Employment Law - Datz Spring 2011

Employment Law - Datz – Spring 2011

Arbitration Forum (2)

-You can file claims in court for a public wrong by the employer despite having signed waiver of court in favor of arbitration

• UNLESS:
• The individual himself signed the contract (not his union),
• OR, the union signed a waiver that had clear unmistakeable language

The Hiring Process (2-3)

-With disparate treatment, the real question is: what was the employer’s motive? What factor is driving the decision to make the adverse employment action?

-With adverse impact, the question is: could the employer have stayed in business by using some other hiring method or criterion that would result in more equal opportunity?

The Labor Pool (3-4)

-To violate IRCA hiring undocumented worker, the employer must know as a fact that the employee is illegal; it need only do a facial check of the documents and not willfully close its eyes to something obviously fishy.

-illegals are “employees” for purposes of NLRA but they can’t get usual remedies of reinstatement and backpay for being punished for organizing.

-Undocumented can collect for worker’s comp and can collect under FLSA the difference b/w what he was paid and minimum wage

Medical Screening (4)

-Circuits are split about whether non-disabled are covered for protection against employment application questions regarding medical conditions or disabilities prior to hiring

Drug Testing (4)

-When gov acts as employer, it may perform suspicion-less drug tests on employees as a condition for hire in certain positions, if the government interest outweighs the individual privacy interests

• Must show compelling interest to infringe on 4A privacy right

Negligent Hiring (5)

-a common law due diligence standard (tort of negligent hiring) can render the employer liable for what the employee did due to failure to investigate applicant’s background once hired (despite no statutory duty to inquire or verify)

-Employers must not inquire too aggressively (or provide too much info about former employees) lest they be liable for defamation, invasion of privacy or discrimination…

-Tort of negligent hiring does not require proof that the misconduct was within the scope of the employee’s scope of employment

Discrimination Based on Race or Sex (5-7)

-McDonnell-Douglas test

• P must first establish PF case
• Belongs to protected class
• Applied for job and was qualified
• Was rejected, yet position remained open while employer sought new applicants
• Burden then shifts to employer to articulate a legitimate reason for refusal to hire
• Burden shifts back to P to demonstrate that employer’s reason is pretextual

- Ultimate burden rests with P to persuade by a PoE that the bad reason was the reason for the non-hire.

-Disparate treatment defense = BFOQ = must show that the discriminatory conduct is essential to the nature of the business; it must be related to the essence of the employer’s business

-Adverse impact defense = job-related and CBN

-PWh Mixed-Motives test

• To establish PF case, employee must show that the bad motive was a reason; if it does, employer is liable
• If employer can assert affirmative “same decision” defense, employee can only collect injunctive or declarative relief but not damages

-Note: in ADEA cases, the employee must not only prove age was a reason but that it was a necessary reason for the decision

-Cat’s Paw: if a supervisor is motivated by bias intended to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable

-Standard for removing neutral test or rule for fear of adverse impact: employer must demonstrate strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.

Retaliation (7)

-Unlawful retaliation if the employer’s action is of such a character that a reasonable employee would be deterred from complaining, regardless of whether it is within the scope of employment.

-Courts may even imply anti-retaliation provisions.

-Employee need only communicate facts to her employer that shows a belief that employer has engaged in employment discrimination

Discrimination on other bases (8)

Religious Discrimination

-Employee has the duty to raise the religious point of view and seek an accommodation

-Employer can assert undue hardship defense – must show it would have a real impact on the running of the business; a significant cost

National Origin/Accent

-May base employment decisions on accent only when it materially interferes with job performance; i.e., it is based on reasonable business necessity.

-Employer must be able to show a legitimate factual basis for its contention that the adverse action was based on accent.

Government as Employer (9)

-Gov employers have right to employment-at-will and discharge for reasons that appear arbitrary,

• unless it chooses to grant greater security of employment thru civil service, collective bargaining or individual contracts

Wages and Hours (9)

-FLSA has a broad definition of employee so as to provide coverage for questionable ICs

• Six factors for determining if the employer is an IC (9)
• Mere fact that employment K stipulates IC status or verbal agreement does not matter much

Health Benefits (10)

-When the health plan gives discretion to plan doctors/administrators to deny coverage, abuse of discretion review standard applies for whether denial is consistent with ERISA

• Under AoD std, courts will give great deference to the general treating doctor

• Under AoD, employer’s conflict of interest can be a factor in making determination

• When treating doctor himself has great financial stake in determination, he is given less deference

Pregnancy Discrimination

-T7 “on the basis of sex” include but are not limited to “b/c or on the basis of pregnancy, childbirth, or related medical conditions.”

• Congress held that if you discriminate on basis of condition that affects only women (or an attribute that is true only for women), that is sex discrimination.
• Term “include but are not limited to” suggests to interpret PDA broadly, beyond pregnancy and related conditions

-Although you cannot discriminate on basis of pregnancy, T7 does not provide any special privileges for pregnancy either

-Discrimination based on fertility (not allowing woman who can conceive to work in the lead department) is sex discrimination under the PDA. (Johnson Controls)

• Good faith and the fact that the stereotype is true are not valid defenses

-Since exclusion of contraception technically applies to both genders, employers are free to exclude it from coverage (as opposed to disallowing women who are capable of conceiving from working in lead department, which discriminates on its face only against women)

• District courts are split over this issue of whether PDA requires employers to provide coverage for contraception

Benefits to homosexuals

-Policy to provide special benefits to married couples and not homosexuals couples who can’t marry need only survive rational basis test

-BUT, court says it is arbitrary and thus benefits are available to unmarried homo couples but not unmarried hetero couples

Freedom in the Workplace (11)

Grooming Standards

-For public employees, even if personal grooming is a constitutional right, public employers may still regulate appearance if there is a legitimate government interest

• Burden is on the employee to show that the regulation is so irrational that it’s arbitrary (a high burden)

-If gov regulation infringes on the exercise of your religion, gov must show a compelling justification for doing that

-For private employees, grooming standards for the sexes may be different so long as they do not impose an unequal burden on one of the genders

• The unequal burden must impose a large cost differential

-Sex stereotyping can be a valid claim when the employer is treating men and women differently in a way that perpetuates sexual stereotypes and there is no job justification (without actually proving employer animus against women)

Sexual Harassment (12)

-in case of constructive discharge, must look separate at burden of proof of harassment and at constructive discharge

-Quid pro quo sexual harassment – when agreement to engage in sexual activity is made a condition of employment

-Hostile environment sexual harassment exists when statements or conduct of a sexual nature creates an environment of intimidation, insult or ridicule

• The conduct must be severe or pervasive enough as to create a hostile or abusive work environment and alter conditions of employment

-Test is both subjective and objective – what would a reasonable person think?

• Merely offensive is not enough but you don’t need a tangible psychological injury either
• If it’s a one-time thing, very hard to succeed on claim
• Factors to look at: frequency of conduct, how offensive, whether physically threatening, interfered with work or not

Constructive Discharge

-Faragher affirmative defense can only be raised in cases of intangible conduct by employer

• Employer has an effective program in place to correct sexual harassing behavior
• P unreasonably did not take advantage of the program

-Either way, the burden is on the employee to prove that it was reasonable to walk out under the circumstances

Right of Privacy in the Workplace (12)

-4A claim of invasion of privacy by gov employer turns on whether the employee has a reasonable expectation of privacy

• The intrusion must violate this reasonable expectation of privacy from both a subjective and objective standpoint
• Factors to consider for reasonable expectation of privacy (13):
• Whether employee has exclusive use of the area
• Nature of the employment
• Whether employee has notice of possible surveillance

-operational realities of the job can diminish your privacy expectations (see Quan)

-Special needs test (City of Ontario v. Quan p. 109 supp.) can override employee’s reasonable expectation of privacy

-Privacy interest is more questionable if the employee bases the restriction on morals

Right of Free Speech in Workplace (13)

-Test for public employee right of free speech

• Is it a matter of public concern?
• If so, must balance the employer’s interest in promoting the efficiency of the public services it performs (state interest) with the employee’s interest in free speech
• Burden is on the employer to justify discharge on legit grounds
• Look at whether the speech will impede the functioning or reputation of the agency

-The 1A does not protect a public employee from discipline based on speech made in the course of the employee’s official duties/job responsibilities

Right to concerted action

-employees have right to engage in work stoppage to protest working conditions even if they did not present a specific demand to the employer, the employer is already working to remedy the situation, and the demands are totally unreasonable.

Regulation of off-work activity

-Circuits are split over whether a neutral rule that prohibited pregnancies among single employees justified because of a BFOQ or business necessity.

Occupational Safety and Health (14)

-OSHA may regulate employer-provided housing only if employees are required to live in such housing as a condition of their employment

-Under OSHA, employers have a duty to instruct employees as to unsafe practices and conditions

• Must tell employees how to recognize and avoid hazards
• The instructions must be specific
• Common sense is not a defense for failure to instruct

-Warrant-less searches of commercial premises are presumed unreasonable

• Though employers can get an ex parte warrant, not necessarily based on reasonable cause and without the employer’s knowledge, to inspect

-Generally, a breach of OSHA standards is E of negligence but not necessarily negligence per se; though in TN and some Js, it IS negligence per se

Disabling Illness and Injury (15)

-Worker’s Comp – employees may be compensated for their workplace injuries without having to show negligence on the part of the employer; it’s enough to show that the injury or illness was caused by the workplace. In exchange, employee gives up any tort claims.

-An injury is worker’s compensation if it arises out of the employment

• When an attack occurs during the course of employment and arises form a private relationship, the resulting injury arises out of the employment if employment conditions have contributed to or facilitated the attack

-An injury is covered by WC if there is a direct causal chain between the job and the injury

Discharge (16)

-Absent a statute, K (express or implied terms), or con provision, employment is at-will

• Increasing judge-made common law exceptions based on fundamental principles of public policy

Whistle-blower protection

-For protection under the Federal Whistleblower Act, the employee must only “reasonably believe” the employer violated the law

-Some state whistle-blower laws, such as Maine’s, require whistle-blowing on an actual violation of law by the employer for protection

Contractual exceptions

-A promise to discharge only for “good cause” is an at-will exception since it is an objective standard.

-Presumption that an employment K is terminable at-will is subject to contrary evidence of an agreement. For implied agreement factors, see p. 17.

-Implied promise contained in an employment manual is enforceable absent a clear and prominent disclaimer by the employer to the contrary. (not all Circuits agree about this)

Public policy exceptions

-Eg, an implied whistle-blowing provision where we protect the employee for complaining of some well defined public policy, eg, employer polluting

-A state-law tort claim (or a common law claim) for retaliatory discharge is preempted by applicable federal law only if the state law claim requires the interpretation of a collective bargaining agreement

• Ie, you must ask if the state law claim (or the common law) can be resolved without construing the CBA

Procedural Due Process for Government Employee Discharge

-The expectation of continued employment except for just cause, while not a K right, is a property interest of which employees may not be deprived of without due process

-Procedural due process required merely means an opportunity to understand why you are being fired and opportunity to respond

Leaving a Job (18)

Non-compete agreements

-No bright line rule, it depends on what’s reasonable

-Employers cannot forbid all competition with them for one year after departure – can only limit it to former client and former co-workers, not new clients or employees

Unemployment (19)

-An employer has the right to close its plant due to lack of profitability

-Implied promise by owners to keep open so long as it was “profitable” must be read in context of generally accepted corporate profit accountability standards

Retirement (19)

Pensions and Benefits

-employers cannot discriminate against individual members of a class based on stereotypes about that class, even if those stereotypes are true

• this includes regarding assessments of risks, in addition to assessing performance

-Social security does not vest property rights under the constitution; it’s a non-contractual benefit

-Gender based differentiation that results in less protection for spouses of female workers than spouses of male workes violates the 5A.

-Employer does not violate ERISA by terminating reitrees’ “lifetime” health-care benefits that were offered thru an early retirement program

-The presumption is against the vesting of welfare benefits; the plan documents must say so in clear and explicit language

-Fiduciary duty could be breached only if there had been an intent to mislead or defraud employees; ie, if the employer made the promise of lifetime benefits knowing that it would cancel them…

-Pension discrimination is not a proxy for age discrimination

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