Mostly Background Material. Not Necessary for Exam

Employment Law Outline

Professor Howard Datz – Spring 2012

WORK & LAW

Work & Society

[Mostly background material. Not necessary for exam.]

Trajectory of Course – Life history of an employment relationship.
Hiring  workplace  discharge  retirement  post-employment restrictions.
Labor Law v. EmploymentLaw
Labor Law – Relationships between employers and unions; operations of organizational campaigns; collective bargaining; strikes; lock outs.
Employers dealing with employees on a collective basis.
Employment Law – Deals with individual rights of employees. Employer relationships with non-union, individual employees.
Differentiate between law that deals with things, e.g., property and contracts, from law that deals with people, e.g., labor and employment law.
Paramount Importance of Work – Work is one of the most important institutions in our lives. Problems in the workplace affect us all very deeply. The legal, political, social, and philosophical issues run deep.
Note on Employee Class Actions – Employers dislike class actions. SeeWal-Mart v. Dukes (U.S. 2011). Reasons:
Individuals suing as individuals do not stand to recover a large amount of damages. Individuals suing as a class stand to recover a much larger sum of money.
Actions by individuals are squelched much more easily than class actions.
Employers would prefer to litigate before arbitrators, rather than in court, because they generally are more successful before arbitrators. Runaway or unduly sympathetic juries may be more likely to find for employees.

DEVELOPMENT OF EMPLOYMENT LAW

Sources of Modern Employment Law

Overregulation v. Under-Regulation of the EmploymentRelationship
Arguments for Regulation
Certain employment practices that we want to forbid:
Discrimination;
Payment below a living wage; and
Unsafe working conditions.
Want to ensure decency and fairness in the workplace.
 Justified by certain social values.
Arguments for Deregulation
Employers should be able to run their business as they wish.
Employers are afraid to take certain actions, e.g., disciplining employees. Too many regulations breed timidity in employers.
Overregulation cuts against the admirable notion of individual responsibility. It undermines the entrepreneurial spirit.
Example – For any adverse action, an employee’s first instinct is to file a claim of some kind. The employee is in all instances unwilling to admit that her misfortune is her own fault. (Overly litigious society.)
 The trend over the past ten years has been to increase regulation, which also has led to increased employment litigation.
Sources of Employment Law
No single source of employment law. An amalgam of state and federal constitutional, statutory, regulatory, and common law rights and remedies.
Sources of EmploymentLaw
Constitution
Due Process and Equal Protection Clauses.
Particularly important for public-sector employees.
Offers both substantive and procedural protections, e.g., with regard to the latter, it provides employees some minimal due process before they can be shown the door.
Protective Legislation
E.g., OSHA (safety and health standards); FLSA (wages and overtime); workers’ compensation.
Nondiscrimination Statutes – E.g., Title VII; PDA; ADEA; ADA and ADAAA.
Collective-Bargaining Contracts (available in union settings)
Including grievance procedures.
Common Law
Comes up usually in departures from employment at-will doctrine.
Contract law is particularly important, e.g., implied terms.
Public Policy – Judges simply saying that certain employer actions are offensive to public policy.
Invoked when no other sources of employment law are available.
Numerous gaps and overlaps because of its patchwork nature.
Recurring Themes – (1) Preemption and (2) election of remedies.

Civil Service/Public Employment

Different Roles for Government – Distinction between (1) government as employer and (2) government as regulator of society.
McAuliffe v. Mayor & City of New Bedford (Mass. 1892)
Public Employer Can Impose Reasonable Regulations – “There is nothing in the [state] constitution or the statute to prevent a city from attaching obedience to a rule as a condition to the office of policeman, and making it part of the good conduct required. A public employee, such as a policeman, may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.”
When you come to work for the government, youcheck some of your constitutional rights at the door. As an employee, the government may impose reasonable regulations curtailing your constitutional rights.
City fired police officer because it did not like his politics.

Rutan v. Republican Party (U.S. 1990)
Patronage System – “Replacing certain office staff with members of [one’s] own party ‘when the existing employees lack or fail to obtain requisite support from, or fail to affiliate with, that party.’”
Patronage Violates 1st Amendment – 1st Amendment forbids basing decisions as to promotion, transfer, recall after layoff, and hiring of low-level public employees on party affiliation and support.
“What the 1st Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly,” e.g., by dismissing an employee.
Rationale – Patronage inhibits protected 1st Amendment activity, e.g., freedoms of speech, belief, and association. Party affiliation is a 1st Amendment activity.
Exception – “Unless patronage practices are narrowly tailored to further vital government interests, they impermissibly encroach on freedoms under the 1st Amendment.”
Only (1) high-level employees (2)in policy-making positions may be selected on the basis of their political views.
Typical Constitutional Claims
1st Amendment – Involving freedom of expression and association.
4th Amendment – Involving searches or seizures in the workplace.
5th & 14th Amendments – Due process and equal protection claims.
Current Law
Somewhere between McAuliffe and Rutan.
Overall Trend – Greater constitutional and statutory protection.

Collective Bargaining

Advantages
Strength in numbers.
More bargaining power.
Psychological benefits of a shared destiny; collective spirit.
Disadvantages
Your plight is wedded to that of everyone else. Union is your sole representative.
You must adhere to the union-mandated grievance procedure. No outside claims.
Many employers prefer mandatory arbitration because they are fearful of runaway juries and court-imposed punitive damages.
Key Statutes
Clayton Act
Railway Labor Act
Norris-LaGuardia Act
National Labor Relations Act (Wagner Act)
Based on commerce clause.
Section 8(a)(1) – Makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in the exercise of their rights to self-organization and collective bargaining.
Disputes are heard by the National Labor Relations Board.
Damages – Back pay, reinstatement, orders to bargain, and cease and desist orders.
Fair Labor Standards Act
Taft-Hartley Act
Labor-Management Reporting and Disclosure Act
Union Security
Closed Shop Provision – Obligates employer to hire only union members and to discharge employees that drop or lose their membership.
Union Shop Provision – Employee may be required to become a union member in order to retain a job, but she need not be a member at the time of hiring and has a grace period of at least 30 days to join the union.
Agency Shop Provision – Employees need not join the union but are required to pay the union an amount equal to the union’s initiation fees and dues.
Right to Work Laws – Proscribing union membership as a condition of employment.
Unionism in the United States was on the decline throughout the 20th century.

Overlapping & Conflicting Remedies

San Diego Bldg. Trades Council v. Garmon (U.S. 1959)
Rule – NLRA preempts state jurisdiction only if the controversy presented in state court was identical to the one which was or could have been presented to the NLRB.
Contrast with Alexander.
Alexander v. Gardner-Denver Co. (U.S. 1974)
Rule – Arbitration of a discrimination claim under a collective-bargaining agreement did not foreclose subsequent administrative and judicial proceedings under Title VII.
No preclusive effect, substantively or procedurally.
Neither an employee nor a union can waive the right to bring an action in court.
“Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.”
SUBSEQUENT UNDERMINING– An employee now can waive her right to go to court. Employer and employee can agree to settle all disputes in mandatory arbitration, and courts now are willing to enforce such clauses.
14 Penn Plaza LLC v. Pyett (U.S. 2009)
Holding – Provision in collective-bargaining agreement that unmistakably required union members to arbitrate claims arising under the ADEA held enforceable as matter of federal law.
Rule – Union can waive an employee’s right to go to court and agree that all claims will be submitted to mandatory arbitration.
Waiver must be clear and unmistakable and un-coerced.
Some courts require employers to include fairness terms in anymandatory arbitration clauses to protect employees’ substantive rights to some degree. SeeAT&T Mobility v. Concepcion (U.S. 2011).
Retreat from Alexander.
This is simply to say that courts will honor mandatory arbitration agreements, but it is a separate matter whether an employer may require an employee, as a condition of employment, to forgo her right to public adjudication.
Counterargument – Resolution of public wrongs should not be confined to private forums. (Largely a losing viewpoint today.)

HIRING PROCESS

Introduction

Two Kinds of Discrimination Under Title VII
Disparate Treatment – Employer has treated one class of employees differently than another class of employees. Intentionally (with bad motive) discriminated against an employee for a prohibited reason.
Employer’s Defenses
No intentional discrimination.
BFOQ – E.g., hiring only a male to play Hamlet.
Disparate Impact – Plaintiff is not alleging a bad motive but is alleging a bad practice—which may appear benign on its face—that has a disparate impact against some particular group.
Employer’s Defenses
Employer must show that the requirement is (1) job-related and (2) consistent with business necessity.
BFOQ
EEOC v. Consolidated Serv. Sys. (7th Cir. 1993)
Facts – Hwang relied on word of mouth from within the Korean community to meet his hiring needs because this was the cheapest hiring method available to him.
Disparate treatment case.
Question – Does word-of-mouth recruitment give rise to an inference of intentional discrimination? What is the employer’s motive?
Disparate treatment liability requires (1) intentional discrimination (2) that is a but-for cause of the discriminatory outcome.
Intentional Discrimination – “Discrimination is not preference or aversion; it is acting on the preference or aversion. If the most efficient method of hiring, adopted because it is the most efficient (not defended because it is efficient—the statute does not allow an employer to justify intentional discrimination by reference to efficiency) just happens to produce a work force whose racial or religious or ethnic or national-origin or gender composition pleases the employer, that is not intentional discrimination. The motive is not a discriminatory one. Knowledge of a disparity is not the same thing as an intent to cause or maintain it.”
But-For Cause – “Or if, though the motives behind adoption of the method were a mixture of discrimination and efficiency, an employer would have adopted the identical method of recruitment even if he had no interest in the national origin of his employees, the fact that he had such an interest would not be a ‘but for’ cause of the discriminatory outcome and again there would be no liability.”
Even if Hwang had intentionally preferred Koreans over non-Koreans, he could have shown a non-discriminatory reason for his hiring practices because word-of-mouth recruitment was the cheapest means available to him.
Nothing inherently wrong with hiring members of one ethnic group exclusively.
“The social and businessnetwork of an immigrant community racially and culturally distinct from the majority of Americans is bound to be largely confined to that community, making it inevitable that when the network is used for job recruitment the recruits will be drawn disproportionately from the community.”
“People who share a common culture tend to work together as well as marry together and socialize together. That is not evidence of illegal discrimination.”

Labor Pool: Undocumented Aliens

Immigration Reform and ControlAct of 1986
Applies to all employers, regardless of size or industry.
Prohibits employers from hiring undocumented workers.
Employer is not required to check the authenticity of employees’ documents.
Collins Foods Int’l, Inc. v. INS (9th Cir. 1991)
Definition of Hiring – “The actual commencement of employment of an employee for wages or other remuneration.”
Verifying Eligibility to Work – IRCA requires an employer to examine an employee’s documentation and complete Form I-9 “within three business days of the hire.”
“An employer will have satisfied its verification obligation by examining a document which ‘reasonably appears on its face to be genuine.’”
Constructive Knowledge Test – Constructive knowledge requires willful blindness.
Very high standard. Does not create a strong duty on employers to confirm workers’ citizenship status.
That an employer did not exercise due diligence or was careless is not the same as showing that he knowingly hired an undocumented worker.
Policy Argument/Title VII Liability – We do not want employers to inquire into citizenship status before hiring is concluded. We want them inquiring into citizenship status only after an employee has been hired.
“The EEOC has held that pre-employment inquiries concerning a job applicant’s race, color, religion, national origin, or citizenship status ‘may constitute evidence of discrimination prohibited by Title VII.’ An employer who makes such inquiries will have the burden of proving that the answers to such inquiries ‘are not used in making hiring and placement decisions in a discriminatory manner prohibited by law.’ For that reason, employers attempting to comply with IRCA, are well advised not to examine documents until after an offer of employment is made.”
E-Verify – Currently required for all new hires. Requires submission of I-9 Form.
Employer is not required to check the authenticity of employees’ documents.
Chamber of Commerce of the United States v. Whiting (U.S. 2011)
Holding – The provision of the Legal Arizona Workers Act that provides for the suspension and/or revocation of the business licenses of Arizona employers who knowingly or intentionally employ unauthorized aliens is not expressly preempted by the federal IRCA, which prohibits the knowing hiring of unauthorized immigrants and preempts state laws imposing sanctions on those who hire unauthorized immigrants; the Arizona law falls within the IRCA’s exception that preserves state authority to impose sanctions through licensing and similar laws. Nor is Arizona’s requirement that employers use the federal E-Verify system to confirm eligibility for employment not impliedly preempted, as it does not conflict with the federal scheme, and the federal statute establishing E-Verify does not constrain state action.
Argument that the AZ law may be preempted by Title VII.
Hoffman Plastic Compounds, Inc. v. NLRB (U.S. 2002)
Facts – A corporation hired an employee (an undocumented alien) who had presented documents that appeared to verify his authorization to work in the United States. The employee was laid off after supporting a labor union’s organizing campaign and distributing authorization cards to coworkers. The NLRB having found that the corporation had selected the employee and others for layoff in order to rid itself of known union supportersordered the corporation to (1) cease and desist from further violations of the NLRA, (2) post a detailed notice to its employees regarding the remedial order, and (3) offer reinstatement and backpay to the affected employees.
Status as Employee – An undocumented worker is considered an employee within the meaning of protective statutes, such as the NLRA. He is rendering a service for an employer in exchange for money and is entitled to the protections of the NLRA despite his immigration status.
Undocumented Worker Is Not Entitled to Back Pay & Reinstatement
A NLRB backpay award to an undocumented alien, who had never been legally authorized to work in the United States, was a form of relief foreclosed by IRCA.
No legal right to work in United States is key.
NLRB’s discretion to select and fashion remedies for violations of the NLRA, though generally broad, is not unlimited.
Where the NLRB’s chosen remedy trenches upon a federal statute or policy outside its competence to administer, its remedy may be required to yield.
Awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the NLRB has no authority to enforce or administer. Therefore, such an award lies beyond the bounds of the Board’s remedial discretion.
Allowing the NLRB to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA.
Remedy – Court ordered Hoffman to (1) cease and desist its violations of the NLRA and (2) post a notice to employees (a) setting forth their rights under the NLRA and (b) detailing its prior unfair practices.
Illegal Worker Paid Below Minimum Wage – May be entitled to back pay. Court suggests that immigration laws are not offended by paying an employee minimum wage in exchange for the services that he has rendered.
Illegal Worker Injured at Workplace – May be entitled to workers’ compensation. The focus is on injury and compensation, not the right to work. SeeFarmers Bros. Coffee (Cal. Ct. App. 2005).
Breyer, Dissenting
Without the possibility of the deterrence that backpay provides, the NLRB can impose only future-oriented obligations upon law-violating employers—for it has no other weapons in its remedial arsenal. The statutory language of IRCA does not require an illegal alien to forfeit all pay earned, nor do the purposes of the immigration laws support the majority’s conclusion. The denial of the backpay remedy to the NLRB lowers the cost to the employer of an initial labor lawviolation, at least in regard to illegal aliens. It thereby increases the employer’s incentive to find and to hire illegal-alien employees. The discharge in this case did not sever any connection with an unfair labor practice. Indeed, the discharge was the unfair labor practice. The NLRB’s position in this case was, at the least, a reasonable one. Consequently, it was lawful and the Court should have deferred to it.
Ramroop v. Flexo-Craft Printing, Inc. (N.Y. 2008)
Holding – Workers’ compensation claimant was denied additional compensation for vocational rehabilitation services because, as an undocumented alien, he could not be legally employed in the United States.
No right to the job in the first place. We will not help him get it again.

Medical Screening