Employment Law in a Nutshell
Authors:
Covington, Robert N. / Seiner, Joseph A.
Edition:
5th
Copyright Date:
2022
18 chapters
have results for Employment Law in a Nutshell
Chapter 1. The Developing Law of Employment 109 results (showing 5 best matches)
- Any reader of this Nutshell needs to be aware that labor and employment law is constantly changing in content and emphasis. The volume of labor and employment law has increased markedly during the past century, so that those who practice it often remark about how little of what they do in 2022 would have been done by lawyers a generation earlier. The pace of change is not constant, of course. Since the 1980s, the United States has often experienced “divided government,” with one major party controlling the White House, another the Congress. This tends to slow the rate at which new programs can be formulated. Overall, however, the period since the end of the Second World War has been an active one in employment law. A brief listing of major developments makes this clear:
- This Nutshell’s chapters are primarily devoted to statutes, common law doctrines, and constitutional provisions that regulate the employment relationship directly, without regard to the presence or absence of a union. Individual rights and collective rights are inevitably bound up together, though, and thus there are occasional references to collective bargaining and one chapter that discusses a few fundamental rights of individuals guaranteed by NLRA and LMRA. In general, this Nutshell is organized by the employee interest affected, rather than by chronology or by statute. For example, regulation of child worker safety is treated in the chapter on physical safety rather than in the chapter on wage and hour legislation, even though the principal federal child labor statute is a section of the Fair Labor Standards Act (FLSA), , which is primarily a regulation of minimum wages and maximum hours.
- The rate of employment (most often reflected in reports of the unemployment rate) plays a central role in our economy. High unemployment rates mean lower consumer spending and saving, both essential to a healthy nation. Employee and employer ought to want each other to prosper, it would seem. After all, if the employer’s business does well, employees can often expect to share in that good fortune. Employers who find themselves with a disgruntled and unhappy workforce soon realize that productivity is down, and labor costs up. In practice, however, conflict between employee and employer is a constant feature of our economic system and social structure. A prospering business firm is likely to want to expand; to get the capital it needs for that, the firm may well try to trim its labor costs, perhaps by lay-offs accompanied by the use of temporary workers working at a lower rate of pay. In the current era, a large number of American employers continue to move production, and thus good...
- To introduce “employment law” to readers in a way that will give some notion of its breadth and complexity, this chapter first discusses the nature of the employment relationship and then provides a brief overview of the principal types of legal regulation.
- “Employment law” is a complex of federal and state controls. For the most part, employment law is essentially “new” law, even though much of it is based on principles that have been evolving for centuries. It is far from being stable and unchanging. Solutions to employment law issues are no more static than is employment itself. The pressure of economic, political, social, and personal interests on the ever-developing pattern of employment law cannot be over-emphasized. See . 1128 (1932). Historically, the law’s treatment of the employment relationship has combined status-based rules, rules that fix the obligations of employer and employee to another as a matter of law, with rights
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Chapter 2. Forming and Terminating the Employment Relationship 157 results (showing 5 best matches)
- has been widely cited and relied upon in judicial opinions, treatises, and journal articles, this text continues to use it as a source of widely accepted doctrine in this 5th edition of the
- Employment contracts are often referred to as “relational contracts,” agreements that establish what the parties usually expect to be an ongoing relationship. Other relational contracts include partnership agreements, most insurance contracts, and the membership agreements of labor organizations. In recent years, courts have become increasingly aware of how difficult it is to apply to these contracts the “traditional” doctrines of contract law. Those doctrines are largely based on a “bargain and exchange” model—like the purchase of a stereo—that may not always resemble the circumstances of employment. Trying to decide just when traditional contract principles should be modified in the employment context is not easy, either in theory or in the deciding of concrete cases. For the present, the soundest course to follow in analyzing an employment contract problem is to begin with a relatively mechanical “traditional” contract law approach. Having done so, one can then more easily decide...
- Historically, the law that governs the employment relationship has limited an employee’s ability to challenge an employer’s unfair, adverse, or damaging practices, including arbitrary firing. It has generally denied any redress to an employee who is arbitrarily treated, unless that employee is represented by a union or has rights under an explicit employment contract. The general rule has been that absent a statutory or contractual restriction, an employee or employer can terminate the employment relationship at any time, for any or no reason, with or without notice.
- “Plant shutdown” and “mass layoff” are terms of art that are carefully defined in the statute. “Plant closing” means the shutdown of a site, or of one or more facilities or operating units at a single site, that results in an “employment loss” for 50 or more employees.
- Termination has been called the “capital punishment” of the workplace. Being terminated may label one as a failure or unfit for employment. Because disputes over whether a contract of employment has been formed occur so often in the context of a dispute over firing, this chapter will focus first on the circumstances under which employees can be terminated and what statutes and common law rules are available to assist employees when a loss of work occurs. The doctrines that govern forming and modifying the employment contract will be discussed below, as they affect the outcome of cases involving the legality of discharge.
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 2002
- © 2017 LEG, Inc. d/b/a West Academic
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Chapter 4. Discrimination 141 results (showing 5 best matches)
- Despite the complexity of doctrine that has developed, the basic concept of “discrimination” is simple enough: one person or group of persons is treated differently from another person or group, either because of a personal characteristic, or because of conduct. When people are treated differently because of their conduct, the term “retaliation” is often used instead of discrimination. Much discrimination is benign. Selecting an experienced player as backup for a football team with a second-year quarterback seems logical to most of us, even though it may lead the team to pass over some very promising rookies. A law school that experiences a sudden need for a labor and employment law teacher is understandably more likely to look with favor on a person with NLRB experience than one coming from the Securities and Exchange Commission. Much discrimination, .... It is based on stereotyping or bias, with no reasonable basis. Moves to counter discriminatory attitudes by means of public law...
- A plaintiff may also win under the 1991 statute if she “makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the [employer] refuses to adopt such alternative employment practice.” Paragraph (C) then says that the “demonstration” referred to “shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of ‘alternative employment practice.’ ”
- Employment discrimination law has seen enormous changes over the past decades. This body of the law forbids employers, unions, and others to discriminate on the basis of such “protected characteristics” as age, race, color, religion, gender, national origin, and disability. In recent years, the more technical procedural manner in which these cases are litigated has been highly debated, including how the complaint in a particular case should be articulated.
- claims that an employer acted “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”
- Most employee protection statutes include a provision forbidding retaliation against persons who seek to enforce those laws. Many charges filed with the EEOC are either exclusively charges of unlawful retaliation, or combine a retaliation charge with other charges. A series of Supreme Court decisions have impacted this area. In , a male coach of a girls’ basketball team learned that the female teams were not receiving as much support as male teams. He protested this, and soon after the protest began to receive negative performance reviews and was relieved of his coaching duties. Title IX does not include an express retaliation provision, but a majority of the Court found that such a right of action is implied by the statute, and that it extends to those who protest against gender discrimination banned by the statute, even though they are not direct victims of that discrimination. involved retaliation claims by a woman employee whose complaints about improper job assignment and an...in
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Chapter 9. Employment Law Remedies 44 results (showing 5 best matches)
- Declaratory judgment actions are relatively rare in employment law, but the remedy is available for those cases in which both parties want to continue in a contract relationship but cannot agree on the meaning of the documents they have executed, and require an outside source to tell them what the employment contract means, and how one or more common law or statutory rules may affect performance under the contract. In recent years, it has become much more common to use a form of alternative dispute resolution process for this purpose, either mediation or arbitration.
- Alternative dispute resolution, such as arbitration and mediation, may impact the remedies available to workers. Litigants and attorneys must be cognizant of any such provisions in an individual employment contract or a collective bargaining agreement, as well as the current state and federal laws in this area.
- As earlier chapters have shown, each party to an employment relationship owes the other contract-based duties. The relationship itself is contractual in nature, even though finding the terms of the contract will often be a challenge. Oral promises, written promises in documents labeled “employment contract,” collective bargaining agreements, pledges in restrictive covenants, promissory language in employment handbooks and policies are all possible sources of claims of breach. There are a number of “implied” promises involved in many employment relationships also, such as an employee’s duty of loyalty. One area of controversy has to do with contract-based “fringe benefits,” discussed later in this chapter. See Section C.3.
- In the United States, the general rule is that the “prevailing party” in litigation is not entitled to recover attorneys’ fees unless (1) a contract provides for them (see, e.g., ) or (2) a statute authorizes this recovery. Among the employment law statutes that provide for attorneys’ fees are the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Vocational U.S.C. §§ 1988, 2000e–5(k). In most cases, only a party who obtains a judicial remedy that results in a change in legal rights and obligations is entitled to recover fees. . (That is not necessarily true when the defendant is the federal government. A conciliation agreement or change in agency position may be sufficient. See 5 U.S.C. § 552(a)(4)(E).) Attorneys’ fees may also be permitted as an element of punitive damages under common law litigation theories in some states. See
- Most employment law statutes provide explicitly what remedy is appropriate for that statute’s violation. These remedies may include back pay, front pay, benefits, reinstatement, attorneys’ fees, civil penalties, restitution, and so on. Many statutory remedies are ordinarily administrative, but like other administrative remedies they may receive judicial enforcement. The orders of the National Labor Relations Board, and the civil penalties and abatement orders authorized by OSHA fall into this category. Others, like the remedies under Title VII of the Civil Rights Act of 1964 are essentially “judicial,” although at times they may be awarded in arbitration. The purposes underlying statutory remedies vary, as one would expect, according to the nature of the statute. Remedies for violations of wage and hour laws are largely “make whole” in nature, designed to put into the worker’s hands the money he or she should have been paid in the first place. Those statutes will provide for... ...in...
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Chapter 8. Individual Rights in the Collective Rights Context 112 results (showing 5 best matches)
- et seq., is not a labor relations law as such. Arbitration under the Taft-Hartley Act is governed by principles developed under § 301 of that statute; the work of “boards of adjustment” is regulated by provisions of RLA. Certain cases decided outside the unionized workplace context have raised questions about how doctrines developed under the FAA might interact with those developed under these labor relations laws. In 1991, the Supreme Court decided that outside the collective bargaining context, a nonunion employee can waive the right to judicial review of statutory claims. The plaintiff in was required by the defendant, his employer, to register as a stockbroker with the New York Stock Exchange. The registration application included an agreement to arbitrate whenever required to do so under the Exchange’s rules, one of which provides for arbitration of employment disputes. The Court held ...agreement was enforceable under the FAA, so that he must submit a claim under the... ...in...
- There are critical differences between the enforcement of these awards and those in the private sector. Arbitral awards in many federal government employment cases are subject to review by the FLRA; the NLRB has no comparable power. Moreover, an objecting party may challenge the award both on grounds “similar to those applied by Federal courts in private sector” cases and also because the award “is contrary to any law, rule or regulation.” 5 U.S.C. § 7122(a).
- discriminate in hiring, “tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization”;
- The focus of this book is the individual employee’s rights, not collective action, a matter treated elsewhere in this Nutshell series. It is hardly surprising, however, to find that the rights of employees to engage in collective action have direct and significant impacts on the exercise of those individual rights. This chapter explores some of those impacts.
- In a unionized workplace, the terms and conditions of employment for those represented by the union are set not so much by individual negotiation as by collective bargaining of the union for the group. The rights that employees acquire in collective bargaining agreements are typically enforced through arbitration. The standards to be applied in deciding what issues can be arbitrated, and what arbitration awards can be enforced, are matters of federal law.
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Chapter 5. Physical Safety 194 results (showing 5 best matches)
- It is not necessary that an injury, to be compensable, occur in the course of employment, only that it “arise” there. If a disgruntled employee plants a bomb in his supervisor’s briefcase, and the bomb does not explode until the victim is at home in his study, the injury is nonetheless clearly one that “arose in the course” of the work. The converse is also true. If an employee brings a poisoned sandwich to work, poisoned by her scheming spouse, the fact that the harm manifests itself when the victim eats the sandwich while working at her desk does not make that an employment injury. Some statutes, however, include a provision creating a presumption that, if an injury arose in the course of employment, it arose out of that employment if the employee is unavailable or mentally unable to testify.
- To be compensable under the typical workers’ compensation statute, an impairment must result from an injury or disease that “arises out of and in the course of employment.” This language, while generally successful in redirecting attention away from notions of fault, has been the source of a substantial number of interpretation problems concerning how close the relationship between employment and injury must be.
- A second type of statute provides coverage for all those diseases which are attributable to the employment’s “nature,” or which can be said to “arise naturally from” the type of employment in which the
- In 1999, after long wrangling over how to pay for the measure, Congress passed the Ticket to Work and Work Incentives Improvement Act of 1999, 113 Stat. 1860 (1999). President Clinton, who had backed the legislation, signed it into law on December 17 of that year. Much of the law was aimed at making a return to work more appealing to persons receiving benefits under the Social Security Disability Insurance Program or the somewhat similar Supplemental Security Income program. Allowing persons who returned to work to retain Medicare coverage for a substantially longer period was one step. Another was to institute the “ticket to work” program. A person who is receiving either SSI or Disability Insurance benefits is eligible to take the ticket to any approved employment network or vocational rehabilitation agency in order to receive training, job referrals, and other services. Also, a person who is “using a ticket” and gets work will be able to postpone medical disability reviews in...
- A typical definition of “injury” in a workers’ compensation statute is “accidental injury or death arising out of and in the course of employment.” LHWCA, . The terms “accidental” or “by accident” have become less common in recent years, but this or similar language still appears in the majority of the statutes. One initial purpose of including an “accidental” component in the definition of injury was to exclude coverage of occupational diseases at a time when it was felt that this coverage would involve medical judgments too speculative. Now that virtually all states have provided for at least some occupational disease coverage, the main function of the words is to stress the requirement that an injury result from a cause that is rooted in the employment. The “by accident” requirement has caused difficulty for claimants in cases of “repeated trauma”; cases involving injury to internal organs when there has been no wounding or striking of the body; and some cases of psychological...
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Chapter 3. Employee Dignity, Privacy, and Reputation 199 results (showing 5 best matches)
- When employers disclose employment information to third parties, other interests are implicated. Statements made to an employer’s clients or in reference letters may cause embarrassment, may subject an employee to ridicule, or may have even more direct economic impact, by limiting future employment prospects.
- Finally, the EPPA states that any state or local law or collective bargaining agreement that either prohibits detector tests or is more restrictive of their use will not be preempted. . Thus, if a state law prohibits all use of polygraph testing in private employment, then testing pursuant to the limited exemptions or private employment would not be allowed. See
- Unless the public employer can demonstrate an overriding interest of vital importance requiring that a person’s private conduct and beliefs conform to those of the hiring authority, those cannot be the sole basis for denying public employment to that person. . Termination was not permitted in , where a white elementary school cafeteria manager transferred her son from a public high school to a private segregated one. A constitutionally protected interest existed in the education of her son and this conduct did not pose a threat of interracial dissension. Decisions about sexual practices are generally treated as private matters. In , cancellation of a teacher’s employment for immorality in allegedly ...violated the teacher’s privacy right. The case was more egregious because the employer had obtained information about the pregnancy improperly, from the teacher’s physician. Public employers cannot arbitrarily ask an applicant concerning private sex habits. Inquiries can only... ...an...
- One major problem in setting appropriate limits on employer inquiries is deciding what data is job-related. Employers have a legitimate need to know certain things about their employees, including their abilities, honesty, and prior employment histories. Keeping track of employee performance seems generally reasonable, depending on how it is done. Some employers want to know much more, and assert that everything about an employee is relevant to employment, that it is necessary to examine the “whole person” to determine whether employment suitability exists. Such an employer may want to know things such as whether the employee smokes
- Extending the restraints of the Fourth Amendment to government acting in the capacity of employer also enlarges the scope of inquiry into what constitutes special needs. What might seem a vague suspicion of theft when proffered as a justification for a search by police in the criminal context, may seem more substantial as justification for an inventory control scheme in the employment context. A similar change in the appropriate scope of analysis occurs with regard to analyzing what constitutes a reasonable expectation of privacy.
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Chapter 6. Wage and Hour Regulation 71 results (showing 5 best matches)
- Until the 1930s’ Great Depression, state legislatures were more active than the federal government in regulating working conditions. They were at times frustrated in this by decisions holding these regulations unconstitutional as limits on the “freedom of contract.” The decision in , striking down a law limiting bakery workers to 10 hours of work a day is a well-known example. The Court also struck down a series of minimum wage laws, generally laws applicable to women and young workers only. . These decisions were finally overruled in the 1930s. . In the meantime, the widespread unemployment of the time cast a new perspective on wage and hour laws. Minimum wage regulation was perceived as necessary for health, efficiency, and general well-being of workers and hour regulation as an important way to spread a scarce commodity: the opportunity to work. After several unsuccessful attempts to establish a comprehensive legislative scheme for wages and hours, Congress finally passed the...
- In recent years, there have been a number of executive orders issued that have impacted the employment relationship with respect to federal contractors. Though after providing obvious benefits, executive orders are subject to rescission by subsequent administrations. Practitioners in this area must remain cognizant of any such orders currently in effect, and comply accordingly.
- Contractors who supply goods and services to the federal government or to a variety of federally funded projects must comply with one or more other statutes in addition to the general wage and hour law:
- An action for damages may be brought either by an aggrieved employee under § 216(b) or by the Secretary of Labor under § 216(c). , (c). Once the Secretary brings an action, the individual employee’s right to sue is suspended. Class actions are possible under § 216(b), but only if the class member consents (sometimes this is described as an “opt in” class action). While these class actions resemble those brought under , there are differences. In either a or a action, recovery ordinarily includes both the amount of unpaid wages and also an equal amount as liquidated damages. Under the Portal-to-Portal Act, an employer who acted reasonably in good faith, believing his wage payments were in compliance with the law, may avoid the liquidated damages. In a action, a successful plaintiff may also be awarded a reasonable attorney’s fee. Whether punitive damages would ever be appropriate is a matter on which the lower federal courts are split. Contrast
- The Portal-to-Portal Act was enacted in 1947 to relieve employers from burdens imposed by several Supreme Court interpretations of the wage and hour laws.
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Chapter 7. Pensions and Other Employee Benefit Programs 148 results (showing 5 best matches)
- The Supreme Court has consistently given “relate to” a broad reading: “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” . In that case, the Court struck down portions of a New York anti-discrimination statute that would have required employers to provide disability benefits to pregnant employees as part of an ERISA-covered plan. The “reference to” language adds a concrete quality, indicating that if a state statute or common law doctrine refers explicitly to an employee benefit plan as such, it is likely preempted. In ...; he also sought damages for mental anguish and punitive damages. He did not seek any lost pension benefits, nor did his pleading require reference to any of the details of the pension plan, only to its existence and his potential eligibility. The action was allowed by the Texas courts, but thrown out by the Supreme Court because the Texas public policy in question was one that...a
- The Title II tax provisions, and similar provisions affording special treatment to employee benefits that appear elsewhere in the I.R.C. lie beyond the scope of this Nutshell, not only because of their subject matter but because the complexity of some of those provisions would require a volume at least the size of this one. It is nonetheless important to have a rough notion of the general nature of those provisions to understand how some of ERISA’s objectives are to be achieved. ERISA does not require that an employer offer any benefit whatever to its workers. These tax rules on employee benefits do, however, offer a “carrot” to employers to encourage them to establish certain types of plans. Take pensions, the principal subject of Title II, as an illustration. If the plan set up by an employer meets the standards of the tax code so that it constitutes a “qualified” plan, that employer is allowed to take a deduction for any money it pays into the pension trust fund in the year in...
- A handful of states require employers to participate in disability insurance systems. Some provide for maternity leave benefits greater than those under federal law. Some states enacted healthcare laws prior to the enactment of the Affordable Care Act. Many other benefits that employees enjoy, including free parking and discounts on employer products, are not mandated by law. They are based on the contract of employment, negotiated individually or through collective bargaining. Funding some of these benefits is made less expensive by favorable tax treatment by the Internal Revenue Code (I.R.C.). How these voluntary plans are structured and administered is regulated by several federal statutes, including the Employee Retirement Income Security Act of 1974 (ERISA), as amended,
- A third set of rules govern plan provisions that set the rate at which entitlements to pension benefits accrue. The general thrust of these is to require reasonable minimum accrual of benefit rights in the earlier years of employment, so that an employee with, for example, twenty years of service will not discover that he or she has accrued only a small percentage of a full pension.
- Before the enactment of ERISA, employee benefit plans were subject to only a handful of federal rules. They were also subject to a wide variety of state laws, ranging from common law fiduciary principles to detailed statutory insurance regulations. Employers with multi-state operations found that state-to-state differences often made it difficult to design benefit plans that could be the same company wide. Many commentators argued that the state laws were inadequate as safeguards for the employee beneficiaries. In particular, there were charges of inadequate funding of pensions, of mishandling of trust funds set aside to provide pension and other benefits, of capricious cancellation of benefit programs, and of arbitrary treatment of those seeking benefits. Public interest in the soundness of pension plans increased when thousands of workers at a Studebaker automobile manufacturing plant in Indiana discovered that their promised retirement benefits would not be paid because of...
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Preface 9 results (showing 5 best matches)
- Sadly, since the last edition of this work, my co-author on this book, Robert Covington, has passed away. He was a true scholar and wonderful colleague in the academic community, and his loss is felt by all in the labor and employment community. This edition is dedicated to his memory, and so much of this new edition still remains his primary work.
- In the five years that have passed between the fourth and fifth editions of this book, there have been transformative changes in the field of workplace law. While this book attempts to capture and frame these changes, this work is a snapshot in time as this area continues to evolve. This edition takes on a number of the most visible areas of change in workplace law, including:
- Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status;
- Changes in the field of harassment law and the impact of the #MeToo Movement;
- I would like to extend my many thanks to those at the University of South Carolina School of Law who have contributed to this edition (as well as the prior edition of this work). In particular, I would like to thank my many wonderful research assistants at the University of South Carolina School of Law, including Megan Clemency, Arden Lowndes, Elliot Condon, Emily Rummel, Chelsea Evans, Matthew Abney, Alex Glunt, Erin Suzanne Johnson, Mallory Clamp, . The book also benefited from the wonderful assistance of Vanessa L. McQuinn and Shannon Palmore. I would also like to highlight the extraordinary efforts of Inge Kutt Lewis, whose substantial assistance greatly helped in putting this work together.
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WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 15 results (showing 5 best matches)
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in Law Emerita Michael E. Moritz College of Law, The Ohio State University
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Robert A. Sullivan Emeritus Professor of Law
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
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Table of Cases 20 results (showing 5 best matches)
- Publication Date: March 11th, 2022
- ISBN: 9781636593838
- Subject: Employment Law
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a discussion of the many changes in harassment law and the impact of the #MeToo movement, a look at the recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status, an examination of the trend toward a more virtual economy and platform-based work, and a description of the changes in how employees work, and the terms of that work, in the face of an ongoing health pandemic.
