LEGL4500 Ch. 1

Employment law is...


Sources of employment law

-executive orders
-regulations, guidelines, and administrative decisions
-common law


-most basic source of law in that all other laws must conform to
-address relationships between different levels of government and between governments and their citizens
-Usually only employees of government agencies (not of private corporations) can


-voters elect representatives to legislative bodies who then enact laws or statutes which affect the workplace
-Statutes are laws but very specific
-Most important law in area of employment are statutes, specifically federal statutes

Executive orders

-issued by executive branch and function like statutes but reach fewer workplaces and can be overridden by legislative branch
-Don't have full force like a statute

Regulations, guidelines, and administrative decisions

-when congress enacts a statute, it creates agency to enforce that law
-formal regulations only put in place after elaborate set of requirements for public comment and review have been followed
-regulations are entitled to considerable deference from cour

Common law

-defined by state courts but broad similarities exist across states
-body of unwritten laws based on legal precedents established by the courts
-Used to fill gaps where we don't have other sources of law

Employment laws confer rights on ____ and impose corresponding responsibilities on ____


Employment at will

-in absence of a contract promising employing for a specified duration, the employment relationship can be served at any time and for any reason not specifically prohibited by law
-default rule that permits employers to terminate employment without needin

What rights do employees have under employment laws?

-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 har

Nondiscrimination and equal employment opportunity

-protection for employees against discrimination based on race, sex, age, and other grounds
-many federal laws uphold this like 14th Amendment, Title VII of Civil Rights Act of 1964, Equal Pay Act, etc.)

Freedom to engage in concerted activity and collective bargaining

-protect workers by providing them with leverage in dealing with their employers and negotiating contractual standards of fair treatment
-labor laws exist to protect rights of employees to join together to form labor unions and attempt to improve their te

Terms and conditions of employment that meet minimum standards

Some employment laws directly specify minimum standards of pay, safety, and other aspects

Protection of fundamental rights

-Legal challenges to employer practices are based on broader civil liberties and rights

Compensation for certain types of harm

-Employees can take legal action to recover damages when victim of employer negligence, are defamed, have emotional distress inflicted on them, employment contract is breached, or are wrongfully discharged
-Stare decisis ("let the decision stand") = using

Dukowitz v. Hannon Security Services (Minn. 2014)

-Hannon hired Dukowitz as a security officer in 2005 and assigned her to an evening position
-Daytime holiday season position and Dukowitz was hired but had to sign a document recognizing it could be unavailable after holiday
-Position no longer available

How to get to federal court system

-Diversity of Citizenship (people from two different states) fighting over
more than $75,000
-Legal dispute involves a federal question (anything that has to do with
federal law)
-Cases in which US is a party
-Cases between states

Public vs. private sector employment

-refers to whether employer is a government agency or a corporation
-public employees make up about 15% of workforce
-constitutional protections only apply to public employees
-public employees are covered by state or municipal service laws and tenure pro

Unionized vs. nonunion workplace

-When employee opt for union representation and negotiate a collective bargaining agreement with their employer, the employer is contractually committed to live up to the terms of the agreement
-Unionized employees have many of their terms and conditions

Employer size

-legal environment depends on size of employer
-Size measured in financial terms and coverage limited to employers that exceed a minimum level of sales (generally $500,000)
-Although major federal employment laws do not cover most firms due to their small

Payroll method

Supreme Court rule that employee counted for each full week between when she is hired and when she leaves employment, regardless of number of hours she worked during those weeks

Geographic location

-employee's rights affected by where he lives
-state laws can match or exceed protections available under federal laws dealing with same matters but cannot reduce rights employees have under federal law
-state laws reach smaller workplaces and can provide

Government contracts

-Federal, state, and local governments use contracting process as leverage to get employers to implement desired workplace practices
-Employers that contract to do business with federal government are required to engage in affirmative action (policy of fa

Industry and occupation

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

Historical Development of U.S.

-At turn of the 20th century, employment laws was virtually nonexistent in U.S.
-First significant departure from unregulated workp;ace was adoption of state workers' compensation laws to deal with severe problem of injured and disabled workers
-Major bre

Employment without contract

Employee without a contract for specified term can be terminated at any time for good, bad, or no reason

Pure employment at will

-In 1937, supreme court upheld constitutionality of national labor relations act which carved out first major exception to employment at will
-Can't terminate employees for unions or exercising rights under NLR

Just cause/due process as legal standards governing terminations

-employers bear burden of proving terminations were carried out properly and based on good reasons
-applies to most public employees, employees in Montana, and employees recently reinstated from military
-If employer can't defend challenged termination, t

Employment at will with exceptions

-nonunion, private sector employees have employment relationships governed by this legal standard
-Has been modified by common law wrongful termination claims
-Employees bear burden of showing that termination was for a reason prohibited by law

What does an employee decide to do when she believes her rights were violated?

-In some situations, employment laws are enforced by government agencies at their own initiative
-Both courts and government agencies rely on employees to come forward with complaints before enforcement actions are undertaken
-Decision to challenge an act

How long does the employee have to bring a case?

-unfair labor practices must be brought within 6 months of occurrence
-discrimination cases have 300 days to file a charge with EEOC
-wage and hour cases under fair labor standards act have 3 years
-Employers must be prepared to defend actions taken well

Limitations period

-how much time an aggrieved person has before he can come forward
-Time starts on limitations period when employee received unequivocal written or oral notice of decision (termination) rather than on effective date of decision
-When applying limitations o

Equitable tolling

if an employee is unaware of his rights because of en employer

Recurring limitations period

when acts that recur are cumulative and created a hostile environment then there is a recurring limitations period that begins when employee gives notice of her resignation

Lily Ledbetter Fair Pay Act

established that each discriminatorily low paycheck is a separate violation that starts limitations period anew

Who brings a lawsuit?

-Most employment laws enable employees to enforce their rights through lawsuits against their employers
-Occupational Safety & Health Act is an exception rather when employee thinks hazard exists, he needs to contact OSHA for an inspector
-If national lab

Where a case ends up depends on...

-legal basis of claim
-where parties to case reside/incorporated
-strategic choice of parties

What is role of district courts?

establish facts of case and reach a decision about employee's claim

Summary judgement

when cases are dismissed without trial because court determines even if allegations of plaintiff are true, they are not sufficient to support a legal claim

Who bears burden of proof in court?

-If case makes it to court, plaintiff bears burden of proof to show a preponderance of evidence that his rights were violated
-Can be jury trial or bench trial (tried by judge)

What is role of appeals court?

-District court decisions can be appealed by either party to a federal appeals court (circuit court)
-Appeals court accept facts of case as given and focus on whether lower courts properly applied the law

Writ of certiorari

Appeals court decision can be appealed to US Supreme court

Stare decisis

-"Let the decision stand"
-Decisions are based on precedents from previous cases

Class action lawsuits

-Plaintiffs sue on behalf of themselves and some larger group of people
-Claim their rights and those of other class members were violated in same manner by defendant
-Award shared by class members
-Ensures all plaintiffs get same outcome

Why are class action suits controversial?

-Plaintiffs' counsels see them as efficient
-While, corporate defendants see them as collections of disparate allegations strung together by attorneys to maximize earnings
-For employers and businesses there is a belief that class action lawsuits are abus

What issues arise with determining if people are part of same "class" in class action lawsuits?

-Generally it is required that plaintiffs show all proposed members of class suffered same legal injury
-All class members should be adequately represented
-ex: Walmart case set a precedent making it harder to form classes

Is there an administrative prerequisite to a lawsuit?

-Some employment laws require a charge be filed with an administrative agency and agency be given chance to resolve matter before employee go to court
-In discrimination cases, employee files charge with EEOC or state fair employment agency
-If EEOC finds

Must the employee exhaust internal dispute resolution mechanisms before proceeding?

-If an employer has a complaint or grievance procedure, the employee does not usually have to use the internal procedure before taking the case to an enforcement agency or court
-Area of law with profound changes occurring

Alternative dispute resolution (ADR) procedures

-alternatives to going to court to resolve disputes
-two main types are meditation and arbitration


-Neutral third party facilitates negotiations between negotiating parties to help reach an agreement but doesn't have authority to decide settlement
-EEOC encourages parties to discrimination charges use this
-Voluntary and confidential


-Neutral third party functions more like a private judge
-Arbitrators hear disputes and render decisions that are almost always final
-Has been principal means of enforcing employee rights under collective bargaining agreements in unionized workplaces

Enforceability of Arbitration Agreements

-Agreements requiring employees to use arbitration rather than courts as means of resolving employment law claims are generally enforceable
-Supreme court decided that arbitration agreements between employers and employees are covered under the federal ar

Exceptions to arbitration agreements

-Even with signed arbitration agreement though, employer is still subject to administrative proceedings and possibly lawsuit brought on behalf of an employee by an agency
-Arbitration provisions in collective bargaining agreements of unionized employees w


-when process of contract formation involves take it or leave it offer of an agreement drafted by a more powerful party and when contents of agreement favor more powerful party

Remedies for Violations of Employment Laws

-Remedies available in employment cases include attorney's fees, court orders, back pay, front pay, reinstatement, hiring, liquidated damages (for serious violations), compensatory damages (pain and suffering), and punitive damages (punish wrongdoer)

Role of Managers in Legal Compliance

-Managers need to know about employment laws so they can institute policies that prevent violations, recognize situations that raise legal concerns, and know when to seek legal advice
-Managers (especially HR managers) have central role in legal complianc

Title VII

-Requires you first file complaint with agency (EEOC)
-EEOC can undertake its own investigation and determine if there is reasonable case to see if a valid claim exists
-If there is reasonable cause to think discrimination has occurred them they have to g