COB 218 Ch. 24
Terms in this set (46)
at- will employment
- During 18th and 19th century employer could fire a worker for no reason at all
- Today, employee who isn't under contract for set duration under collective bargaining act is considered at will
- They may quit or be fired at any time (ex: doesn't like color of your shirt)
- Exception: cannot fire for an illegal reason.
Federal Employment Discrimination Laws Governing Employers
- Employees protected by federal and state laws
- State laws may give employees more but not less protection than federal laws.
Title VII of the Civil Rights Act (CRA) of 1964
Federal Law (amended by the the CRA 1991) that protects employees against discrimination based on RACE, COLOR, RELIGION, NATIONAL ORIGIN AND SEX; also prohibits harassment based on the same protected categories.
- Deals with discrimination in employment
- Prohibits employers from hiring firing or discriminating based on these, prohibits segregating in ways that affect employment opportunities.
- Proved by disparate treatment or impact.
- Applies to employers who have 15+ employees for 20 consecutive weeks within one year
A form of intentional discrimination in which an employee is hired, fired, denied a promotion or the like based on membership in a protected class. Form of intentional discrimination.
3 steps to proving disparate treatment under Title VII
1. Plaintiff (employee) must demonstrate a prima facie case of discrimination
2. Defendant (the employer) must articulate a legit, nondiscriminatory business reason for the action.
3. Plaintiff (employee) must show that the reason given by the defendant (employer) is a mere pretext.
Jury usually decides after all evidence is presented.
If plaintiff wins, damages are assessed (2 years pay, compensatory and punitive, all court associated fees etc.
- A form of discrimination that arises when an employers policy or practice appears to apply to everyone equally but its actual effect is that is disproportionately limits employment opportunities for a protected class.
- Sometimes called unintentional- discrimination cases
- Very difficult to prove
- Must first be established statistically, then burden of proof shifts to defendant who can argue its business necessity.
- Duke Power Co. case (succeeded in proof)
Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature that makes submission a condition of employment or a factor in employment decisions or that creates an intimidating, hostile or offensive work environment.
- Two types: hostile environment and quid pro quo.
Quid pro quo
- Easiest form to prove
- Occurs when a supervisor makes a sexual demand on someone and this demand is reasonably perceived as a term or condition of employment.
Harassment by Non-employees under Title VII
- Employers may be held liable for harassment of their employees by non-employees under limited circumstances.
EX: customer continually harasses and employer knows but doesn't do anything.
Harassment of Other Protected Classes Under Title VII
- Hostile Environment been used in discrimination cases regarding race and religion.
Pregnancy Discrimination Act of 1987- Amendment to Title VII
- PDA expands gender discrimination to pregnancy
- Treat pregnancy as any other temporary disability.
3 most important Defenses to Claims under Title VII for defendants
- Bona Fide occupational qualification defense
- Seniority System
* These defenses are not applicable to claim based on harassment
The Bona Fide Occupational Qualification Defense
- (BFOQ) allows employers to discriminate in hiring based on sex, religion or national origin (not sex/color) when doing so is necessary for the performance of the job.
EX: modeling woman's clothing.
* Does not cover preferred gender of waiter (hooters)
** Only exception is sexual privacy.
- Usually raised when hiring or promotion decisions are partially based on test scores.
- UGESP guides employers on which tests are valid and job related.
3 types of validation for Merit Defense Tests
1. Criterion-related validity: which is the statistical relationship between test scores and objective criteria of job performance.
2. Content Validity: which isolates some skill used on the job and directly tests that skill. EX: test that required a word processor to use a computer.
3. Construct Validity: wherein a psychological trait needed to perform the job is measured. EX; test of patience for a teacher.
The Seniority System Defense
- Bona Fide Seniority System is legal under Title VII.
- Considered not illegal if:
1. The system applies equally to all persons
2. The seniority units follow industry practices
3. The seniority system did not have its genesis in discrimination
4. The system is maintained free of any illegal discriminatory purpose.
Remedies Under Title VII
- Plaintiff may seek both equitable and legal remedies for violations
- Plaintiff not yet hired may seek damages
- In most cases punitive damages are capped at $300,000 for firms with 500+ employees and $100,000 for firms with 101-200 and $50,000 for firms with 100 or less.
Procedure for Filing a Claim under Title VII
- Most complicated than lawsuit.
- First step: aggrieved party filing of charge with state EOC
Then investigation looks for reasonable cause.
If not present: attempts to eliminate problem through conciliation (negotiate settlement). May still file suit.
sworn statement that states the name of the charging party, names of the defendants and nature of discriminatory act.
- Must be filed within 180 days of alleged act.
- Charged must be notified within 10 days.
Discrimination Based on Sexual Orientation
- There is no federal legislation prohibiting discrimination based on sexual orientation. (state laws in 20 states).
Age Discrimination in Employment Act (ADEA) 1967
Federal Law that prohibits employers from refusing to hire, discharging or discriminating in terms and conditions of employment on the basis of an employee's or applicants being age 40+.
- Applies to employers having 20+ employees.
Americans with Disabilities Act (ADA)
- Federal Law that prohibits discrimination against employees and job applicants with disabilities.
- requires employers to make reasonable accommodations to the known physical or mental disability of an otherwise qualified person unless the accommodations would causes a burden on employer's business.
For ADA plaintiff must show:
1. They have a disability
2. Was otherwise qualified for the job
3. Suffered an adverse employment decision because of that disability.
May Employer Discriminate Against a Smoker
- It depends. Many are doing this for reasons like; higher health care costs and miss more work lowering productivity etc.
- Must be sure not to violate smokers rights laws.
Equal Pay Act (EPA) of 1963
Federal Law that prohibits an employer from paying workers of one gender less than the wages paid to employees of the opposite gender for work that requires equal skill, effort and responsibility.
1. seniority system
2. Merit system
3. System which measures earning by quantity or quality of production
4. Differential based on any factor other than sex.
Additional Laws Governing the Employment Relationship
1. Fair Labor Standards Act
2. Family and Medical Leave Act
3. Unemployment Compensation
4. Workers Comp Laws
5. Consolidated Omnibus Budget Reconciliation Act of 1985
6. Employee Retirement Income Security Act of 1974
7. Occupational Safety and Health Act of 1970 (OSHA)
Fair Labor and Standards Act
-Federal Law which requires that a minimum wage of a specified amount be paid to all employees in covered industries; also mandates that employees who work more than 40 hours a week be paid no less than 1 1/2 times their regular wage for all hours beyond 40 worked in a given week.
Excluded categories of employment: 1) Executives 2) Administrative employees 3) Professional Employees 4) Outside Salespersons
Family and Medical Leave Act (FMLA)
- Federal Act requiring that employers provide all eligible employees with up to 12 weeks of UNPAID leave during any 12 month period for several family related occurrences (ex: birth, care of sick spouse/parent/child, adoption, placement of foster child, serious health condition)
- Covers all public employees and private with 50+ employees
A state system, created by FUTA (fed, unempl. tax, act) that provides unemployment comp to qualified employees who lose their jobs.
Workers Comp Laws
- State laws that provide for financial comp to employees or their dependents when a covered employee is injured on the job.
- Purely State Law
Consolidated Omnibus Budget Reconciliation Act of 1985
- Federal Law which ensures that when employees lose their jobs or have their hours reduced to a level at which they would not be eligible to receive medical, dental or optical benefits from their employer, the employees & dependents will be able to continue receiving benefits under the employers policy for up to 18 months by paying the premiums.
Obligation doesn't arise under these conditions:
1. The employee is fired for gross misconduct
2. The employers decides to eliminate benefits for all current employees.
Employee Retirement Income Security Act of 1974 (ERISA)
Federal Law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.
- Employers required to provide free of charge a summary plan description which has info on how plan operates, benefits and how to apply for them, etc.
Under ERISA employers must provide participants with:
1. Plan info (aka features and funding)
2. Assurances of the fiduciary responsibility of those in charge of the managing and controlling the plan assets
3. A grievance and appeals process for participants to get benefits from their plans.
4. The right to sue for benefits and breaches of fiduciary duty.
OSHA of 1970
Federal Law that established the OSHA, the agency responsible for setting safety standards under the act and enforcing the act through inspections and the levying of fines against violators.
- Undertakes educational programs for employers/ees.
Electronic Monitoring and communication
Questions related to such monitoring primarily involve the common law tort of invasion of privacy and 2 federal statues: the Omnibus Crime Control and Safe Streets Act of 1968 and Electronic Communications Privacy Act of 1986.
- Monitoring allowed when employees give prior consent.
Omnibus Crime Control and Safe Streets Act of 1968
Federal statute banning employers from listening to the private telephone conversations of employees or disclosing the contents of these conversations. Employers may ban personal calls and monitor calls for compliance as long as they discontinue listening to any conversation once they determine it is personal.
Electronic Communications Privacy Act (ECPA) 1986
Federal law that extended employee's privacy rights to electronic forms of communication including email and cell phones; outlaws the intentional interception of electronic communications and the intentional disclosure or use of the info obtained through such an interception.
At minimum employer privacy policies should cover:
1. Employer monitoring of telephone convos
2. Employer surveillance policies
3. Employee access to to medical and personal records
4. Drug testing policies
5. Lie detector policies
6. Ownership of computers and all issues unique to the electronic workplace.
Labor Laws and Unions
- Increasingly organizing professionals and those in the service industry.
- Nearly 4 in 10 gov workers belong to a union.
- Governed by 3 major pieces of legislation:
- Wagner Act of 1935
- Taft-Heartley Act of 1947
- Landrum- Griffin act of 1959
Wagner Act of 1935
The first major piece of federal legislation adopted explicitly to encourage the formation of labor unions and provide for collective bargaining between employers and unions as means of obtaining the peaceful settlement of labor disputes.
- Also created administrative agency, NLRB to interpret and enforce NLRA.
The process whereby workers organize collectively and bargain with employers regarding the workplace.
Negotiations between employer/ee to determine conditions of employment.
Federal Legislation designed to curtail some of the powers that unions had acquired under the Wagner Act; designates certain union actions as unfair.
- AKA Labor-management Relations Act.
- created to address the growth of unions and workers power in the 12 years since Wagner.
Federal legislation that primarily governs the internal operations of labor unions. Requires financial disclosures by unions , establishes penalties for financial abuses by union officials, and includes "Labor's Bill of Rights" to protect employees from their own unions.
- Responsive to certain undesirable internal labor union practices.
National Labor Relations Board (NLRB)
An administrative agency created by the Wagner act to interpret and enforce the NLRA.
- Has jurisdiction over all employees EXCEPT those who work in federal, state and local gov and those covered by railway labor act, independent contractors, domestics, employed by parent etc.
NLRB's 3 primary functions:
1. Monitor the conduct of the employer and the union during an election to determine whether workers want to be represented by a union.
2. Prevent and remedy unfair labor practices by employers or unions
3. Establish rules interpreting the NLRA.
The Collective Bargaining Process
- Once union has been certified, union and management must begin bargaining in GOOD FAITH wages, hours, and other terms and conditions of work.