Employment Law in a Nutshell
Author:
Covington, Robert N.
Edition:
3rd
Copyright Date:
2009
16 chapters
have results for employment law
Chapter 1. The Developing Law of Employment 53 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 Nelles, , 32 COLUM. L. REV. 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 and duties the parties have set for themselves by contract.
- 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 collective bargaining agreements, protection from discrimination,
- 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.
- Title VII of the Civil Rights Act makes employment discrimination unlawful under federal law; the Equal Employment Opportunity Commission created
- ...once again of the central role employment plays 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 jobs, to other countries where wage rates are much...
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Chapter 2. Forming and Terminating the Employment Relationship 91 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...
- A somewhat similar controversy, though not about a statute, is going on now within the American Law Institute, which is debating whether to adopt a on some topics of employment law. Since so much employment law is statutory, the field would not seem a likely one for “restating,” but apparently the internal politics of the ALI have reached a point such that some document is fairly likely to emerge. Given the background and the division within the community of employment scholars on the subject, whether any such
- 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.
- 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.
- “Good cause” means (i) a reasonable basis related to an individual employee for termination of the employee’s employment in view of relevant factors and circumstances which may include the employee’s duties, responsibilities, conduct on the job or otherwise, job performance and employment record, or (ii) the exercise of business judgment in good faith by the employer, including setting its economic or institutional goals and determining methods to reach those goals, organizing or reorganizing operations, discontinuing, consolidating, or divesting operations or positions or parts of operations or positions, determining the size of its workforce and the nature of the positions filled by its workforce, and determining and changing standards of performance for positions. NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, MODEL EMPLOYMENT TERMINATION ACT § 1(4) (August 8, 1991).
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Preface 4 results
- • Students in employment law courses in undergraduate, business or law schools who are looking for an introduction and study aid.
- • Readers with little, if any, prior knowledge of employment law, seeking an overview of the field.
- • More sophisticated readers whose usual subject matter interests lie outside employment law, but who find themselves working with a problem in the area and want a springboard from which to do further research.
- We have been aided by many over the course of three editions. Patrick Paul, now of the Arizona bar, Erich Rhynhart, now corporate counsel in Boston, Mary Ann Miranda, and others who have provided truly valuable research assistance. The librarians at the Alyne Queener Massey Law Library
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Chapter 9. Employment Law Remedies 35 results (showing 5 best matches)
- Declaratory judgment actions are 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.
- • It adversely affects the EEOC’s ability to enforce employment discrimination law; i.e., it
- was required to sign in order to become a broker entitled to use the New York Stock Exchange. Ever since, more and more courts and employers have supported the resolution of employment disputes through arbitration for nonunion employees. A majority of federal and state courts hold that agreements to arbitrate statutory discrimination claims and other workplace employment disputes are valid so long as the nonunion employee does not waive any rights or remedies under the statutes and the arbitral process is fair. See, e.g., , 87 F.3d 745 (5th Cir.1996) (female disc jockey whose employment contract required arbitration of “any other disputes” must submit sexual harassment, retaliation, and constructive discharge claims to arbitration); , 113 F.3d 832 (8th Cir.1997) (employee’s federal and state law discrimination claims are required to be arbitrated under employment handbook’s procedure). One lingering area of doubt about whether such agreements could be enforced was how the Supreme...
- 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.
- The Equal Employment Opportunities Commission (EEOC) for a time spearheaded a backlash against the use of mandatory arbitration of federal discrimination claims. Equal Employment Opportunities Commission,
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Chapter 8. Individual Rights in the Collective Rights Context 36 results (showing 5 best matches)
- The Federal Arbitration Act, 9 U.S.C.A. § 1, et. seq., is not a labor relations law as such. Arbitration under the Taft–Hartley Act is governed by principles developed under section 301 of that statute; the work of “boards of adjustment” is regulated by provisions of the Railway Labor Act. In recent years, however, 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 ...employer, to register as a stockbroker with the New York State 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 that this agreement was enforceable...
- • discriminate in hiring, tenure of employment, or any term or condition of employment in a way that would encourage or discourage participation in a labor organization; Id. § 158(a)(3)
- 2. 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 U.S.C.A. § 7122.
- Congress passed the Federal Service Labor–Management and Employee Relations Law as part of Title VII of the Civil Service Reform Act of 1978. 5 U.S.C.A. §§ 7501–7504, 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...
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Chapter 4. Discrimination 52 results (showing 5 best matches)
- 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. Roughly half the states ban employment discrimination based on marital status. Eleven prohibit at least some forms of employment discrimination on the basis of sexual orientation.
- A plaintiff may also win under the 1991 statute if she “makes the demonstration described in paragraph (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.’ ” 42 U.S.C.A. § 2000e–2(k)(1)(A)(ii), (C). This cryptic statement indicates that the Congress wished to overturn portions of the 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...
- No body of employment law has grown more rapidly in the past forty years than that forbidding employers, unions and others to discriminate on the basis of such “protected characteristics” as age, ethnicity, race, gender, national origin and disability.
- 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 his race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(2).
- 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 42 U.S.C. § 1981(a):
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Chapter 5. Physical Safety 48 results (showing 5 best matches)
- The Congress has frequently restricted the power of the Department of Labor to inspect farms and some businesses employing 10 or fewer persons, in riders to appropriations bills. OSHA does not modify 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. Id. § 653(b)(4).
- (1) 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 standard” means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operation, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
- 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.
- 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.
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Chapter 3. Employee Dignity, Privacy and Reputation 86 results (showing 5 best matches)
- 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. 29 U.S.C.A. § 2009. 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 29 C.F.R. § 801.5. This provision does not apply to any of the exemptions having to do with public employers. 29 U.S.C.A. § 2009.
- State laws that regulate medical testing are particularly varied. They range from statutes requiring testing of specified groups of workers, such as food service employees (see, e.g., Indiana Code Ann. § 16–1–20–21), to laws that prohibit testing for conditions such as AIDS (see, e.g., Wis. Stat. Ann. § 103.15). 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. 42 U.S.C.A. § 12112(d)(3). GINA provides that it does not preempt state laws that are more protective of employees. 42 U.S.C. § 2000ff–8.
- In recent years, 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 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 as whether the employee smokes marijuana at home, is a homosexual, or socializes with the “wrong” kind of people.
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Title Page 2 results
Outline 16 results (showing 5 best matches)
Index 33 results (showing 5 best matches)
Chapter 6. Wage and Hour Regulation 15 results (showing 5 best matches)
- , 198 U.S. 45 (1905), 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. , 300 U.S. 379 (1937). 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 Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201–219, 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 may be higher than the...
- . 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 non wage 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 in 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:
- of family units. Often a worker is the only source of support for both young children and older parents; another worker may be totally free of such obligations. Many members of the “living wage” movement criticize the minimum wage levels set by the FLSA as much too low for most; others criticize the whole idea of such a law, arguing that minimum wages freeze younger workers out of the market, since their skills do not justify this level of pay, and these workers are often members of families that are well off. It takes only a moment to recognize the force of each argument, and to realize that the debate is unlikely to go away soon. The requirement that an employer pay at least “time and a half” for overtime is intended both to increase the number of people employed and to improve working conditions. As the introduction to this chapter stated, the FLSA is a non preemptive statute; none of its provisions or orders justify failure to comply with any state law or municipal ordinance...
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Chapter 7. Pensions and Other Employee Benefit Programs 40 results (showing 5 best matches)
- Many other benefits that employees enjoy, including free parking, most health insurance 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. 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, 29 U.S.C.A. §§ 1001–1461.
- 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, 20 years of service will not discover that he or she has accrued only a small percentage of a full pension. 29 U.S.C.A. § 1054.
- This language thus creates a three-stage analysis for deciding whether a given state law has been superseded. First, one asks whether that state law “relates to” a “plan.” If the answer is “no,” nothing further is required. If the answer is “yes,” one then asks whether the state law “regulates insurance, banking or securities.” If the answer to that is “yes,” then one asks finally whether the deemer clause applies.
- The employee plaintiff clearly must carry a substantial burden of proof, by showing: (1) she is an “employee”; (2) the defendant is an “employer”: (3) she is (or was) entitled to leave for one of the four reasons set out in the statute; and (4) either (a) that she has suffered an adverse employment action because of a claim of leave (retaliation); or (b) that she was discouraged or prevented from taking leave (interference). Must she also show that she has complied with the notice requirement? At least one court has said “yes.”
- Once the PIA is known, adjustments are made to fit the particular circumstances of the benefit claim. For example, if a worker decides to retire at 62 instead of at the “full benefit” retirement age, that worker will receive a monthly check that is reduced by one-fifth. 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 one dollar 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.
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Dean and Professor of Law, Stanford Law School
- Professor of Law, Yale Law School
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Copyright Page 1 result
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render 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.
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- Publication Date: August 17th, 2009
- ISBN: 9780314195401
- Subject: Employment Law
- Series: Nutshells
- Type: Overviews
- Description: This comprehensive guide provides an overview of individual employee rights. It focuses on problem areas such as physical safety, privacy and reputation, discrimination, individual rights protections in collective action statutes, termination of employment, and pensions. It contains new sections on restrictive covenants and trade secrets, and a short chapter on remedies.