Employment Law in a Nutshell
Authors:
Covington, Robert N. / Seiner, Joseph A.
Edition:
5th
Copyright Date:
2022
16 chapters
have results for employment law
Chapter 1. The Developing Law of Employment 55 results (showing 5 best matches)
- “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
- 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:
- American law regulates the employment relationship in various ways. The most common methods involve individual employment contracts, the application of constitutional, tort, and contract doctrines, and a range of statutory regulation on such issues as the right to organize and negotiate
- 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.
- In addition, much of the control over employment matters is found in sources many would not think of as law at all: individual employment contracts and collective (union management) bargaining agreements. These often provide for interpretation and enforcement by private arbitrators, and only limited judicial review is available.
- Open Chapter
Chapter 2. Forming and Terminating the Employment Relationship 82 results (showing 5 best matches)
- 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.
- 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.
- Employment Law Nutshell
- Whatever its philosophic basis, the concept that employment is at will continues to exert a powerful influence on American law. Three specific rules that flow from this concept are particularly important:
- Open Chapter
Chapter 4. Discrimination 58 results (showing 5 best matches)
- 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.’ ” decision, since that was announced on June 5, 1989. The majority there would have required a plaintiff who wished to prove that an employer was discriminating by showing that it refused to employ a less discriminatory alternative employment practice to show also that the alternative practice would be “equally effective” in achieving the employer’s goals. The statute does not, however, provide further guidance about just what the law may have been on this score on June 4, 1989.
- 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.
- Roughly half the states had enacted what were then known as “fair employment practices acts” before the Congress passed the Civil Rights Act of 1964. Since then, these laws have become even more common, so that discrimination based on race, religion, gender, and national origin is banned by state statute almost everywhere. Most state statutes track the federal statute both in substance and in procedures, at least to some degree, but a number apply to small employers not subject to Title VII. Many also cover conduct not subject to Title VII. A large number of states ban employment discrimination based on marital status.
- 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.”
- The first of the Civil Rights Acts was passed the year following the close of the Civil War. Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, was reenacted in 1870 to reflect the 1868 adoption of the Fourteenth Amendment, and then split into two parts by later codifiers. The portion relevant to private sector employment law is now
- Open Chapter
Chapter 9. Employment Law Remedies 24 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.
- ) 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 . (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...
- Open Chapter
Chapter 8. Individual Rights in the Collective Rights Context 37 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 ...FAA, so that he must submit a claim under the Age Discrimination in Employment Act to...
- discriminate in hiring, “tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization”;
- 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.
- 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
- Congress passed the Federal Service Labor-Management and Employee Relations Law as part of Title VII of the Civil Service Reform Act of 1978. , 7511–7514. This Act states that unionization and collective bargaining by federal employees is in the public interest, and grants statutory protection to federal employee bargaining rights to safeguard that interest and to facilitate “amicable settlements” over conditions of employment. The Act grants rights to “employees” of the federal executive branch who are employed by an agency or who have ceased to work for any agency because of unfair labor practices and have not yet obtained substantially equivalent employment. The Act excludes non-citizens who work outside the United States, armed forces personnel, supervisors, management officials, certain members of the Foreign Service, and any person who participates in an illegal strike. An agency may be excluded from the Act by presidential order if it is determined that the agency’s primary...
- Open Chapter
Chapter 3. Employee Dignity, Privacy, and Reputation 66 results (showing 5 best matches)
- State laws that regulate medical testing are particularly varied. Laws requiring testing may not be fully preempted by the ADA, but that statute will control the time when the test is to be administered to protected individuals, requiring the test to be given after the offer of employment has been made. . GINA provides that it does not preempt state laws that are more protective of employees.
- 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
- Many legislatures and courts have found reasons to limit employer intrusion into private areas. These enactments and decisions seek to control the use of irrelevant, inaccurate, or incomplete facts to make employment decisions; and to regulate disclosure of employment information to third parties. They tend to focus mainly on five areas:
- 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.
- 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
- Open Chapter
Title Page 3 results
Outline 18 results (showing 5 best matches)
Center Title 1 result
Preface 6 results (showing 5 best matches)
- Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status;
- 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:
- 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,
- Open Chapter
Chapter 5. Physical Safety 53 results (showing 5 best matches)
- The statute is thus broadly written, but there are limits. For one thing, Congress has frequently restricted the power of the Department of Labor to inspect farms and some businesses employing small numbers of workers, in riders to appropriations bills. Also, OSHA does not modify or displace other federal laws prescribing safety and health standards. It does not affect any federal or state worker’s compensation law or the rights, duties, or liabilities of employers or employees under any law relating to injuries, diseases or death, arising out of employment.
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
- The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
- 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
- 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.
- Open Chapter
Index 32 results (showing 5 best matches)
Chapter 7. Pensions and Other Employee Benefit Programs 40 results (showing 5 best matches)
- 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,
- 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 . 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 The majority emphasized the practical difficulties such a state law might cause for a plan administrator: The administrator could not act in reliance on plan documents in deciding whether to pay a claim. . Most recently, the Court found that a state law requiring health insurers to submit claim payment data to a state health agency could not be applied to an insurer providing employment-based health coverage. The federal agencies...
- 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.
- instead of at the “full benefit” retirement age, that worker will receive a monthly check that is reduced by up to 30 percent. A worker who does not claim benefits at full benefit retirement age but continues working, on the other hand, will receive an increased monthly benefit check when she finally applies. Some particularly controversial adjustments involve reducing the amount of Social Security benefits payable because of other income. A worker under full retirement age who is otherwise entitled to benefits loses $1 of retirement benefits for each $2 earned, for example. There are also offsets for pension benefits for those who worked in employment not covered by Social Security, primarily government workers.
- Nothing in this [title] shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . [with two specific minor exceptions] or any rule or regulation issued under any such law. ERISA, § 514(d).
- Open Chapter
Chapter 6. Wage and Hour Regulation 15 results (showing 5 best matches)
- , 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. . In the meantime, the widespread unemployment of the time cast a new perspective on wage and hour laws. Minimum wage , in 1938. In passing the FLSA, however, Congress did not preempt the states’ ability to regulate employment as well, and to this day, state law plays an important role in protecting workers’ rights. State minimum wage laws in many states call for rates higher than the federal standard. This chapter reviews this federal and state legislation.
- 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.
- These are regulated by federal and state minimum wage laws and at times by “prevailing wage” requirements that apply to government contractors.
- Several federal and state statutes require employers to provide a number of nonwage benefits. These include workers’ compensation coverage, unemployment insurance, social security contributions, the Family and Medical Leave Act, and similar laws. Many of these programs do not apply to small employers, or the public sector.
- 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:
- Open Chapter
WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 14 results (showing 5 best matches)
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
- Professor of LawUniversity of Houston Law Center
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Professor of Law, University of Houston Law Center
- Professor of Law, Yale Law School
- Open Chapter
- 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.
