreasonably failed to take advantage of any preventive or corrective advantage of any preventive or corrective opportunities provided by the employer to avoid harm.opportunities provided by the employer to avoid harm.


Co-WorkersCo-Workers: : employer generally liable only employer generally liable only if it knew, or should have known, about if it knew, or should have known, about harassment and failed to take immediate harassment and failed to take immediate action.action. Employee notice to supervisor Employee notice to supervisor isis notice to notice to

employer under agency law.employer under agency law.

Non-EmployeesNon-Employees: : employers may also be employers may also be liable for harassment.liable for harassment.

Same-GenderSame-Gender harassment also violates harassment also violates Title VII.Title VII.

Sexual Harassment IssuesSexual Harassment Issues


Remedies under Title VIIRemedies under Title VII

Liability may be extensive. Plaintiff may Liability may be extensive. Plaintiff may receive:receive:Reinstatement.Reinstatement.Back Pay.Back Pay.Retroactive Promotions; andRetroactive Promotions; andDamages.Damages.


The Age Discrimination in Employment Act The Age Discrimination in Employment Act (ADEA) protects individuals over the age of (ADEA) protects individuals over the age of 40 from workplace discrimination that 40 from workplace discrimination that favors younger workers.favors younger workers.

Plaintiff must show:Plaintiff must show:He was member of protected age group,He was member of protected age group,Was qualified for the position from which he was Was qualified for the position from which he was

discharged, anddischarged, andWas discharged under circumstances that inferred Was discharged under circumstances that inferred

discrimination.discrimination.

Discrimination Based on AgeDiscrimination Based on Age


Discrimination Based on AgeDiscrimination Based on Age

Replacing Older Workers with Younger Replacing Older Workers with Younger Workers. Workers. CASE 18.2CASE 18.2 Sprint/United Management Co. v. Sprint/United Management Co. v.

Mendelsohn Mendelsohn (2008).(2008). Testimony of company’s attitude Testimony of company’s attitude towards age was towards age was notnot per se admissible and per se admissible and inadmissible.inadmissible.

State Employees Not Covered by ADEA. U.S. State Employees Not Covered by ADEA. U.S. Supreme Court cases:Supreme Court cases:Kimel v. Florida Board of RegentsKimel v. Florida Board of Regents (2000). (2000).Tennessee v. LaneTennessee v. Lane (2004). (2004).

Federal Employees Explicitly Covered by the Federal Employees Explicitly Covered by the ADEA. ADEA. Gomez-Perez v. PotterGomez-Perez v. Potter (2008). (2008).


The Americans with Disability Act The Americans with Disability Act (ADA) requires employers to offer (ADA) requires employers to offer reasonable accommodation to reasonable accommodation to employees or applicants with a employees or applicants with a “disability” who are otherwise qualified “disability” who are otherwise qualified for the job they hold or seek.for the job they hold or seek.

The duty of reasonable The duty of reasonable accommodation ends at the point at accommodation ends at the point at where it becomes an undue hardship.where it becomes an undue hardship.

Discrimination Based On Discrimination Based On DisabilityDisability


Procedures under the ADAProcedures under the ADA

To prevail on a claim under ADA, To prevail on a claim under ADA, plaintiff must show she:plaintiff must show she:Has a “disability.”Has a “disability.”Is otherwise qualified for the employment in Is otherwise qualified for the employment in

question; andquestion; andWas excluded from employment solely Was excluded from employment solely

because of the disability.because of the disability.Workforce must be more than 15 employeesWorkforce must be more than 15 employees

Plaintiff must first exhaust Plaintiff must first exhaust administrative relief with EEOC.administrative relief with EEOC.


ADA: What is a “Disability”?ADA: What is a “Disability”?

ADA defines disability as:ADA defines disability as:Physical or mental impairment that Physical or mental impairment that

“substantially limits” one or more of major life “substantially limits” one or more of major life activities; oractivities; or

A record of such impairment; or A record of such impairment; or Being regarded as having such an impairment. Being regarded as having such an impairment.

Determination is decided on a case-by-Determination is decided on a case-by-case basis.case basis.


2008 Amendments2008 Amendments

2008 Congressional Amendments reverse prior 2008 Congressional Amendments reverse prior Supreme Court cases:Supreme Court cases:Reverse Supreme Court’s restrictive interpretations of Reverse Supreme Court’s restrictive interpretations of

disability, disability, andandProhibit employers from considering mitigating Prohibit employers from considering mitigating

measures or medications when determining if an measures or medications when determining if an individual has a disability. In other words, disability is individual has a disability. In other words, disability is now determined on a case-by-case basis.now determined on a case-by-case basis.

CASE 18.3CASE 18.3 Rohr v. Salt River Project Rohr v. Salt River Project Agricultural Improvement and Power District. Agricultural Improvement and Power District. (2009). (2009). Diabetes is a disability if it significantly Diabetes is a disability if it significantly restricts an individual’s eating (a major life activity).restricts an individual’s eating (a major life activity).


If an employee with a disability can perform If an employee with a disability can perform the job with the job with reasonable accommodationreasonable accommodation, , without undue hardshipwithout undue hardship on the employer, on the employer, the accommodation must be made.the accommodation must be made.Examples: wheelchair ramps, flexible working Examples: wheelchair ramps, flexible working

hours, improved training materials. (Does not hours, improved training materials. (Does not include carpel tunnel syndrome.)include carpel tunnel syndrome.)

ADA: ‘Reasonable ADA: ‘Reasonable Accommodation’Accommodation’


ADA IssuesADA Issues Reasonable Accommodation: Reasonable Accommodation:

Job Applications and Pre-Employment Job Applications and Pre-Employment Physical Exams.Physical Exams.

Substance Abusers (ADA only protects Substance Abusers (ADA only protects formerformer users). users).

Association Discrimination.Association Discrimination.Adverse actions based on stereotypes.Adverse actions based on stereotypes.

Does ADA allow ‘Hostile Does ADA allow ‘Hostile Environment’ claims?Environment’ claims?


There are four basic types of defenses to There are four basic types of defenses to employment discrimination claims.employment discrimination claims.Business necessity. Business necessity. Bona fide occupational qualification.Bona fide occupational qualification.Seniority Systems.Seniority Systems.After-acquired evidence of employee After-acquired evidence of employee

misconduct. misconduct.

Defenses to Employment Defenses to Employment DiscriminationDiscrimination


The business necessity defense requires The business necessity defense requires the employer to demonstrate that the the employer to demonstrate that the imposition of a job qualification is imposition of a job qualification is reasonably necessary to the legitimate reasonably necessary to the legitimate conduct of the employer’s business.conduct of the employer’s business.

Business necessity is a defense to Business necessity is a defense to disparate impact discrimination.disparate impact discrimination.

Business Necessity DefenseBusiness Necessity Defense


The bona fide occupational qualification The bona fide occupational qualification defense requires an employer to show defense requires an employer to show that an particular skill is necessary for that an particular skill is necessary for the performance of a particular job.the performance of a particular job.

The BFOQ defense is used in cases of The BFOQ defense is used in cases of disparate treatment discrimination.disparate treatment discrimination.

B.F.O.Q. DefenseB.F.O.Q. Defense


A seniority system is one that conditions A seniority system is one that conditions the distribution of job benefits on the the distribution of job benefits on the length of time one has worked for an length of time one has worked for an employer.employer.

A seniority system can be a defense only A seniority system can be a defense only if it is a bona fide system, not designed if it is a bona fide system, not designed to evade the effects of the anti-to evade the effects of the anti-discrimination laws.discrimination laws.

Seniority System DefenseSeniority System Defense


After-acquired evidence refers to evidence After-acquired evidence refers to evidence of misconduct, committed by an employee of misconduct, committed by an employee who is suing an employer for employment who is suing an employer for employment discrimination, that is uncovered during discrimination, that is uncovered during the process of discovery conducted in the process of discovery conducted in preparation for a defense against the suit.preparation for a defense against the suit.

While it may serve to limit employee While it may serve to limit employee recovery, it does not act as an absolute recovery, it does not act as an absolute defense for the employer. defense for the employer.

After-Acquired Evidence of After-Acquired Evidence of Employee MisconductEmployee Misconduct

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Employment Law