Labor and Employment Law An overview Authoritative sources of law in the US Federalism: Two systems, both operating directly on individuals Supremacy clause Xth Amendment Federal and State Constitutions Statutes Agency regulations Court decisions Some of the roles played by courts Restraining legislators and executives by judicial review under the constitutions Interpreting statutes and regulations Policing agency fidelity to statutes Developing and applying “common law” doctrines Some common law categories Tort Physical injury Infliction of mental distress Harm to reputation Invasion of privacy Contract What promises should we enforce? What is a “breach”? Physical Safety Preventing injury and disease OSHA (1970) State worker safety laws (section 18 laws) Specialized safety statutes Mine workers Transportation employees Nuclear workers Laws protecting the general public (FIFRA, etc) Physical Safety (cont.) Compensating for injury and death Actions for damages Traditional tort principles FELA Workers Compensation Disability Benefits under Social Security Vocational Rehabilitation Programs Private insurance OSHA Two principal duties: General duty clause: “. . . furnish . . . employment and a place of employment . . . free from recognized hazards . . Likely to cause death or serious physical harm . . . .” Standards: “shall comply with occupational safety and health standards promulgated under this [Act]” OSHA (cont) Enforcement: Inspections (no advance notice; warrant may be required, but only “administrative probable cause” needed to get one) Proposed penalties usually include (a) civil penalty; (b) abatement Review by OSHRC Further review by US Circuit Court of Appeals Workers compensation Contrast with tort recovery: In tort, injured worker must prove employer fault (usually “negligence”); in worker’s compensation, most fault is not relevant, only connection between injury and employment In tort, damages are determined on basis of individual economic and non-economic loss; in workers compensation, recovery is limited: Medical treatment Partial wage loss, sometimes based on injury severity, sometimes on actual wage loss Death benefits for dependents Privacy and Reputation Tort law principles Defamation Right of privacy Intentional infliction of mental distress (the “outrageous conduct” tort) Defamation Defamation: A (a) false statement (b) published to one or more persons (c) about another person that is (c) defamatory in nature, made (d) without privilege, under circumstances such that the publisher is (e) at fault. Common law Right of Privacy Appropriation Placing a person in a “false light” Public disclosure of private facts Unreasonable intrusion Intentional infliction of Mental Distress Caused by conduct that “goes beyond the bounds of decency” (unfounded accusations of crime; threats) Many courts search for objective evidence of harm, such as inability to work Privacy and Reputation (cont.) Federal statutes FOIA and the Privacy Act of 1974 Fair Credit Reporting Act OCCSSA and ECPA (“interception” as key) Employee Polygraph Protection Act Drug-Free Workplace Act Americans with Disabilities Act HIPPA (medical records) Privacy and Reputation (cont.) State statutes Acts going beyond federal protections: credit reporting, telephone interception Medical records Confidentiality and accuracy of employment records (E.g., Illinois record correction statute) Privacy and Reputation (cont.) Federal constitutional protections (I, IV, V, XIV) The public-private sector distinctions Public employees Private sector employees, government intrusion State constitutional protections “Clones” of federal language Extensions: California, Alaska Discrimination in Employment Federal constitutional protection (usually public workers) under the “Equal protection” clause Employment by government not a “fundamental right” (Murgia) Equal protection: only “intentional” discrimination forbidden Racial discrimination: “strict scrutiny” Gender discrimination: “intermediate level of scrutiny” Age: “rational basis” test Discrimination (cont.) Statutory bans Title VII (1964 Civil Rights Act, as amended in 1991) The Post-Civil War statutes ADEA ADA and the Rehabilitation Act Equal Pay Act Title IX of the Higher Education Amendments Act Title VII Theories of Discrimination and Burdens of Proof Disparate treatment: individual cases Plaintiff’s prima facie case: (a) protected status; (b) applied for job (or promotion, etc.); (c) qualified; (d) refused by employer; (e) job remained open. (Alternative: “smoking gun”) Employer response: articulate “legitimate, nondiscriminatory” reason for its action Plaintiff’s response: evidence that employer’s reason is a “pretext” Ultimate burden of proof: on plaintiff “Mixed motive” cases: Desert Palace (April 2003) suggests overlap with “pretext”; implications? Title VII (cont.) Disparate treatment: group cases Usual enforcement tool: Class actions under Rule 23 or “pattern or practice” action by EEOC Plaintiff’s proof usually statistical, based on null hypothesis that employer’s work force will “look like” either (a) community at large (jobs not requiring particular skills; or (b) actual or potential applicant pool (jobs requiring skill, licensure) What is the relevant “community”? What is a “significant” statistical disparity? Title VII (cont.) Disparate impact: The Griggs decision Plaintiff’s likely proof: An employer “practice” (such as use of a test score cutoff) has the effect of screening out significantly more men than women, more African Americans than whites, or the like. Employer’s likely response: Business need Special treatment for “professionally developed tests” and “bona fide seniority programs” Title VII (cont.) Sexual harassment “Quid pro quo” – near absolute liability “Hostile environment” Plaintiff must show conditions severe enough to “affect working conditions” Employer may defend on basis of effective program to combat such conduct Same sex harassment is a possible source of liability Equal Pay Act “Equal pay for equal work” – not “comparable worth” but very small differences in duties do not likely matter Exceptions: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” Wage and Hour Regulation Fair Labor Standards Act Contract Labor Standards Davis-Bacon (construction) Walsh-Healey (goods) Service Contract Labor Standards Act Portal-to-Portal Act Garnishment Restrictions State laws (wage payment, minimum wage) FLSA Minimum wage standard Overtime pay requirement Current: $5.15 an hour Current: 1 ½ the individual’s “regular rate” (not the minimum wage) for each hour over 40 in a work week Recent controversy: Amending the “white collar” exemptions, and thus eliminating overtime pay requirement for a (hotly contested, but significant) number of workers Pensions and Fringes ERISA Pensions (defined benefit, defined contribution, accrual, vesting, the “cash balance plan” controversy) Welfare plans (preemption of state law problems) Mandated benefits (FMLA, workers compensation, UI, etc.) OASDI and FICA (Social Security) Termination of Employment The traditional “at will” doctrines Breach of contract actions: the burden of proof and the interpretation rules Tort actions Judicial modifications The “public policy” exception Evidence of contract terms (and the “disclaimer” response) Duty of Good Faith and Fair Dealing Termination (cont.) Statutory protections Private sector Anti-retaliation bans (including “whistleblower” laws) General statutes: The “Model Act” and the Montana statute Public sector (merit systems and teacher tenure laws) Termination (cont.) General problems “Constructive termination” “Good cause” Using arbitration as a forum to determine whether a discharge was wrongful under an employment contract or a statute (Gilmer and its progeny) Collective Rights Common law hostility Federal Statutes affecting the Private Sector Railway Labor Act Norris-LaGuardia Act Wagner Act (NLRA) Taft-Hartley Act (LMRA) Landrum-Griffin Act National Labor Relations Act Section Section Section Section Seven: Statement of Collective Rights Eight: Unfair Labor Practices Nine: Selection of Representatives Ten: Enforcement Role of General Counsel as prosecutor National Labor Relations Board as specialized courtlike tribunal Review by Circuit Courts of Appeal Collective Rights (cont.) Enforcement of collective agreements The “Duty of Fair Representation” owed by union to workers it represents The typical grievance-arbitration system In negotiating In grievance handling Public Sector Statutes Do public sector workers need a “right to strike”?