article presentation

Employment Law for Human Resource Practice Sixth Edition

DAVID WALSH

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

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© 2019 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Chapter 1 – Overview of Employment Law Chapter Outline (1 of 2)

U.S. Employment Law is a Fragmented Work in Progress

Sources of Employment Law

Substantive Rights Under Employment Laws

Determining Which Employment Laws Apply

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Chapter 1 – Overview of Employment Law Chapter Outline (2 of 2)

Historical Development of U.S. Employment Law

Procedures for Enforcing Employment Laws

Enforceability of Arbitration Agreements

Remedies for Violations of Employment Laws

The Role of Managers in Legal Compliance

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

U.S. Employment Law Is a Fragmented Work in Progress

Employment Law is a patchwork of federal, state and local laws

Whether and how laws apply depends on:

Whether employees work for the government or a private employer

Whether they have union representation

The size of their employer

Employment law is dynamic, and changes daily

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Sources of Employment Law (1 of 3)

Constitutions

These address the relationships between federal and state government, and between governments and citizens; state action must be present if an employee seeks to sue

In practical terms, only employees of government agencies (not employees of private corporations) may find constitutional protection in the workplace

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Sources of Employment Law (2 of 3)

Statutes

Laws affecting employment: Title VII of the Civil Rights Act, the Labor Relations Act, the Equal Pay Act; more

Executive Orders

Example: EO #11246 prohibiting discrimination by federal government contractors

Regulations, Guidelines, Administrative Decisions

Example: OSHA safety standards

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Sources of Employment Law (3 of 3)

Common Law

Courts are sometimes asked to resolve disputes over matters that have not been objects of legislation or regulation

Over time, courts have recognized common law claims to enforce private agreements and to remedy certain types of harm

Examples: Courts interpret contracts, decide tort claims

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Substantive Rights Under Employment Laws (1 of 2)

The starting point for determining substantive rights is the doctrine of Employment at Will

Many people believe they cannot be fired if they are doing a good job, but this is not true

Unless the employee has an employment contract for a certain term, the employer can fire the employee at any time for any reason, unless specifically prohibited by law

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Substantive Rights Under Employment Laws (2 of 2)

Nondiscrimination and Equal Employment Opportunity

Freedom to Engage in Concerted Activity and Collective Bargaining

Terms and Conditions of Employment That Meet Minimum Standards

Protection of Fundamental Rights

Compensation for Certain Types of Harm

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Determining Which Employment Laws Apply (1 of 2)

Public Sector or Private Sector Employment

Unionized or Nonunion Workplace

Employer Size

Employees are counted by the payroll method

Geographic Location

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Determining Which Employment Laws Apply (2 of 2)

Government Contracts

Federal, state, and local governments sometimes use the contracting process as leverage to get employers to implement desired workplace practices

Industry and Occupation

Most employment laws apply to any industry, but some are narrowly targeted

Example: The Omnibus Transportation Employees Testing Act mandates extensive drug and alcohol testing of employees regulated the Department of Transportation

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Historical Development of U.S. Employment Law

1900: Essentially no employment law existed

1900s: State workers’ compensation laws

1930s: National Labor Relations Act

1960s: Title VII, Civil Rights Act; Age Discrimination Act; Equal Pay Act

1980s: Common law claims such as wrongful discharge

1990s: Americans with Disabilities Act

2000: Genetic Information Nondiscrimination Act

Employment laws reflect the work of social movements

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Procedures for Enforcing Employment Law (1 of 7)

Many enforcement procedures exist for bringing and resolving claims for violations

What Does an Employee Decide to Do When She Believes That Her Rights Were Violated?

Are the rights enforced by a government agency?

Seeking to enforce rights is expensive, protracted, uncertain and an emotionally draining process

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Procedures for Enforcing Employment Law (2 of 7)

How Long Does the Employee Have to Bring a Case?

What is the limitations period?

Does equitable tolling apply?

For pay discrimination cases, the Lily Ledbetter Fair Pay Act established that each discriminatorily low paycheck is a separate violation that starts the limitations period anew

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Procedures for Enforcing Employment Law (3 of 7)

Can a Lawsuit Be Brought? By Whom?

Most employment laws enable employees to enforce their rights through lawsuits against their employers

When a lawsuit is filed, considerable managerial time is spent responding to requests for records, answering interrogatories, and the like

Best advice: Answer questions truthfully and succinctly and have documentation to back you up

Settlements are a common outcome of litigation

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

Procedures for Enforcing Employment Law (4 of 7)

Can a Lawsuit be Brought? By Whom? (cont)

A federal court case begins at the district court

Many cases filed against employers are dismissed without a trial pursuant to a summary judgment

This means that even if what plaintiff says is true, it does not state a legal claim; plaintiff bears the burden of proof

These decisions can be appealed to a federal appeals court, and to the Supreme Court if it grants certiorari

Judges follow stare decisis, for consistency

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Procedures for Enforcing Employment Law (5 of 7)

Class-Action Lawsuits

Most lawsuits are brought by one or a few named plaintiffs for themselves

In class-action lawsuits, plaintiffs sue on behalf of themselves and some larger group, alleging similar injuries

Plaintiffs must prove commonality among the class

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Procedures for Enforcing Employment Law (6 of 7)

Is There an Administrative Prerequisite to a Lawsuit?

Some employment laws require that a charge be filed with an administrative agency, which seeks conciliation to resolve the dispute before the employee can go to court

If conciliation fails, the EEOC, for example, issues a right to sue letter, permitting the employee to sue in court

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Procedures for Enforcing Employment Law (7 of 7)

Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding?

The law is changing regarding the answer to this question

An employer may escape liability for harassment by a supervisor if an employee unreasonably refuses to avail herself of the employer’s complaint procedure

A more fundamental change has been the rise of alternative dispute resolution (ADR) procedures to replace lawsuits, including mediation and arbitration

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Enforceability of Arbitration Agreements (1 of 2)

Employment agreements requiring employees to arbitrate rather than sue are generally enforceable

Such agreements are governed by the Federal Arbitration Act (FAA), except for transportation workers

These agreements are subject to contract defenses:

Contracts are unconscionable when the process involves a “take it or leave it” offer by a more powerful party (procedurally unconscionable), and its terms are largely one-sided (substantively unconscionable)

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Enforceability of Arbitration Agreements (2 of 2)

Courts have also considered whether adequate notification was given of the arbitration agreement

Was there a clear offer and acceptance? There must be a binding agreement, not merely a company policy

Generally, employees should read and sign the agreements

Practical Considerations: Would you advise an employer to use arbitration agreements? Why or why not?

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Remedies for Violations of Employment Laws

Remedies available in employment cases include:

Attorneys’ fees

Court orders

Back pay

Front pay

Reinstatement

Hiring

Liquidated damages (for serious, intentional violations)

Compensatory damages (including pain and suffering), and

Punitive damages (intended to punish the employer)

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

The Role of Managers in Legal Compliance (1 of 3)

Recognize, analyze and deal effectively with employment law issues

Put in place sound policies and practices that PREVENT legal problems from arising in the first place

Enforce compliance with established law and develop strategies for dealing with unclear legal issues

Know when to seek legal advice

Define the employer’s legal compliance strategy

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.

The Role of Managers in Legal Compliance (2 of 3)

Practical Considerations: Which of the following legal compliance strategies would you advise an employer to adopt? Why?

“Pushing the envelope” in areas of legal uncertainty or erring on the side of caution?

Doing no more than the minimum required by the law or going well beyond that?

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The Role of Managers in Legal Compliance (3 of 3)

Practical Considerations: (cont)

Responding to legal problems as they arise or proactively investing in policies and practices designed to avoid legal problems?

Litigating aggressively or attempting to work things out with employees who believe that they have been wronged?

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Next:

Chapter 2 – The Employment Relationship

Who is an employee?

Who is the employer?

Does an employment relationship even exist?

The answers may surprise you

© 2019 CENGAGE. MAY NOT BE SCANNED, COPIED OR DUPLICATED, OR POSTED TO A PUBLICLY ACCESSIBLE WEBSITE, IN WHOLE OR IN PART.