A Short & Happy Guide to Employment Law
Author:
Juliano, Ann C.
Edition:
1st
Copyright Date:
2024
17 chapters
have results for employment law
Chapter 9. Security of Employment 28 results (showing 5 best matches)
- employment may still be at-will employment and those at-will employees have no protectable property interest in employment. To demonstrate a protectable interest, employees will need to look to state law (if a state employee) or an implied contract. However, the mere fact that there is a written document pertaining to employment does not mean there is a property interest. For example, a collective bargaining agreement which requires that the employer has a reason for terminating employment does not transform the at-will employment to a property interest. This determination is very fact specific and will turn on the state law and facts of the workplace.
- The final contract law doctrine to consider is the covenant of good faith and fair dealing. Good faith and fair dealing obligates each party in a contract to refrain from injuring in any way the other’s right to receive the benefits of the contract. As a matter of general contract law, this covenant is well accepted. However, It is far less accepted in employment law.
- As is clear from Chapter 4, the anti-discrimination laws (both federal and state) place restrictions on employers’ reasons to terminate employment. As a reminder, for a basis covered in an anti-discrimination statute such as race, religion, age, disability status, sex, veteran status, the employer cannot terminate employment
- Employers may also restrict themselves through an oral employment contract. An explicit oral statement by the employer of job security will suffice. However, such statements must be clear and unequivocal to overcome presumption of employment-at-will (i.e., it must be more than the employer flattering an employee to keep them around). Of course, the employee must demonstrate the traditional contract law elements—promise made, enforceable promise, breach, and damages. In the case of oral contracts, some courts require that the employee must provide additional consideration beyond continued employment to clarify the intent of the parties. Another often litigated issue is the question of what language creates a just cause restriction on the employer. Some courts have found language such as “acceptable sales performance” is not enough to create a just cause standard. But other courts have found “meets sales targets” to restrict the reasons an employer may terminate employment.
- Finally, recall from Chapter 8 that many states have passed “lifestyle” laws that prohibit employers from terminating employment for employees’ legal actions outside of the workplace and working hours. For example, you can’t fire someone in Illinois because they are a smoker or fire someone in New York because they go skiing on the weekend.
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Chapter 1. Employment Law 11 results (showing 5 best matches)
- Employment law truly is about resolving this conflict between employers and workers. What the employer do? What may the workers do? This balance of interests is constantly shifting and evolving. Employment law always has to respond to new developments. Think of all the employment issues which arose during the COVID-19 pandemic or the still evolving issues surrounding the legalization of cannabis. We can only imagine what will come next!
- The starting place for employment is the doctrine known as “employment at will.” The (almost cliché) description of employment at will is that an employer may fire an employee for a good reason, a bad reason, or no reason at all (just not a prohibited reason). Conversely, an employee may quit for a good reason, a bad reason, or no reason. This doctrine, in American law, is attributed to a fellow named Horace Wood. In a treatise written in the late 1800s, old Horace declared: “[w]ith us the rule is inflexible, that a There is some question as to whether Horace accurately reported the state of the law at the time. Regardless, this statement quickly became the law of the land.
- Chapter Nine, Ten, and Eleven cover the end of the employment relationship. Chapter Nine sets forth the restrictions on the employer’s ability to terminate employment from statutory restrictions to constitutional law to contract and tort law. Chapter Ten discusses the obligations of employees during and after employment. Non-compete agreements (another ever evolving issue) and trade secrets fall on the employee side of the obligations. Chapter Eleven turns to the post-employment obligations of employers, including unemployment insurance. Finally, Chapter Eleven discusses employer obligations for retirement, including pensions and the federal statutory requirements. This book ends with a brief overview of arbitration
- Understanding the rights of workers and the rights and obligations of employers involves an overlapping system of federal, state, and local laws. If the workplace is a public employer, the U.S. Constitution is involved as well. It’s a lot, people. Although there are many federal employment laws, much about these issues are resolved by state law. This book cannot provide a comprehensive overview as to how all of these issues are resolved in every state or it would be need to be named “The Long & Overwhelming Guide to Employment Law.” Another important source of rights and duties in the workplace are collective bargaining agreements. This Short & Happy guide does not address the area of collective action in the workplace but rather focuses on the rights and duties of employers and individual workers.
- Our society tries to accomplish many things through our employment laws. It’s a never-ending balancing act between allowing employers to manage their business as they wish and providing protection for societal values. The anti-discrimination laws limit the employer’s ability to hire (or fire). Contract and tort law also restrict that ability. We require the employer to take action to protect worker safety and to provide for workers when they are injured due to the job. Employer provided health care is a seemingly never-ending battle. It may appear that the law expects too much of employers or it may seem that not enough is provided for workers, depending of course on your personal views.
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Chapter 4. Discrimination 58 results (showing 5 best matches)
- Employment Discrimination is often what many people think of when they think about Employment Law. The doctrine in this area is pretty complex—it could be its own book! This chapter will give you an overview of the federal statutes and frameworks in the area of Employment Discrimination. Types of claims covered in this chapter include racial discrimination, religious discrimination, sex discrimination, age discrimination, disability discrimination, retaliation, and harassment. This chapter is just an overview of employment discrimination, so please know that many nuances and details are not discussed in this chapter.
- In most courses, you will focus on the “Big Three” anti-discrimination statutes: Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). Title VII prohibits employers from taking actions “because of” an employee’s race, color, religion, national origin, and sex. The ADEA prohibits actions taken “because of” age against someone at least 40 years old. The ADA prohibits actions against “qualified , which prohibits discrimination because of race in the creation and enforcement of contracts (including employment contracts). But remember, as with all other parts of Employment Law, states and cities also have anti-discrimination laws. These laws may have additional protected classes or different definitions for which businesses count as employers. As always, make sure to check the state and local laws!
- The PWFA only applies to accommodations and does not replace laws that are more protective of pregnant workers. Covered employers are private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.
- Even though the statutes use the word “discrimination,” courts have interpreted this language to require the plaintiff to have suffered an adverse employment action. “Ultimate employment actions” will certainly suffice—not being hired, getting fired, denied a promotion—but they are not the only way to satisfy this requirement. A transfer might be an adverse employment action, depending on the details (was there a loss of pay? benefits? opportunity for trainings?). For example, working longer hours for the same pay has been considered an adverse employment action.
- Each of the three main statutes prohibits discrimination in “terms, conditions or privileges of employment.” Courts interpreted this language to prohibit conduct when it alters terms and conditions of employment because of the employee’s sex, race, age, disability status, etc. Harassment claims fall into two categories: with a tangible employment action (known as “ ”) and without a tangible employment action (known as a “
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Chapter 7. Workplace Safety and Compensation 21 results (showing 5 best matches)
- Workers’ compensation systems are based in state law and act to provide set benefits to injured workers and protect employers from large tort judgments. To recover, an injured worker must have sustained the injury in course of employment and arising out of employment. Employees who are injured as a result of violating a reasonable employer safety rule will be excluded from coverage.
- At least one court found that the anti-retaliation provisions of the state law at issue did not protect applicants for employment.
- arise out of employment
- As with much of employment law, this is dependent on state law. However, in most states, holding workers’ compensation insurance is mandatory for most employers and the definition of employer is very broad. To use Pennsylvania as an example, “employer” is defined as an employer that employs at least one worker who could be injured or develop a work-related disease in the state or in some way connected with the state.
- injuries and occupational diseases must have occurred in the course of employment and arising out of employment. An occupational disease is a disease that is peculiar to the employee’s occupation.
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Chapter 13. Arbitration 9 results (showing 5 best matches)
- Why spend any time talking about arbitration in a book about Employment Law? Because, by many estimates, at least 60 million employees work under a clause that compels them to take any employment disputes to binding arbitration. Most of these employees did not negotiate for the arbitration clause. Instead, the clause was simply part of the employment agreement or in the employment handbook. Employers (and employees) favor arbitration because it is quicker and cheaper than litigation. However, many employees feel arbitration is skewed in favor of employers because of lack of transparency, restrictions on collective actions, and potential bias. And keep in mind that a clause requiring binding arbitration means that employees lose the ability to go to court to resolve an employment dispute, limiting their legal recourse and rights.
- Finally, the Supreme Court found that the FAA preempted a California state law which prohibited arbitration of employment claims brought under the California Private Attorney General Act (“PAGA”). The Ninth Circuit reached a similar decision, finding that the FAA preempted California’s law criminalizing the use of mandatory employee arbitration agreements.
- which embodies a strong policy in favor of arbitration. If the FAA had a vibe, it would be “we love arbitration!” For years, there was some confusion as to whether the FAA applied in the employment context because there is an exception in the statute for certain workers. Specifically, Section 1 states “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Hmmm, what does this mean? Well, the Supreme Court has some thoughts.
- Arbitration in Employment Disputes
- didn’t involve an employment contract, however. The Court reached that issue in . In this case, the Court interpreted the “contracts of employment” language quoted above. It held that this exception only applied to people working in interstate transportation. Although this may seem like a nice, straightforward answer, it didn’t completely resolve all of the questions. You can imagine there are questions of what counts as working in Interstate transportation or being a “transportation worker.” Does a taxi driver who takes someone from Manhattan to New Jersey count as an interstate transportation worker? Courts are still sorting through these issues.
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Chapter 10. Obligations of Employees 14 results (showing 5 best matches)
- As with much of employment law, this area is governed by state law (unless there is some conflict with federal patent law). However, most states have adopted the Uniform Trade Secrets Act (“UTSA”).
- Contractual obligations may arise from express or implied terms. Express terms typically include the duration of employment, the job responsibilities, the salary, and the amount of notice required to terminate employment. As you may recall from your Contracts class, there are conditions which excuse nonperformance of contracts and these may apply as well in employment contracts. One of the most common reasons is illness. However, if the illness is caused by the nonperforming party or the condition was foreseeable when contract was entered, then the nonperformance is not excused. Other conditions include:
- new venture. State law generally distinguishes between preparations to leave and active competition. It’s the difference between “Just wanted you to know I’m leaving next week” and “I’m starting my own salon. You should come with me!” Courts look to the nature of the employment relationship, the impact of the employee’s actions on the employer’s operations, and the benefits promised to co-workers to jump ship. Courts disagree as to whether solicitation of at-will employees may be a breach of this duty of loyalty. If this duty is breached, the disloyal employee may be liable for the compensation they earned during the breach.
- Employees have obligations to their employers during, and in some cases, after employment. These obligations may arise from contracts or from statutes. The overarching theme is that the employee has a duty to protect the employer’s interest.
- So, the formula for Coca-Cola is a trade secret but so might be the special process for those perfect highlights. General knowledge and skill an employee acquires during employment is not a trade secret; nor is anything commonly known in the industry.
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Chapter 3. Becoming an Employee 17 results (showing 5 best matches)
- Now, if an employer chooses to place ads for the jobs, another set of legal considerations arise. One new development in employment law involves salary transparency requirements. A number of states have enacted laws that require employers to include the salary range in job postings. The salary or hourly wage should be that which the employer reasonably expects to pay for the position advertised.
- Where are the ads placed? How are they worded? Federal and state statutes prohibit discriminatory employment ads. A company cannot advertise for a “sales today’s world of internet algorithms and online job sites, employers may also run afoul of the law if job ads are posted in a way to limit the audience and screen out certain groups of people who are protected under the anti-discrimination in employment statutes (more about this in the next Chapter). For example, only showing Facebook ads to recent college graduates could be a violation of the Age Discrimination in Employment Act.
- Finally, the Americans with Disabilities Act (“ADA”) explicitly discusses pre-employment medical inquiries or tests. Employers are allowed to condition offers of employment on the results of a medical exam but only if all applicants are required to take the exam and if the results are kept confidential. Further, the ADA explicitly removes drug screenings from this requirement.
- Recall from Chapter 1 that “at-will” employment means the employment may be ended at any time, by either the employer or the employee, for any reason as long as it isn’t an unlawful reason.
- Despite state law playing a large role in governing the screening process, federal law is relevant in a few ways. First, when the federal government is acting as an employer, the Supreme Court held that reasonable, employment-related inquiries that further the government’s interest in managing its internal operations do not violate any right to privacy.
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Chapter 6 Healthcare 15 results (showing 5 best matches)
- As with so many topics in Employment Law, the area of healthcare is a mishmash of multiple overlapping federal statutes, state laws, and private employer benefits. Let’s address each federal statute on its own.
- The Affordable Care Act (“ACA”) (technically the Patient Protection and Affordable Care Act of 2010), also known as Obama Care, has many, many, MANY provisions. However, much of these do not relate to Employment Law so we are going to set those aside in the interest of staying Short and Happy.
- To understand the intricate landscape of healthcare and employer benefits, you must consider the various federal statutes and private employer benefits separately. Federal statutes like ERISA, ADA, and FMLA outline both the employer and employee obligations owed to one another in order to reap the benefits and coverage of the laws. In your studies of Employment Law, keep in mind the various legal frameworks and obligations and always ask “who is covered?” under the various statutes. Additionally, pay close attention to any exceptions or carve-outs in the statutes.
- Everyone has heard of HIPPA (the Health Insurance Portability and Accountability Act). HIPAA is the reason you have to sign all those papers when you have a doctor’s visit. To focus on the Employment Law aspects, HIPAA regulates how a covered health plan shares information with your employer or with others (which they cannot do unless you agree), as well as prevents exclusions for pre-existing conditions. So employer benefit plans are covered because they are a health-based plan but the employer himself/herself is NOT covered. Which means, contrary to many people on social media, an employer asking an employee about their vaccination status or for proof of vaccination is NOT covered by HIPAA.
- and does not replace laws that are more protective of pregnant workers. Covered employers are private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations. Under the PWFA, employers must provide reasonable accommodations to a pregnant employee or applicant for known limitations related to pregnancy, childbirth or related medical conditions unless doing would lead to an undue hardship for the employer. “Undue hardship” is defined as significant difficulty or expense.
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Table of Contents 7 results (showing 5 best matches)
Chapter 5. Wages & Hours 12 results (showing 5 best matches)
- As with so many of the employment law statutes, there are many, many specific questions and exceptions and nuances and . . . and . . . and. To impose some order in this area, consider approaching a FLSA question in the following steps:
- One other category of workers may earn less than the set minimum wage—so called “youth workers.” Employees younger than 20 years of age may be paid $4.25/hour for the first 90 calendar days of employment unless state law requires otherwise.
- . The COVID pandemic, as with everything in employment law, brought new scenarios to the question of compensable hours. In addition to new scenarios, such as temperature checks to start
- Remember that FLSA does not preempt state laws in this area. States continue to also regulate in this area. Because there is often separate state law that employers must meet, hours that are not compensable under FLSA may be compensable under the state law. For example, in 2021, the Pennsylvania Supreme Court held that state law defined “hours worked” as “time during which an employee is required to remain on its premises.” worked and therefore be compensable under the Pennsylvania wage and hour law. The California Supreme Court reached a similar result in , holding that security screenings, such as bag checks, are compensable time and the employer must pay the employees for that time. So the interpretation of the state law is completely the opposite of the interpretation of the federal law! Moral of the story—ALWAYS CHECK THE STATE LAW!
- ...is compensable. There are many different types of “on call.” Is the employee at work and sleeping? Are they at home, answering phone calls? Courts look to the benefits and the burdens on the employer and the employee. For example, suppose the City of Brotherly Love was expecting a massive crowd due to a religious leader’s visit, leading to concerns about the ensuing traffic problems. The City tells its firefighters that, during the visit, they are not allowed to leave the City after their shifts for fear they wouldn’t be able to make their way back into the City. Are these “hours worked”? Because it is to the benefit of the City to have the firefighters close by, all the hours they are required to be in the City could be considered “hours worked.” In general, courts look to see how the employee is able to use the on-call time. Do they need to stay at the place of employment? Are they able to sleep? Watch TV? Drink alcohol? Go to a movie? These factors and more can help determine...
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Chapter 8. Employee Liberty 19 results (showing 5 best matches)
- Every semester, to prove a point, I give one of my teenage daughters a few names of students in my Employment Law class and tell her to see what she can find online. She’s scary.
- Employees have fewer rights in the workplace than many expect. Government employees are able to bring challenges under the Constitution for Equal Protection and Due Process claims. Private sector employees may have statutory claims under the anti-discrimination statutes if relevant. Otherwise, employees may look to state tort law for claims of invasion of privacy. Many states have enacted statutes providing employees with protection from adverse employment action on a range of topics from smoking to natural hairstyles to their social media accounts. As always, it is important to check state and local law!
- “Privacy” encompasses a myriad of issues but they all revolve around the employer obtaining information about applicants and employees. The information could be a background check prior to employment, or it could be reading employee emails. Prior to employment, an employer may perform a background check, criminal record check, credit check, or search social media.
- important to distinguish whether you are dealing with public or private employment. Very. VERY. What counts as speech? In addition to actual verbal conversations in the workplace, published writings (think of blog posts) also count as speech. This can include actions such as liking, reposting, and commenting on social media.
- Overall, employees believe they have more rights at work than they actually do. Remember the employment-at-will adage: the employer can fire you for a good reason, a bad reason, or no reason at all. Taken to the extreme, this means the employer could fire you for skiing on the weekend or because of what you say or wear at work. What about the mode of transportation you use to get to work? (This actually happened during the pandemic!)
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Chapter 12. Retirement 6 results (showing 5 best matches)
- Unlike many other areas of employment law, there is a federal statute on point. Remember ERISA from Chapter 6 when discussing healthcare? Well, she’s back! In addition to healthcare plans, ERISA also applies to pensions. Remember that ERISA does not require employers to provide a pension plan but if they do choose to do so, then ERISA requires the plan to meet certain standards. ERISA uses tax incentives to encourage employers to offer pension benefits. Importantly, ERISA preempts most state laws in the area of employee benefits.
- Let me be honest. ERISA is a very detailed statute that interacts with and involves the tax code. My Employment Law professor used to do a jazz hands wave while saying “ERISAAAAA” in a kind of mysterious voice.
- Most employees choose when to retire. In fact, the Age Discrimination in Employment Act prohibits mandatory retirement. (Remember, the ADEA only applies to employers with 20 or more employees.) There are a few exceptions to this prohibition. Bona fide executives or high level policy makers may be mandatorily retired at age 65. State and local governments may set mandatory retirement ages for law enforcement officers and firefighters. Sixty is a common mandatory age that states adopt. Finally, some federal regulations may set retirement ages for certain occupations. For example, commercial airline pilots must retire at age 65.
- ERISA’s vesting provisions are the key protections of the statute. The vesting provisions are of primary importance to the defined benefit plans. There are two ways for employees to be vested. Under the first scheme, employees are fully vested after five years but not at all vested prior to that. Under the second method, employees become incrementally vested starting after two years with full vesting at seven years. Once the employee is fully vested, employees cannot lose the benefits even if they leave that place of employment. ERISA also creates termination insurance and establishes the Pension Benefit Guaranty Corporation to administer the program.
- Early retirement incentives are a tool that employers use to nudge employees out the door. There is no law that requires employers to provide such benefits but once they offer an early retirement incentive package, they must do so on a nondiscriminatory basis.
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Chapter 11. Post Employment Obligations by Employers 7 results (showing 5 best matches)
- (for example, a first grade teacher being transferred to a special education classroom) or quitting to move due to a significant other’s job change. (Just remember—this is a state law determination). Resigning under is a good cause to quit employment. Although a standard rule is that employees must take reasonable steps to preserve employment (i.e. try and fix any problems before quitting), this rule does not apply for sexual harassment cases. Resigning due to matters of
- Believe it or not but employers have obligations to employees after the employment ends. In the next chapter, we’ll discuss retirement and pension obligations but for now, let’s consider two other topics: plant closings and unemployment benefits.
- References for former employees is another area of post-employment obligations. Chapter Three discusses this.
- do employers need to give this notice? The 60 day notice needs to be provided when there is a plant closing or mass layoff. Plant closing means shutting down a single site that results in loss of work for at least 50 employees. A mass layoffs means employment loss at a single site of 33% of EEs at the site or more than 500 employees.
- Employers have obligations to provide notice if a large lay-off will occur. Employers’ post-obligations are primarily in the area of unemployment benefits. Although the unemployment benefits do not come directly from the employer, because the employers insurance payment obligations are tied to the number of former employees seeking unemployment benefits, employers take care to make sure former employees are indeed eligible. Each state sets its own eligibility criteria for the amount of wages that must be earned in order to qualify. Employees must be involuntary unemployed unless they quit for a good cause (a legal term of art). Further, the employee must not have been fired for misconduct. To receive unemployment benefits, employees must continue seeking work and accept suitable employment offers.
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Chapter 2. Defining Employee and Employer 13 results (showing 5 best matches)
- and it arose out of respondeat superior cases (where a party is injured by a worker and wants to sue the employer in order to recover greater damages). Relying on agency law, courts turned to the “master-servant” relationship (yes, it’s actually called that). This test is also referred to as the common law test. Under the control test, there is no shorthand formula for determining who is an “employee,” and so multiple factors must be assessed and weighed when reviewing an employment relationship. There are a few different versions of this multi-factor test floating around but the focus remains on the ability of one party to control the other party. In other words, the court considers not just what the job is, but to what extent the business controls how to do the job. Therefore, one way to view the “control” is to examine the level and amount of supervision the employer has over the worker.
- However, as we know, there are many undocumented workers. When these workers suffer violations of employment laws, the question arises as to whether or not they may recover any remedies. The Supreme Court held in lost due to the unlawful termination. So, although the worker engaged in protected activity under the NLRA, his remedies were limited. This holding has not been extended to other federal statutes, such as Title VII or the FLSA. For claims under workers’ compensation programs, the ability to recover damages is dependent upon state law, with some states prohibiting undocumented workers from recovering and others allowing recovery.
- Typically, the question is whether a worker is an employee or an independent contractor. Employment law statutes do, on occasion, provide definitions, but these definitions are incredibly unhelpful. For example, Title VII (an anti-discrimination statute) defines employee as “any individual employed by an employer.” Seriously. The Fair Labor Standards Act (“FLSA”) uses the same definition but further defines “employ” as “to suffer or permit to work.” Charming. Faced with such circular reasoning, courts have developed a series of tests to determine a worker’s status. Not to give away any spoilers, but . . . these tests overlap.
- The tricky questions for the definition of employer revolve around two issues: high level managers and joint employers. For example, is a partner in a law firm an employee or an employer? Remember that the anti-discrimination statutes have a threshold for the number of employees before the statute applies. Thus, for small employers, determining whether one or two people are considered employees can be the difference in coverage (and therefore liability) under federal statutes. When the Supreme Court considered this issue, it relied on Equal Employment Opportunity Commission (EEOC) guidelines and noted the focus on “control” in
- Age Discrimination in Employment Act (“ADEA”).
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West Academic Publishing’s Emeritus Advisory Board 15 results (showing 5 best matches)
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Arthur J. Kania Dean and Professor of LawVillanova University Charles Widger School of Law
- Alumnae College Professor of LawAssistant Dean for Strategic Opportunities, Pedagogy, and Faculty, Student, and Community Engagement, University of Houston Law Center
- Dean & Professor of LawUniversity of Maryland Carey School of Law
- Professor of Law, University of Houston Law Center
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- Publication Date: September 9th, 2024
- ISBN: 9781636595122
- Subject: Employment Law
- Series: Short & Happy Guides
- Type: Overviews
- Description: Everyone wants a piece of Employment Law – federal, state, and local governments; statutes, regulations, and common; tort law, contract law, and don’t forget the Constitution! This book covers it all – in a Short and Happy form! Moving through each phase of the employment relationship, the chapters note the issues which arise for both employees and employers. It’s all here with a quick summary at the end of each chapter. You’ll be a happier student by the end of the book.
