Overview of Overview of Employment LawEmployment Law

Chapter 1Chapter 1

http://www.youtube.com/watch?v=qMjz6WktOno

LEGAL SYSTEMSLEGAL SYSTEMS

Civil lawCivil law

Common lawCommon law

Precedents are the major source Precedents are the major source of law in common law systemsof law in common law systems

Stare DecisisStare Decisis ““Let the decision stand”Let the decision stand”

Finding an earlier case with similar factsFinding an earlier case with similar facts Deriving a rule of lawDeriving a rule of law Applying that rule to the case at handApplying that rule to the case at hand

PredictabilityPredictability AdaptabilityAdaptability

SOURCES OF LAWSOURCES OF LAW

ConstitutionsConstitutions TreatiesTreaties Statutes from state and federal Statutes from state and federal

legislatures legislatures Executive Branch: Executive ordersExecutive Branch: Executive orders Courts Courts Agency regulations. Agency regulations.

Substantive Rights under Substantive Rights under Employment LawEmployment Law

Non-discrimination and equal employment Non-discrimination and equal employment opportunityopportunity

Freedom to engage in concerted activity Freedom to engage in concerted activity and collective bargainingand collective bargaining

Minimum standards for terms and Minimum standards for terms and conditions of employmentconditions of employment

Compensation for certain types of harmCompensation for certain types of harm Protection of fundamental rightsProtection of fundamental rights

U.S. Employment LawU.S. Employment Law Employment law is a fragmented work Employment law is a fragmented work

in progress.in progress. Although there are some questions that Although there are some questions that

are well settled, others are developing.are well settled, others are developing. The best HR managers:The best HR managers:

Recognize and cope with ambiguity.Recognize and cope with ambiguity. Anticipate legal problems and try to avoid Anticipate legal problems and try to avoid

them.them. Are PROACTIVE.Are PROACTIVE.

Federal and state laws Federal and state laws affect the employment affect the employment relationship.relationship.

Sources of Employment LawSources of Employment Law Sources include both State and Federal:Sources include both State and Federal:

Constitutions ExampleExample: 4: 4thth Amendment prohibiting unreasonable Amendment prohibiting unreasonable

search & seizuresearch & seizure Statutes Statutes

Example: Example: Title VII; City ordinances; City ordinances Executive Orders Executive Orders

ExampleExample : : EO # 11246 Regulations, Guidelines and Administrative Regulations, Guidelines and Administrative

decisions decisions Example : Example : OSHA safety standards

Common law (case decisions) Common law (case decisions) ExampleExample : wrongful discharge in violation of public : wrongful discharge in violation of public

policy; see policy; see Gardner v. Loomis; ; commentary

FEDERAL STATUTESFEDERAL STATUTES

The Railway Labor Act of 1926The Railway Labor Act of 1926 The National Labor Relations Act of The National Labor Relations Act of

1935 (NLRA) 1935 (NLRA) The Labor Management Relations Act of The Labor Management Relations Act of

1947 (LMRA)1947 (LMRA) The Fair Labor Standards Act of 1938 The Fair Labor Standards Act of 1938

(FLSA)(FLSA) The Labor-Management Reporting and The Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA)Disclosure Act of 1959 (LMRDA) Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964

as amended in 1972 and 1991.as amended in 1972 and 1991.

FEDERAL STATUTES (Cont’d)FEDERAL STATUTES (Cont’d) The Age Discrimination in Employment Act of The Age Discrimination in Employment Act of

1967 as amended (ADEA).1967 as amended (ADEA). The Occupational Safety and Health Act of 1970 The Occupational Safety and Health Act of 1970

(OSHA).(OSHA). The Employment Retirement Income Security Act The Employment Retirement Income Security Act

of 1974 (ERISA).of 1974 (ERISA). The Worker Adjustment and Retraining The Worker Adjustment and Retraining

Notification Act of 1988 (WARN).Notification Act of 1988 (WARN). The Americans with Disabilities Act of 1990 The Americans with Disabilities Act of 1990

(ADA).(ADA). The Family and Medical Leave Act of 1993 The Family and Medical Leave Act of 1993

(FMLA).(FMLA). The Uniformed Services Employment and The Uniformed Services Employment and

Reemployment Rights Act of 1994.Reemployment Rights Act of 1994. GINA (2008)GINA (2008)

STATE LAWSTATE LAW

Employment-at-willEmployment-at-will ““Right-to-work” and other state labor Right-to-work” and other state labor

lawslaws Contract and tort lawContract and tort law Workers’ CompensationWorkers’ Compensation State discrimination lawsState discrimination laws

EARLY ATTEMPTS TO STOP EARLY ATTEMPTS TO STOP UNION ACTIVITYUNION ACTIVITY

Criminal conspiracyCriminal conspiracy Yellow-dog contracts and contractual Yellow-dog contracts and contractual

interference doctrineinterference doctrine Antitrust lawsAntitrust laws

Sherman ActSherman Act Clayton ActClayton Act

Determining Which Employment Determining Which Employment Laws ApplyLaws Apply

Public (government) sector or private Public (government) sector or private sector employment?sector employment?

Unionized or non-union workplace?Unionized or non-union workplace? How many employees?How many employees? What is the geographic location?What is the geographic location? Does the firm do government Does the firm do government

contracts?contracts? What type of industry or occupation?What type of industry or occupation?

Procedures for Enforcing Procedures for Enforcing Employment LawsEmployment Laws

What options does an employee have?What options does an employee have? Does the employee have the right to Does the employee have the right to

bring a private cause of action?bring a private cause of action? Where must it be brought? How quickly?Where must it be brought? How quickly? Is there an administrative prerequisite?Is there an administrative prerequisite? Must formal notice be given? How Must formal notice be given? How

quickly?quickly? Must the employee exhaust internal Must the employee exhaust internal

dispute resolution procedures first?dispute resolution procedures first?

Element:Element: A material factor; a basic A material factor; a basic

componentcomponent An essential requirement to a cause of An essential requirement to a cause of

action (the right to bring a lawsuit to action (the right to bring a lawsuit to enforce a particular right). enforce a particular right).

Each cause of action (negligence, breach Each cause of action (negligence, breach of contract, trespass, assault, etc.) is of contract, trespass, assault, etc.) is made up of a basic set of elements made up of a basic set of elements which must be alleged and proved. which must be alleged and proved.

Each charge of a criminal offense Each charge of a criminal offense requires allegation and proof of its requires allegation and proof of its elements. elements.

COURT SYSTEMCOURT SYSTEM

Highest CourtHighest Court

Intermediate Appellate CourtIntermediate Appellate Court

Trial CourtTrial Court

Minor CourtsMinor Courts

Trial CourtsTrial Courts

Superior Court/Circuit Superior Court/Circuit Court/District CourtCourt/District Court

Lawsuit/Complaint FiledLawsuit/Complaint Filed Determines Facts & LawDetermines Facts & Law

Appellate CourtsAppellate Courts

Review Review Questions Of LawQuestions Of Law

Consist Of 3 – 9 Consist Of 3 – 9 JudgesJudges

Federal CourtsFederal Courts

District CourtDistrict Court Federal Trial CourtsFederal Trial Courts

Special CourtsSpecial Courts Court of AppealsCourt of Appeals

There are 13 U.S. Courts of AppealThere are 13 U.S. Courts of Appeal The Supreme CourtThe Supreme Court

Highest Court of the LandHighest Court of the Land Writ of certiorariWrit of certiorari

Federal Judicial SystemFederal Judicial SystemFederal Judicial SystemFederal Judicial System

PartiesParties

Plaintiff v. DefendantPlaintiff v. Defendant Counterclaim- Counterclaim- Counterplaintiff v. Counterplaintiff v.

CounterdefendantCounterdefendant

Appellant v. AppelleeAppellant v. Appellee Petitioner v. RespondentPetitioner v. Respondent Third-Party DefendantThird-Party Defendant

FINDING COURT DECISIONSFINDING COURT DECISIONS

Lexis-Nexis Clayton State Library

READING CITATIONSREADING CITATIONSState Court:State Court:

Eckhart v. Yerkes Regional Primate Center,Eckhart v. Yerkes Regional Primate Center,

254 Ga. App. 38, 561 S.E.2d 164 2002 Ga. App. LEXIS 253 254 Ga. App. 38, 561 S.E.2d 164 2002 Ga. App. LEXIS 253 (2002)(2002)

(Regional) (National) (Lexis Nexis) (Regional) (National) (Lexis Nexis) (Year)(Year)

READING CITATIONSREADING CITATIONS

Federal CourtFederal Court

Wilson v. Southwest AirlinesWilson v. Southwest Airlines,,

517 F.Supp. 292, 1981 U.S. Dist. LEXIS 12979 (D.N.TX. 517 F.Supp. 292, 1981 U.S. Dist. LEXIS 12979 (D.N.TX. 1991)1991)

(Federal Supplement) (Lexis Nexis) (Location, (Federal Supplement) (Lexis Nexis) (Location, Year)Year)

READING CITATIONSREADING CITATIONS

Vaughn v. Edel,Vaughn v. Edel,

918 F.2d 517, 1990 U.S. App. LEXIS 20947 (5th Cir. 918 F.2d 517, 1990 U.S. App. LEXIS 20947 (5th Cir. 1990)1990)

(Federal Reporter) (Lexis Nexis) (Circuit (Federal Reporter) (Lexis Nexis) (Circuit Year)Year)

READING CITATIONSREADING CITATIONS

McDonald v. Santa Fe Trail McDonald v. Santa Fe Trail TransportationTransportation,,

427 U.S. 273, 96 S. Ct. 2574; 49 L. Ed. 2d 493; 1976 U.S. LEXIS 8; 427 U.S. 273, 96 S. Ct. 2574; 49 L. Ed. 2d 493; 1976 U.S. LEXIS 8; (1976) (1976)

(United States (Supreme Court (Lawyers’ Edition (Lexis Nexis) (United States (Supreme Court (Lawyers’ Edition (Lexis Nexis) (Year) (Year)

Reports) Reporter) of SupremeReports) Reporter) of Supreme

Court Reports)Court Reports)

The Role of ManagersThe Role of Managersin Legal Compliancein Legal Compliance

To recognize, analyze and deal effectively To recognize, analyze and deal effectively with employment law issues.with employment law issues.

To put in place sound policies and To put in place sound policies and practices that PREVENT legal problems practices that PREVENT legal problems from arising in first place .from arising in first place .

To enforce compliance with established To enforce compliance with established law and develop strategies for dealing with law and develop strategies for dealing with legal issues that are not clear.legal issues that are not clear.

To know when to seek legal counsel.To know when to seek legal counsel.

Employment at Will Employment at Will 11

The starting point for any analysis or The starting point for any analysis or discussion of U.S. employment law is discussion of U.S. employment law is the “the “Employment at Will” doctrine. ” doctrine.

Many people mistakenly believe that Many people mistakenly believe that they cannot be fired as long as they they cannot be fired as long as they are doing a good job, but this is not are doing a good job, but this is not true.true.

Employment at Will Employment at Will 22

RuleRule: An employee can quit at any time : An employee can quit at any time for any reason or no reason at all.for any reason or no reason at all.

RuleRule: An employer can fire an employee : An employer can fire an employee at any time for any reason or no reason at any time for any reason or no reason at all, except for reasons prohibited by at all, except for reasons prohibited by law.law. In both cases, if the parties’ relationship is In both cases, if the parties’ relationship is

governed by a contract, the contract controls.governed by a contract, the contract controls. ExampleExample : employment contracts of managers : employment contracts of managers

& others; union collective bargaining & others; union collective bargaining agreements (CBAs) agreements (CBAs)

The Doctrine of Employment at Will has The Doctrine of Employment at Will has survived because of:survived because of:

The Doctrine of Mutuality of The Doctrine of Mutuality of ObligationObligation

ConsiderationConsideration

Limitations to Employment at WillLimitations to Employment at Will

Tort law: Public PolicyTort law: Public Policy

Contract lawContract law

Good Faith and Fair DealingGood Faith and Fair Dealing

The Public Policy Exception falls The Public Policy Exception falls into 3 Categoriesinto 3 Categories

The refusal to commit an unlawful The refusal to commit an unlawful act.act.

The performance of an important The performance of an important public obligation.public obligation.

Exercising a right or privilege.Exercising a right or privilege.

Contract TheoriesContract Theories

Implied contractImplied contract

Oral contractOral contract

Promissory estoppelPromissory estoppel

Duty of Good Faith & Fair DealingDuty of Good Faith & Fair Dealing

Examples of “bad” faithExamples of “bad” faith

Depriving employee of an accrued or Depriving employee of an accrued or about to accrue right.about to accrue right.

Employer’s policies require some Employer’s policies require some notice or a procedure.notice or a procedure.

Employer’s outrageous conduct.Employer’s outrageous conduct.

SeeSee

Eckhardt et al. v. Yerkes Regional Eckhardt et al. v. Yerkes Regional Primate Center,Primate Center,

254 Ga. App. 38, 561 S.E.2d 164, 254 Ga. App. 38, 561 S.E.2d 164, 2002 Ga. App. LEXIS 253 (2002)2002 Ga. App. LEXIS 253 (2002)

Introduction to Wrongful DischargeIntroduction to Wrongful Discharge

Judgments for wrongful discharge Judgments for wrongful discharge becoming more frequentbecoming more frequent Compensatory damages – given to Compensatory damages – given to

compensate party for direct losses due compensate party for direct losses due to injuryto injury

Punitive damages – given to punish Punitive damages – given to punish wrongdoers and to deter similar conduct wrongdoers and to deter similar conduct in the futurein the future

Constructive discharge – employer Constructive discharge – employer creates environment in which creates environment in which employee has no option but to leaveemployee has no option but to leave

Other Wrongful Other Wrongful DischargeDischarge

Based on tort liabilityBased on tort liability Tort – violation of a duty other Tort – violation of a duty other

than under a contractthan under a contract Result of intentional and Result of intentional and

outrageous behavior of employer outrageous behavior of employer that causes emotional distress to that causes emotional distress to employeeemployee

May be limited by workers’ May be limited by workers’ compensation lawscompensation laws

May arise from defamation of May arise from defamation of employee or wrongful invasion of employee or wrongful invasion of privacyprivacy

ProblemsProblems

#1 #1 Tom was an insurance inspector. He had Tom was an insurance inspector. He had excellent credentials & a secure future with the excellent credentials & a secure future with the Maryland Insurance Company. The Pennsylvania Maryland Insurance Company. The Pennsylvania Insurance Company was expanding its Insurance Company was expanding its department, and was eager to hire someone with department, and was eager to hire someone with Tom’s background. They made him an “offer he Tom’s background. They made him an “offer he couldn’t refuse:” a significant increase in salary, a couldn’t refuse:” a significant increase in salary, a new company car every year, and the promise new company car every year, and the promise that he would be a manager in two years. Tom that he would be a manager in two years. Tom left Maryland & took a job with Pennsylvania. left Maryland & took a job with Pennsylvania.

A few months after Tom joined A few months after Tom joined Pennsylvania, problems began to develop with his Pennsylvania, problems began to develop with his supervisor, Mike. Tom felt that Mike resented the supervisor, Mike. Tom felt that Mike resented the fact that he (Tom) was obviously more fact that he (Tom) was obviously more knowledgeable in their field, and consequently, knowledgeable in their field, and consequently, constantly criticized and corrected everything Tom constantly criticized and corrected everything Tom did. Mike felt that Tom repeatedly ignored did. Mike felt that Tom repeatedly ignored company procedures, and Mike’s requests to do company procedures, and Mike’s requests to do the work properly. Tensions grew, and 8 months the work properly. Tensions grew, and 8 months

after he was hired, Tom was fired by Mike.after he was hired, Tom was fired by Mike.

Pennsylvania Insurance Company publishes a Pennsylvania Insurance Company publishes a personnel manual that is given to supervisors only. It personnel manual that is given to supervisors only. It details the steps that must be followed to terminate an details the steps that must be followed to terminate an employee. If the employee’s work is unsatisfactory, he employee. If the employee’s work is unsatisfactory, he must first be given an informal warning. He is placed on must first be given an informal warning. He is placed on probation for 3 months, during which time his supervisor is probation for 3 months, during which time his supervisor is to work with him to help him improve his work. If there is to work with him to help him improve his work. If there is no improvement, he can be dismissed. Mike failed to follow no improvement, he can be dismissed. Mike failed to follow these procedures before terminating Tom.these procedures before terminating Tom.

Tom plans to sue Pennsylvania for wrongful Tom plans to sue Pennsylvania for wrongful discharge. Will he be successful? He admits that while he discharge. Will he be successful? He admits that while he was employed at Pennsylvania, he was unaware of the was employed at Pennsylvania, he was unaware of the personnel manual and the procedures for dismissal.personnel manual and the procedures for dismissal.

#2 Female employees at Smith Co. were finding #2 Female employees at Smith Co. were finding messages in their mailboxes that were suggestive, messages in their mailboxes that were suggestive, demeaning, and even a little threatening. The notes were demeaning, and even a little threatening. The notes were handwritten, but no one could recognize the handwriting. handwritten, but no one could recognize the handwriting. About this time Leo left to go on a 2 week vacation. When About this time Leo left to go on a 2 week vacation. When he returned he was told that he was being terminated. he returned he was told that he was being terminated. During his absence, a handwriting expert was brought in During his absence, a handwriting expert was brought in and identified the handwriting in the notes as being Leo’s. and identified the handwriting in the notes as being Leo’s. Leo vehemently denied this, and asked for a chance to Leo vehemently denied this, and asked for a chance to vindicate himself. The company refused, and told him to vindicate himself. The company refused, and told him to leave immediately. Is there any basis upon which Leo can leave immediately. Is there any basis upon which Leo can

bring suit against Smith?bring suit against Smith?

What Would You Do?What Would You Do? An employee has been repeatedly An employee has been repeatedly

late to work, and has had several late to work, and has had several disagreements with his supervisor. disagreements with his supervisor. Although his work is superior, these Although his work is superior, these problems continue over the course of problems continue over the course of two weeks, and grow worse. As two weeks, and grow worse. As Human Resources Manager, what Human Resources Manager, what should you do? should you do?