Legal Approaches to the Employment Relation Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

Legal Approaches to the Legal Approaches to the Employment RelationEmployment Relation

Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

OverviewOverviewOverviewOverview

Employee Employee SafetySafety

UnionizationUnionization

Direct Control Direct Control of Wages and of Wages and Other Other CompensationCompensation

Protection for Protection for Special Groups Special Groups of Employeesof Employees

Constitutional Constitutional ProtectionsProtections

Social Security Social Security and Insuranceand Insurance

PrivacyPrivacy

Common Law Common Law ProtectionProtection

Employment Law

Employment Discrimination


OverviewOverview

Employment DiscriminationEmployment Discrimination Statutorily DefinedStatutorily Defined

Immutable CharacteristicsImmutable Characteristics Race, Gender, Age, or National Race, Gender, Age, or National

OriginOrigin Subject to ChangeSubject to Change

Religion, Alienage, or Marital StatusReligion, Alienage, or Marital Status Sometimes BothSometimes Both

Disability DiscriminationDisability Discrimination

OverviewOverview Employee Employee

SafetySafety


Direct Control of Direct Control of Wages and Wages and Other Other CompensationCompensation




PrivacyPrivacy



OverviewOverview

Why Employers DifferentiateWhy Employers Differentiate Rational ReasonsRational Reasons Questionable ReasonsQuestionable Reasons Eccentric but Not Illegal ReasonsEccentric but Not Illegal Reasons Socially/Morally Unacceptable Socially/Morally Unacceptable

ReasonsReasons Limiting Power of EmployerLimiting Power of Employer


SafetySafety






PrivacyPrivacy



OverviewOverview

Long history of Long history of “employment” and “employment” and regulationregulation Feudal systemsFeudal systems Indentured ServitudeIndentured Servitude ApprenticeshipsApprenticeships SlaverySlavery Modern Contract Modern Contract

TheoriesTheories


SafetySafety






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OverviewOverview

Post-slavery legal treatment Post-slavery legal treatment of employment relations:of employment relations:

Contract LawContract Law Tort LawTort Law


SafetySafety






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OverviewOverview

Contract RootsContract Roots Freedom of Contract meant less Freedom of Contract meant less

judicial policingjudicial policing ““At Will” Employment PresumedAt Will” Employment Presumed

Absent an express written contract for a Absent an express written contract for a term of years, the relationship between term of years, the relationship between an employer and its employees was “at an employer and its employees was “at will.”will.”

Why presume “at will”?Why presume “at will”? Forrer v. Sears, Roebuck & Co.Forrer v. Sears, Roebuck & Co. (Wis. (Wis.

1967)1967) Permanent = temporaryPermanent = temporary Terminate for good, bad, or no Terminate for good, bad, or no

reasonreason


SafetySafety






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OverviewOverview

Tort RootsTort Roots Employer/Master liability for torts of Employer/Master liability for torts of

Employees/ServantEmployees/Servant Agency LawAgency Law


SafetySafety






PrivacyPrivacy


Low “Control”

=

Independent Contractor

High “Control”

=

Servant/Employee


OverviewOverview

Tort Roots (…Tort Roots (…ContinuedContinued)) EmployerEmployer liability for Employee liability for Employee

injuryinjury Theory: Normal tort law appliesTheory: Normal tort law applies Fact: Laws tended to favor Fact: Laws tended to favor

employersemployers Privileges (i.e. Defamation)Privileges (i.e. Defamation) Employer immune:Employer immune:

Fellow servant ruleFellow servant rule Assumption of riskAssumption of risk Contributory NegligenceContributory Negligence


SafetySafety






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Employee SafetyEmployee Safety

Workers’ Compensation LawsWorkers’ Compensation Laws Trade offTrade off

More Likely RecoveryMore Likely Recovery Limited CompensationLimited Compensation

ExclusivityExclusivity

OverviewOverview







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Worker’s Compensation RecoveryWorker’s Compensation Recovery Medical Expenses: CoveredMedical Expenses: Covered Lost Wages: ½ - Lost Wages: ½ - 22//33 Covered Covered Pain & Suffering: Not CoveredPain & Suffering: Not Covered

HistoricallyHistorically Employees favored WCEmployees favored WC Employers favored tort systemEmployers favored tort system

TodayToday Employees often prefer the tort Employees often prefer the tort

systemsystem Employers usually prefer WCEmployers usually prefer WC

OverviewOverview







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Cost of Workers’ CompensationCost of Workers’ Compensation WC Costs BIG $$$WC Costs BIG $$$ Potential Compensation CrisisPotential Compensation Crisis But probably lower $$$ than a tort But probably lower $$$ than a tort

systemsystem Benefit to high cost: Benefit to high cost:

Reduction of hazardsReduction of hazards BUT, not as expensive as tort systemBUT, not as expensive as tort system

Hazards are less likely to be eliminatedHazards are less likely to be eliminated

OverviewOverview







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Employee SafetyEmployee SafetyOverviewOverview







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Occupational Safety and Health Occupational Safety and Health Act (OSHA), 29 U.S.C.S. Act (OSHA), 29 U.S.C.S. §§ 651 et §§ 651 et seq. seq. Why compensate when you can Why compensate when you can

prevent?prevent? Government enforcementGovernment enforcement


UnionizationUnionizationOverviewOverview


UnionizationUnionization Direct Control of Direct Control of

Wages and Wages and Other Other CompensationCompensation




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CircumstanceCircumstance Employer Employer ReactionReaction

Industrial Industrial RevolutionRevolution

Criminalize Criminalize Unions!Unions!

Sherman Sherman Antitrust ActAntitrust Act Enjoin Strikes!Enjoin Strikes!

Communist/ Communist/ Socialist Socialist

sentimentsentimentMaybe Unions OKMaybe Unions OK









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National Labor Relations Act, 29 National Labor Relations Act, 29 U.S.C.S §§ 151 et seq.U.S.C.S §§ 151 et seq. NLRB created to:NLRB created to:

Protect workers’ “concerted activity for Protect workers’ “concerted activity for the purpose of mutual aid or protection”the purpose of mutual aid or protection”

Recognition of UnionsRecognition of Unions Good faith bargaining requiredGood faith bargaining required Economic Warfare regulatedEconomic Warfare regulated









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Collective BargainingCollective Bargaining For wages, hours, other terms and For wages, hours, other terms and

conditionsconditions Especially job securityEspecially job security

Layoffs by seniorityLayoffs by seniority ““Just cause” restrictions on discharge or Just cause” restrictions on discharge or

discipline of individual workersdiscipline of individual workers Procedural protectionsProcedural protections









PrivacyPrivacy


Union “Density”Union “Density” Lower % organized in 2005 than Lower % organized in 2005 than

19351935 Employer ResistanceEmployer Resistance GlobalizationGlobalization Restrictions on union arsenalRestrictions on union arsenal Union overreaching resulting in bad PRUnion overreaching resulting in bad PR

Big Exception: the public sectorBig Exception: the public sector


Direct Control of WagesDirect Control of Wages

OverviewOverview



Direct Direct Control of Control of Wages and Wages and Other Other CompensatioCompensationn

Protection for Protection for Special Groups of Special Groups of EmployeesEmployees



PrivacyPrivacy


Early ControlsEarly Controls Child labor – some restrictionsChild labor – some restrictions LochnerismLochnerism

Adult regulations usually struck downAdult regulations usually struck down But see But see Muller v. OregonMuller v. Oregon (1908) (1908)

Death of Substantive Due ProcessDeath of Substantive Due Process Fair Labor Standards Act Fair Labor Standards Act

Pros: Minimum wage & maximum hour Pros: Minimum wage & maximum hour lawslaws

Cons: Artificially reduces labor demandCons: Artificially reduces labor demand Retirement Income Security ActRetirement Income Security Act

You can catch more flies with tax You can catch more flies with tax incentives…incentives…Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)

Protection for Subgroups of EmployeesProtection for Subgroups of Employees

OverviewOverview



Direct Control of Direct Control of Wages and Other Wages and Other CompensationCompensation

Protection Protection for Special for Special Groups of Groups of EmployeesEmployees



PrivacyPrivacy


Civil Service SystemsCivil Service Systems Probationary: few protectionsProbationary: few protections ““Permanent”: Employed during Permanent”: Employed during

“good behavior”“good behavior” Academic TenureAcademic Tenure

Features:Features: Procedural Protections for “just cause”Procedural Protections for “just cause” Layoffs only for Financial ExigencyLayoffs only for Financial Exigency

Application:Application: By statute in PUBLIC education By statute in PUBLIC education

institutionsinstitutions By contract in PRIVATE institutionsBy contract in PRIVATE institutions


Public SectorPublic Sector Requisite: Property interest in jobRequisite: Property interest in job

Created by Created by statutory statutory right or by contractright or by contract

Due Process: Due Process: Procedural and SubstantiveProcedural and Substantive

1st Amendment: 1st Amendment: Speech must be of “public concern”Speech must be of “public concern” Speech must Speech must notnot be in the course of be in the course of

employment dutiesemployment duties Employer may still discharge if acting Employer may still discharge if acting

reasonably to further its legitimate reasonably to further its legitimate interestsinterests

Constitutional ProtectionsConstitutional Protections

OverviewOverview





ConstitutionConstitutional al ProtectionsProtections


PrivacyPrivacy



Social SecuritySocial Security Broad safety netBroad safety net

Financed by employers & employeesFinanced by employers & employees

Unemployment InsuranceUnemployment Insurance Both employers and employees Both employers and employees

contributecontribute

Limited benefits and dependent on Limited benefits and dependent on not being discharged for misconductnot being discharged for misconduct

Social Security and InsuranceSocial Security and Insurance

OverviewOverview






Social Social Security and Security and InsuranceInsurance

PrivacyPrivacy



ConstitutionConstitution Protects only public sector workersProtects only public sector workers

Statutes, common Law, contract Statutes, common Law, contract law, and tort lawlaw, and tort law Apply to both public and private Apply to both public and private

sectorssectors

But not comprehensiveBut not comprehensive PolygraphsPolygraphs Wire tappingWire tapping Tort claimsTort claims

PrivacyPrivacy

OverviewOverview







PrivacyPrivacy Common Law Common Law

ProtectionProtection


Workplace issuesWorkplace issues IncludeInclude

Drug testingDrug testing Audio/video monitoringAudio/video monitoring Email & other electronic monitoringEmail & other electronic monitoring Handbags and briefcasesHandbags and briefcases PolygraphsPolygraphs

Government Searches: Is there an Government Searches: Is there an Expectation of PrivacyExpectation of Privacy

If not, no protectionIf not, no protection If so, some limits on searchesIf so, some limits on searches

PrivacyPrivacy

OverviewOverview







PrivacyPrivacy Common Law Common Law

ProtectionProtection


““At Will” MetamorphosisAt Will” Metamorphosis Horace Gay Wood:Horace Gay Wood:

““At will” an aid to statutory constructionAt will” an aid to statutory construction Post-1877 Courts:Post-1877 Courts:

Applied “at will” doctrine as substantive Applied “at will” doctrine as substantive lawlaw

Fisher v. JacksonFisher v. Jackson (Conn. 1955) (Conn. 1955) Promised employment for life = “at Promised employment for life = “at

will”?will”? Clear proof required to rebut the Clear proof required to rebut the

“presumption” (e.g., formal contract)“presumption” (e.g., formal contract)

Reassessing Contract LawReassessing Contract Law The The

Reassessment of Reassessment of Contract LawContract Law

Oral ContractsOral Contracts

Employer PoliciesEmployer Policies

Promissory Promissory EstoppelEstoppel

Good FaithGood Faith

Varieties of Job Varieties of Job SecuritySecurity


PrivacyPrivacy



Problems of early application:Problems of early application:









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promise permanent

f employmen

t?

I sure do!

DEAL!!!

The court is glad

you agree, but it’s “at will” anyway


““At Will” Metamorphosis At Will” Metamorphosis (Continued)(Continued)

““At will” building blocks:At will” building blocks: Presumption of “at will”Presumption of “at will”

Court now considers ACTUAL intent of Court now considers ACTUAL intent of partiesparties

““Mutuality of Obligation”Mutuality of Obligation” Modern contract law – any Modern contract law – any

“consideration” suffices; “adequacy” “consideration” suffices; “adequacy” not relevantnot relevant

““Additional” consideration Additional” consideration requiredrequired

Inconsistent with modern view of Inconsistent with modern view of considerationconsideration









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Modern treatments:Modern treatments: Oral contracts may provide some Oral contracts may provide some

rightsrights Degree of security?Degree of security? Factual Issues?Factual Issues? Statute of frauds still a limitationStatute of frauds still a limitation

Employer policy manuals may be Employer policy manuals may be bindingbinding

A fair reading, creating a reasonable A fair reading, creating a reasonable expectationexpectation

Promissory estoppel may be Promissory estoppel may be availableavailable

E.g., Leaving one job on a promise of anotherE.g., Leaving one job on a promise of another

““Good faith” implicit in all contracts?Good faith” implicit in all contracts? But good faith ≠ good causeBut good faith ≠ good cause May be viewed as excluding certain reasons May be viewed as excluding certain reasons

from good cause (e.g., opportunism, personal from good cause (e.g., opportunism, personal animosity)animosity)

Reassessing Contract LawReassessing Contract Law The Reassessment of The Reassessment of

Contract LawContract Law

Oral Oral ContractsContracts

Employer Employer PoliciesPolicies


Good FaithGood Faith Varieties of Job Varieties of Job

SecuritySecurity


Varieties of job securityVarieties of job security Just CauseJust Cause

Individual reasonsIndividual reasons E.g.,E.g., Inadequate performance, Inadequate performance,

misconduct, etcmisconduct, etc Systemic reasonsSystemic reasons

E.g.,E.g., Layoffs, reorganization, etc…Layoffs, reorganization, etc… SatisfactionSatisfaction

SatisfactionSatisfaction SubjectiveSubjective

Honest satisfactionHonest satisfaction Satisfaction pertaining to performance Satisfaction pertaining to performance

onlyonly Reasonable satisfactionReasonable satisfaction

ObjectiveObjective

Reassessing Contract LawReassessing Contract Law The Reassessment of The Reassessment of

Contract LawContract Law





Varieties of Varieties of Job SecurityJob Security


Exclusivity of Workers’ Exclusivity of Workers’ CompensationCompensation Accidental InjuriesAccidental Injuries

Intentional torts still usually Intentional torts still usually actionableactionable Intentional infliction of emotional Intentional infliction of emotional

distressdistress FraudFraud DefamationDefamation Intentional interference with contractIntentional interference with contract Invasion of privacyInvasion of privacy

Grey AreaGrey Area Sexual harassmentSexual harassment

Reassessing Tort LawReassessing Tort LawThe The

Reassessment of Reassessment of Tort LawTort Law

Intentional Intentional Infliction of Infliction of Emotional Emotional DistressDistress

FraudFraud

DefamationDefamation

Intentional Intentional Interference with Interference with ContractContract

PrivacyPrivacy

The Public Policy The Public Policy ExceptionException

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Intentional Infliction of Emotional Intentional Infliction of Emotional Distress (Outrage)Distress (Outrage) Abusing position of powerAbusing position of power Liable for asserting a legal right Liable for asserting a legal right

impermissiblyimpermissibly Agis v. Howard Johnson Co.Agis v. Howard Johnson Co. (Mass. 1976) (Mass. 1976)

Reassessing Tort LawReassessing Tort LawThe Reassessment of The Reassessment of

Tort LawTort Law


FraudFraud



PrivacyPrivacy


PrivacyPrivacy

Get out! Starting

with Abby, Betty, Carol…


FraudFraud Misstatement of material factMisstatement of material fact Promise = fact if promisor intends Promise = fact if promisor intends

not to honor bargain at the time she not to honor bargain at the time she promisespromises

Reasonable detrimental relianceReasonable detrimental reliance


Tort LawTort Law


FraudFraud DefamationDefamation


PrivacyPrivacy


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Defamation (Libel and Slander)Defamation (Libel and Slander) Elements:Elements:

A defamatory statement,A defamatory statement, made about the plaintiff,made about the plaintiff, published to a third party;published to a third party;

TruthTruth Absolute DefenseAbsolute Defense PrivilegePrivilege

AbsoluteAbsolute QualifiedQualified


Tort LawTort Law


FraudFraud

DefamationDefamation Intentional Intentional

Interference with Interference with ContractContract

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Elements of Intentional Elements of Intentional Interference:Interference: Existence of a contractExistence of a contract Knowledge of K by a 3rd partyKnowledge of K by a 3rd party InterferenceInterference Lack of justificationLack of justification Proximately caused damageProximately caused damage

3rd parties3rd parties Managers qualifyManagers qualify Co-workers qualifyCo-workers qualify


Tort LawTort Law


FraudFraud


Intentional Intentional Interference Interference with Contractwith Contract

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Four distinct privacy torts:Four distinct privacy torts: Intrusion on seclusionIntrusion on seclusion Appropriation of a name or likenessAppropriation of a name or likeness Publicity given to private lifePublicity given to private life Publicity placing a person in false Publicity placing a person in false

lightlight


Tort LawTort Law


FraudFraud



PrivacyPrivacy The Public Policy The Public Policy

ExceptionException


Monge v. Beebe RubberMonge v. Beebe Rubber (N.H. (N.H. 1974)1974) Public policy tort has extended to Public policy tort has extended to

protection from termination for:protection from termination for: Refusal to accept supervisor’s sexual Refusal to accept supervisor’s sexual

advancesadvances Refusal to violate public health lawsRefusal to violate public health laws Complying with subpoenaComplying with subpoena Serving on a juryServing on a jury Violating a lawViolating a law WhistleblowingWhistleblowing Exercising a public rightExercising a public right


Tort LawTort Law


FraudFraud



PrivacyPrivacy

The Public The Public Policy Policy ExceptionException


Documents

Legal Approaches to the Employment Relation Zimmer, Sullivan & White, Employment Discrimination (Aspen, 7th ed, 2008)