Type
Quiz
Book Title
Business Law with UCC Applications 14th Edition
ISBN 13
978-0077733735

978-0077733735 Chapter 23 Lecture Notes

April 10, 2019
Chapter 23 - Employment Law
Chapter 23
Employment Law
I. Key Terms
Affirmative action (p. 567) Metadata (p. 572)
Business necessity (p. 565) Military caregiver leave (p. 562)
Collective bargaining agreement (p. 550) Qualifying exigency leave (p. 562)
Constructive discharge (p. 557) Quid pro quo sexual
Disability (p. 569) harassment (p. 567)
Disclaimer (p. 554) Reasonable accommodation (p. 570)
Disparate impact (p. 565) Retaliation (p. 558)
Disparate treatment (p. 565) Reverse discrimination (p. 567)
Employment-at-will (p. 549) Social media policy (SMP) (p. 572)
Employment contracts (p. 550) Undue hardship (p. 570)
Genetic Information Nondiscrimination Whistleblower (p. 572)
Act GINA (p. 570) Workers’ compensation (p. 562)
Grievance procedure (p. 550) Workplace harassment (p. 566)
Hostile work environment (p. 567) Wrongful discharge (p. 552)
Implied contract (p. 554)
II. Learning Objectives
1. Explain the doctrine of employment-at-will.
2. Itemize the statutory situations that fall outside employment-at-will.
3. Explain the contractual situations that fall outside employment-at-will.
4. List the wrongful discharge exceptions to employment-at-will.
5. Explain the after-acquired evidence rule.
6. Explain the laws regulating employee working conditions.
7. Outline the laws providing worker benefits.
8. Explain the evolution of the Civil Rights Legislation.
9. Explain the protections provided by the Age Discrimination in Employment Act.
10. Explain the nature of and the need for a social media policy.
III. Major Concepts
23-1 The Employment Relationship
Under the employment at will doctrine, an employer can dismiss an employee at any time
for any reason. Employees who belong to labor unions and individuals with the power to
negotiate their own employment contracts would not be affected by employment-at-will.
Wrongful discharge gives employees legal grounds for a lawsuit against employers who
have dismissed them unfairly. The courts have used several theories to judge the
injustice of a dismissal. These include promissory estoppel, fraud, implied contract,
implied covenant, public policy tort, and intentional inflection of emotional distress.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
23-2 Laws Regulating Employment Conditions
OSHA establishes and enforces occupational health and safety standards with which
employers must comply. The principal federal law affecting the wages and hours of
employees is the Fair Labor Standards Act. The act provides that workers in interstate
commerce or in an industry that produces goods for sale in interstate commerce must be
paid no less than a specified minimum wage. The federal Immigration Reform Act of
1986 created a national employment verification system that placed responsibility on the
employer for verifying the identity and employment of all employees.
23-3 Worker Benefits
Federal and state governments participate in programs designed to reduce the financial
risk to workers by reason of their unemployment, disability, hospitalization, retirement,
and death. The principal federal law covering these risks is the Social Security Act of
1935. Under the Federal Unemployment Tax Act, each state operates its own
unemployment insurance system, subject to conditions established by the federal
government. Workers’ compensation laws are in effect in all states. These statutes
compensate covered workers or their dependents for injuries, disease, or death that
occurred on the job or as a result of it. ERISA provides needed supervision over
employee pension plans established by many employers. Under provisions of the Family
and Medical Leave Act (FMLA), employers who have 50 or more employees must give
those employees up to 12 weeks of leave time for child, spousal, or parental care.
23-4 Equal Employment Opportunity
The Civil Rights Act of 1964 prohibits discrimination based on race, color, creed, gender,
and national origin. Employees who believe they have been discriminated against can file
a complaint with the EEOC. Discrimination can be committed in one of two ways:
disparate treatment or disparate impact. Other steps toward equality in employment
include the Age Discrimination in Employment Act, the Uniformed Services
Employment and Reemployment Rights Act, and the Americans with Disabilities Act.
23-5 Social Media Policies
A social media must be written in a language and a style that is precise, exact, plain, and
explicit. The policy must also be given to the employees with the understanding that they
will read and comprehend the details of the policy. Moreover, employees must be told
that the employer intends to monitor their e-mail accounts and their online work. The
employer must also let the employees know what activities are forbidden. In addition, it
would be helpful to outline what activities are acceptable when using social media in the
workplace. Once the policy has been written and explained to the employees, each of
them should be given two copies of the policy. The employer should reserve the right to
make alterations in the policy. The employer needs to remember that even after the policy
is distributed and the employees have been warned, there are limits to what an employer
can do about violations of the policy.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
IV. Outline
I. The Employment Relationship (23-1)
A. Employment-at-Will
1. Most jurisdictions in the United States still follow the doctrine of employment-at-will
which states that an employer can dismiss an employee at any time for any reason.
2. The rationale for employment-at-will is that both the employer and the employee
should be free to terminate the employment relationship at any time.
3. The law has created certain exceptions to the general rule of employment-at-will
falling into three categories: contractual exceptions, statutory exceptions, and court
created wrongful discharge exceptions.
B. Contractual Exceptions
1. Individuals with unique abilities, special talents, or a highly specialized education
often have the power to negotiate their own employment contracts.
2. Such individuals would not be affected by employment-at-will.
3. A collective bargaining agreement is a contract negotiated by an employer and a labor
union covering all issues related to employment.
C. Contractual Details
1. To be valid and enforceable, a contract must contain some key details.
2. The following details add a level of certainty, honesty, and seriousness.
a. If appropriate, a provision outlining the length of time the employment relation
will last or a statement that, even given the establishment of a contract,
employment remains at will.
b. A section identifying the parties and identification of which is the employer and
which is the employee.
c. A statement that the employer expects the employee to know and obey rules and
codes.
d. For arrangements that are not at will, information regarding discipline and causes
for discharge.
e. A clause establishing the need for confidentiality.
f. A section explaining the employee’s access to electronic systems, the employers
ownership, that employees have no expectation of privacy, and that work will be
monitored.
g. A statement that the contract may be assigned only to the employers successors.
h. A choice-of-law provision.
i. A statement, if applicable, indicating whether arbitration is required and details.
j. A section addressing any tax issues associated with the employment agreement.
k. A section on separation pay.
l. A section that includes details of compensation.
m. A section outlining the termination process.
n. A section explaining any change of control provisions.
o. A restrictive employment covenant including trade secret protection.
p. A section outlining any indemnification provisions.
q. A section that permits the employee to seek the advice of an attorney before
committing to the arrangement.
D. Statutory Exceptions
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
1. The federal government has passed legislation altering the at-will doctrine.
2. The government has been interested in protecting employees from discrimination
based on race, color, creed, national origin, and gender.
3. Later, statutory law was passed to prevent discrimination based on age, disability,
service in the armed forces, and from hardship resulting when a business is closed or
moved.
4. The employment-at-will rule is limited by civil rights legislation.
5. Due to civil rights legislation, an employer cannot discharge an employee if the only
reason for the discharge is membership in one or more of the protected classes.
6. Many employers who contemplate mass layoffs and/or plant closings must comply
with the provisions of the Worker Adjustment and Retraining Notification Act
(WARN).
7. With some exceptions, employers with over 100 full-time employees must give notice
at least 60 days before a plant closing or mass layoff.
E. Wrongful Discharge
1. Wrongful discharge, also referred to as unjust dismissal, gives employees legal
grounds for a lawsuit against employers who have dismissed them unfairly.
2. Theories of wrongful discharge include promissory estoppels, fraud, implied contract,
implied covenant, public policy tort, and the intentional infliction of emotional
distress.
3. Promissory estoppel involves (1) a promise made by an employer that (2) the
employer could reasonably expect would be relied on by the employee (3) reliance by
the employee resulting in the employee doing or refraining from doing something and
(4) harm to the employee.
4. Some states permit an employee to bring a wrongful discharge based on fraud which
generally only applies to false promises made by a prospective employer to a possible
future employee who then relies on those promises to his or her detriment.
5. Implied contract involves an employment relationship that would have been at-will
had the employer or an agent of the employer not said, done, written, or printed
something that created a workplace environment that implying the existence of a
contract.
6. Many jurisdictions recognizing the implied contract exception still allow employers
to preserve an employment-at-will arrangement by using a disclaimer although, even
then, a disclaimer might prove ineffective if the employer made a specific promise.
7. An employee who can prove that his or her discharge somehow violated public policy
may recover damages in tort.
8. Public policy is the broad legal principle that says that the courts will not allow
anyone to do anything that injures the public at large.
9. An employee in some jurisdictions may be able to rely on the theory of implied
covenant which holds that there is an implied promise in any employment
relationship that the employer and the employee will be fair and honest with each
other.
10. An employee may attempt to recover damages for the intentional infliction of
emotional distress if the conduct of the employer in the discharge of the employee
caused serious mental and emotional suffering.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
11. To succeed in an action based on the intentional infliction of emotional distress, a
plaintiff must prove that the employers conduct was extreme, that the employer knew
the conduct was extreme and would result in emotional distress, and that the conduct
was the proximate cause of serious mental and emotional suffering.
F. After Acquired Evidence Defense
1. The after acquired evidence defense is applied when an employer uncovers evidence
that reveals that the employer could have legitimately discharged the employee, even
if the employee’s claims of wrongful discharge prove to be true.
2. This defense is often raised as grounds for granting a summary judgment.
G. Retaliation and Constructive Discharge
1. Sometimes employers will engage in conduct that adversely affects the employee’s
working conditions without actually terminating the employment relationship itself
leading to a constructive discharge involving the employee’s “voluntarily” leaving the
job.
2. In some states, a constructive discharge is actionable in court.
3. If the constructive discharge is conducted as retaliation for an employee’s actions, the
lawsuit may be found not only in tort law, as in public policy tort, but also in federal
legislation for types of protected employee action.
II. Laws Regulating Employment Conditions (23-2)
A. Health and Safety Laws
1. On the state level, departments of labor and health may be charged with determining
whether an employer is complying with state health and safety laws.
2. On the federal level, the Occupational Safety and Health Administration establishes
and enforces occupational health and safety standards with which employers must
comply.
B. Fair Labor Standards Act
1. The Fair Labor Standards Act requires that workers in interstate commerce be paid no
less than a specified minimum wage, provides that workers cannot work for more
than forty hours per week unless they are paid time and a half for overtime, prohibits
the employment of children under the age of fourteen, and prohibits the use of
“oppressive child labor”.
2. The wage and hour provisions of the FLSA permit the employment of learners,
apprentices, and messengers at less than minimum wage.
3. The wage and hour provisions of the FLSA, with certain exceptions, do not apply to
people employed in an executive, administrative, or professional capacity.
4. Certain other employees, such as government employees, are also exempted from the
wage and hour provisions.
C. Identity and Employment Eligibility
1. The federal Immigration Reform Act of 1986 created a national employment
verification system that placed responsibility for verification of the identity of all
employees on the employer.
2. Job applicants must present original documentation.
III. Worker Benefits (23-3)
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
A. Social Security
1. Under the Federal Insurance Contributions Act, both employers and employees are
taxed equally to help pay for the loss of income of workers upon retirement.
2. The employee’s contribution is held back by the employer who then provides a
matching contribution.
3. The Social Security Administration will pay benefits to retired workers who are
eligible under the plan.
B. Unemployment Insurance
1. The unemployment insurance section of the Social Security Act provides for a joint
federal and state system of unemployment insurance.
2. Under the Federal Unemployment Tax Act, each state operates its own unemployment
insurance system, subject to conditions established by the federal government.
3. In order to receive unemployment insurance, unemployed individuals must be ready,
willing, and able to work.
C. Workers’ Compensation
1. Workers’ compensation laws are in effect in all states.
2. The statutes compensate covered workers or their dependents for injuries, disease, or
death that occurred on the job or as a result of it.
D. Pension Plan Regulation
1. The Employee Retirement Income Security Act (ERISA) provides needed supervision
over employee pension plans that are established by many employers.
2. Under the act employers must place their pension contributions made on behalf of
employees into a pension trust, independent of the employer; and other specific
regulations are also in place.
E. Family and Medical Leave Regulation
1. Employers with fifty or more employees at the workplace, or within 75 miles of the
workplace, must give employees up to twelve weeks of leave time in a twelve-month
period for child, spousal, or parental care, or for the employee’s own serious medical
condition if that condition necessitates either in-patient treatment or medical care on a
continuing basis.
2. The leave time may be unpaid, but it must not jeopardize the job of the employee.
3. There are employment requirements for qualification purposes.
4. Leave may be taken intermittently.
5. Congress amended the Family Medical Leave Act in 2009 to accommodate military
caregivers.
a. Under these new provisions, an employer must give an employee up to 26 weeks
of leave time in a 12-month period to care for a family member who has sustained
a serious illness or injury that occurred because of military service.
b. In addition, employees are permitted to use as much as 20 weeks to take care of
certain nonmedical emergencies during the time that a spouse, child, or parent is
on active duty in the military.
IV. Equal Employment Opportunity (23-4)
A. Civil Rights Legislation
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
1. The process of establishing civil rights legislation began in the 19th century in the
wake of the Civil War with the adoption of three major constitutional amendments -
Amendment 13 abolishing slavery, Amendment 14 guaranteeing due process and
equal protection of the law, and Amendment 15 guaranteeing voting rights.
2. The above sections all end with the provision that “Congress shall have the power to
enforce this article by appropriate legislation.”
3. It is now indisputable that all of the principles set forth in the Bill of Rights and all
subsequent rights-oriented amendments must be protected by the states as well as by
Congress.
B. The Equal Pay Act
1. The Equal Pay Act set the stage for the Civil Rights Act of 1964.
2. Under provisions of the federal Equal Pay Act, employers must pay women the same
amount that they pay men for the same job.
C. Title VII of the Civil Rights Act of 1964
1. The Civil Rights Act of 1964 covers more than employment.
2. The Civil Rights Act of 1964 outlaws discrimination in such things as housing, travel,
accommodations, and education.
3. The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion,
gender, and national origin.
4. Employees who believe they have been discriminated against can file complaints with
the Equal Employment Opportunity Commission (EEOC) or state deferral agencies.
5. Discrimination can be committed through disparate treatment or disparate impact.
a. Disparate Treatment
(a) In cases of disparate treatment, the employer intentionally discriminates
against an individual or a group belonging to a protected class.
(b) In some cases, but not those involving racial discrimination, a claim of bona
fide occupational qualification may be used as a defense.
b. Disparate Impact
(a) Discrimination through disparate impact, also called adverse impact, occurs
when an employer has a policy that on the surface seems neutral but in
practice has an unequal and unfair impact on the members of one or more
protected classes.
(b) Business necessity may be a defense.
6. Courts have witnessed an increase in the number of workplace harassment claims.
7. The first type of harassment claims were sexual harassment claims.
a. Quid pro quo sexual harassment occurs when a supervisor makes unwelcome
sexual advances towards a subordinate or suggests that the subordinate trade
sexual favors for preferential treatment.
b. A hostile work environment occurs when misconduct pervades the workplace to
the extent that conditions become distressing, offensive, or hostile.
8. The law has begun to recognize that a hostile work environment need not be limited
to sexual situations and may involve religion, color, creed, or national origin.
9. Affirmative action refers to a practice by which an employer actively pursues a policy
that will reduce the effects of past discrimination in the workplace.
a. Affirmative action is neither mandated nor prohibited by the Civil Rights Act.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
b. Generally affirmative action plans come from a court order as the result of a court
case.
c. Reverse discrimination is a term that refers to a practice that is designed to
eliminate discrimination against the members of a protected class, but has the
opposite effect on other members of that class or on the members of another
protected class.
d. To respond to claims of reverse discrimination, the Supreme Court has issued
guidelines including that affirmative action plans promote a compelling state
interest and be finely drawn to minimize harm to workers not included in the plan.
D. Amendments to the Civil Rights Act
1. Congress has amended the Civil Rights Act many times with a major overhaul
occurring in 1991 to revitalize the doctrine of disparate impact and expand available
remedies.
2. The 1991 amendments mandated that American businesses must give U.S. citizens
working abroad the same protection against discrimination given to workers in the
U.S.
3. The 1978 amendment to Title VII of the Civil Rights Act makes it clear that
employers cannot discriminate on the basis of pregnancy.
4. Amendments to the Equal Pay Act specify that the time limit for filing a claim with
the EEOC begins to run every time the worker is paid and adds additional remedies.
5. In after acquired evidence cases, the EEOC has adopted an approach applying only to
cases involving the EEOC that the Commission will not require that the employer
rehire the claimant, nor will the Commission attempt to recover backpay or
compensatory damages that arise after the time that the after acquired evidence was
obtained, but the EEOC will still seek punitive damages in such cases.
E. Age Discrimination in Employment Act
1. For employers who come within the provisions of the act, the ADEA prohibits
discrimination on the basis of age for persons forty or older.
2. The ADEA is administered by the EEOC.
3. If age is a true job qualification, the law does not apply.
4. An amendment to the act called the Older Workers’ Benefit Protection Act (OWBPA)
makes it clear that the ADEA forbids discrimination against older workers in the
handling of their employee benefit and retirement plans.
5. The OWPBA also gives older workers legal recourse if they are forced or tricked into
giving up their rights under the ADEA.
F. Uniformed Services Employment and Reemployment Rights Act
1. Under USERA an employee who has served in the armed forces and who has
successfully completed his or her tour of duty is entitled, upon returning to work, to
be reinstated in his or her previous job position.
2. The USERA is administered by the Office of Veterans’ Employment and Training
Service.
G. Americans with Disabilities Act
1. The act is divided into titles referencing private-sector employers and public services
and transportation.
2. A disability is any physical or mental impairment that substantially limits one or more
of the major life activities.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
3. The ADA forbids discrimination on the basis of disability if the disabled individual
can do the essential functions of the job with “reasonable accommodations.”
4. An accommodation will be reasonable if it permits the disabled individual to
accomplish the essential functions of the job without imposing an undue hardship on
the employer.
5. The ADA also prohibits discrimination on the basis that a person is associated with a
disabled person.
H. The Genetic Information Nondisclosure Act.
1. The Genetic Information Nondiscrimination Act (GINA). GINA was written to
protect employees by making it unlawful for employers and health insurance
companies to make decisions based on any genetic information that they have
acquired due to any type of genetic testing.
2. Employers, unions, employment agencies, and joint labor–management committees
cannot request, require, or purchase genetic information, unless required by law, used
to protect individuals from toxic substances, or as part of a forensic investigation for
law enforcement purposes.
I. The Whistleblower Acts
1. A whistleblower can be defined as an individual who notifies official federal or state
authorities about illegal activities that take place in business, government, and other
similar settings.
2. The fact that whistleblowers can often be subjected to retaliatory actions by
employers, landlords, law enforcement officials, and other authority figures has
prompted the passage of federal and state laws that protect individuals who have
identified and reported cases of fraud, discrimination, cover-ups, and other similar
illegal activities to the appropriate watchdog agencies.
J. Anti-Retaliation Safeguards
1. Employees may face retaliation after filing a complaint, cooperating with
investigations, or working against discrimination.
2. To demonstrate that retaliation has occurred, an individual must show:
a. that he or she is in a protected class;
b. that retaliation did take place; and
c. that the retaliation took place because of an action that is protected under the law.
3. Protected classes include, race, color, creed, national origin, gender, age, and
disability.
V. Social Media Policies
A. The Social Media Culture
1. To the business person it is not just the devices that are important—is the data itself.
2. Keeping trade secrets and protecting a client’s or an employee’s privacy may also
mean protecting data and, at times, metadata which is data about data
B. The Nature of a Social Media Policy
1. Every business needs to write and enforce a social media policy.
2. A social media policy (SMP) is a set of rules written by an employer telling
employees what they can and cannot do when using electronic communication
devices, formats, websites, and other electronic messaging techniques, such as blogs ,
text messages, tweets, skype transmissions, and e-mails.
C. The Hazards Involved in Social Media
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
1. Social media can be used to disclose trade secrets or other company information that
is best kept confidential.
2. It can be used to harass fellow workers or customers or to defame them or perhaps to
invade their privacy.
3. There are also legal limits set down by the Federal Trade Commission that might be
violated inadvertently by the improper use of social media.
4. The Proper Way to Construct a Social Media Policy
a. The policy must be written in a language and a style that is precise, exact, plain,
and explicit.
b. The policy must be given to the employees with the understanding that they will
read and comprehend the details of the policy.
c. Employees must be told up front that the employer intends to monitor their e-mail
accounts and their online work.
5. The Content of a Social Media Policy
a. The employer must let the employees know what activities are forbidden.
b. It would be helpful to also outline appropriate activities.
6. The Procedures Associated with a Social Media Policy
a. Once the policy has been written and explained to the employees, each of them
should be given two copies of the policy, one to sign and return for their personnel
file and one to keep as a reminder of what is expected of them.
b. The employer should reserve the right to make alterations in the policy as
experience reveals situations and events that were not predicted by the original
policy.
c. It is also crucial for the employer to remember that, even after the policy is
distributed and the employees have been warned, there are limits to what an
employer can do about violations of the policy.
7. Bring Your Own Device Clauses
a. Many employers are permitting, and some encouraging, employees to bring their
own devices to work which are then programmed by the firm’s IT experts, who
create secure work areas for e-mail, employee forms, and other work-related files.
b. Some employers prefer to provide workers with company-owned devices that are
programmed by the IT department to include separate areas for the employee’s
personal use.
c. Whichever technique is adopted, the employer must make certain that the social
media policy makes it clear that these devices are subject to surveillance and that
all work-related data on such devices is company-owned and must, therefore,
remain confidential.
V. Background Information
A. Cross-Cultural Notes
1. In the late nineteenth century, German chancellor Otto von Bismarck instituted the
first government program of social insurance to diffuse the influence of socialist and
communist organizations on industrial workers. The social insurance system was
modeled after the German “benefit societies” of skilled tradesmen and unions, which
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
provided compensation to tradesmen and apprentices who became ill or were injured
on the job.
B. Historical Notes
1. The origins of the employment-at-will doctrine date to the 1890’s when factories
claimed they needed to be free to hire and fire at will to operate their businesses
profitably. An 1884 case, Payne v. Western & Atlantic RR, 81 Tenn. 507 (Tenn. 1884),
established this legal doctrine, and subsequent cases broadened its application to all
types of jobs in private industry.
2. Government relief programs were operating in many European countries by the late
nineteenth and early twentieth centuries. Most of the programs were joint plans in
which the government assisted unions in paying out-of-work benefits to union
members. In 1911, the British Parliament established the world’s first compulsory
unemployment insurance plan, based on contributions from employers and employees
combined with state subsidies. By 1930, ten other European nations had adopted
similar programs. A U.S. system of unemployment insurance was instituted with the
Social Security Act of 1935, in response to severe unemployment during the Great
Depression.
3. Britain’s Workmen’s Compensation Act of 1897 was the prototype for the majority of
compensation acts passed in the United States in the early 1900s. It limited
compensation to workers in hazardous jobs and required employers to cover
compensation without the benefit of insurance. The act only covered injuries or
fatalities “arising out of and in the course of employment,” a phrase found in most
U.S. compensation statutes.
4. The Civil Rights Act of 1964, as originally introduced in Congress, did not include
any mention of discrimination on the basis of sex. Sex discrimination was added at
the last minute by conservative southern opponents of the bill who thought that it
would be considered so ridiculous that it would kill the entire bill when Congress
finally voted on it.
C. State Variations
1. Indiana, Missouri, Montana, and Oklahoma have statutes requiring an employer to
provide discharged employees with written statements about their work history,
known as “service letters,” within a prescribed period of time. All of these states
require that the letters contain an explanation for the employee’s discharge.
2. The federal government, along with most states, have laws that make it illegal for
employers to fire or otherwise punish employees for taking time off to serve on juries.
California, Illinois, Nebraska, and Ohio require that employers be given reasonable
notice that a leave for jury duty will be needed. Most states also make it illegal to fire
someone for reporting employers’ violations of law (“whistle blowing”).
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
3. In New Jersey, the state’s law against discrimination prohibits bias based on
consideration of age. Eighteen other states have similar antidiscrimination statutes,
with no minimum age.
D. Quotations
1. (T)he success of vicarious liability statutes and workmen’s compensation provisions
in the law suggest that in order to secure accident deterrence we need not penalize
those at fault (or likely to be at fault) in causing injuries. In the case of workmen’s
compensation, employers have shown a remarkable facility for improving safety
conditions—and thereby reducing the number of accidents—when, regardless of
personal culpability, they have been placed in the position of standing to lose in virtue
of increased accident costs.
Jeffrie Murphy and Jules Coleman, Philosophy of Law (Boulder, CO: Westview Press
1990), p. 151.
VI. Terms
1. Most people agree that getting fired is a consequence of doing something wrong at
work. Other terms, such as dismissal, discharge, layoff, staff cut, and downsize are
euphemisms for firing often used by employers to prevent bad community relations,
anti-company sentiment among employees, and wrongful discharge lawsuits. To refer
to mass firings, some companies have coined such expressions as reorganizational
incentives and activity analysis and review.
2. The EEOC and the United States Supreme Court accepted this nineteenth-century
definition of race in the Civil Rights Law of 1866, Section 1981: “any ethnic
minority.”
VII. Related Cases
1. In Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), the plaintiff
claimed that her employer, Costco, failed to offer her a reasonable accommodation
after she alerted the employer to a conflict between the company’s no facial jewelry
code and her religious practice as a member of the Church of Body Modification. On
appeal, the court ruled that Costco had no duty to accommodate the plaintiff because
it could not do so without undue hardship and that Costco was, therefore, entitled to a
summary judgment ruling in its favor.
2. Under a church-devised apprenticeship program, members of the Shiloh True Light
Church of Christ, a separatist religious sect near Charlotte, North Carolina, employed
children as young as ages nine and ten in woodworking and masonry. Children laid
bricks and cinderblocks, hauled mortar, operated power saws and forklifts, and
sometimes worked on rooftops and scaffolds. When the church was sued for violating
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
child labor laws, it claimed that the labor was part of the children’s religion and there-
fore was protected under the constitutional free exercise of religion clause. In Brock v.
Wendell’s Woodwork, Inc., and Brock v. McGee Brothers Co. 867 F.2d 196 (4th Cir.
1989), the court found that enforcing labor laws to ensure children’s safety overrides
any argument for free exercise of religion.
3. In Hudgens v. Prosper, Inc., 243 P.3d 1275 (Utah 2010), claiming that a former
supervisor subjected him to waterboarding as part of a motivational exercise, the
plaintiff brought claims for assault and battery, intentional infliction of emotional
distress, wrongful termination, and interference with a contractual relationship against
the supervisor and his former employer. The plaintiff allege that after the
waterboarding experience, the supervisor told other employees that they should work
as hard at making sales as the plaintiff had worked at trying to breathe. The
defendant moved for dismissal for a number of reasons including the exclusivity
provisions of the state’s workers’ compensation system. The district court dismissed
the plaintiffs claims. On appeal, the court ruled that the lower court abused its
discretion in denying the plaintiff leave to amend and erred in dismissing the case.
VIII. Teaching Tips and Additional Resources
1. The Equal Employment Opportunity Commission has a wealth of information,
including information on discrimination by type, available at http://www.eeoc.gov/.
2. Ask students to discuss their thoughts regarding the solvency of the social security
system. An interesting project would be for students to research the expected life
span of Americans when the social security system was instituted as opposed to today.
Additionally, ask students to research borrowings from social security by other
federal agencies. The Internet site for the Social Security Administration containing
detailed information regarding social security is at http://www.socialsecurity.gov/.
3. A fact sheet from the U.S. Department of Labor on the Uniformed Services
Employment and Reemployment Rights Act is available at
http://www.dol.gov/vets/programs/userra/userra_fs.htm.
4. Additional information regarding the Americans with Disabilities Act is available
from the U.S. Department of Justice at http://www.usdoj.gov/crt/ada/adahom1.htm .
5. The U.S. Department of Justice provides extensive information on the Americans
with Disabilities Act at http://www.ada.gov/.
6. The federal Occupational Safety and Health Administration has an Internet site at
http://www.osha.gov/ with extensive information on safety and health topics at
http://www.osha.gov/SLTC/index.html.
7. The U.S. Department of Labor has information regarding wage and hour
requirements at http://www.dol.gov/dol/topic/wages/.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
8. The U.S. Department of Labor has a fact sheet on the Worker Adjustment and
Retraining Notification Act at http://www.doleta.gov/programs/factsht/warn.htm.
9. The EEOC has a number of press releases regarding its activities. An article titled
“Potato Packing Companies to Pay $450,000 to Settle EEOC Suit for Sex Harassment
and Retaliation” is available from the EEOC at
http://www.eeoc.gov/eeoc/newsroom/release/10-7-15.cfm.
10. The Social Security Administration provides information regarding benefits for
people with disabilities at https://www.ssa.gov/disability/.
11. Ask four students to volunteer to conduct a panel discussion on the pros and cons of
employment-at-will. Have two students take the position of the employer and two
students take the position of the employee.
12. Explain to students that, absent a written employment contract, the practice of giving
an employer a notice of two weeks or more before resigning is a traditional
professional courtesy and not a legal requirement.
13. Explain to students that, with the erosion of the employment-at-will doctrine, labor
lawyers often recommend putting disclaimer statements on employment application
forms and in employee handbooks.
14. Lead students in a discussion of whether they think the after acquired evidence
defense is fair to employees. Alternatively, you may wish to organize the class into
debate teams to resolve the following question: Is it fair that an employer can defeat a
valid claim for wrongful discharge by finding later evidence that could have been
used to fire the employee?
15. Emphasize to students the importance of documentation in proving a wrongful
discharge claim by an employee. Both employers and employees should keep detailed
records of written and oral statements and actions regarding job performance and the
circumstances leading to a firing. It is especially important that there be witnesses to
the statements. Discuss with students the best possible method of documenting
incidents.
16. Inform students that employers are also required under WARN to give sixty days
notice of staff reduction to the appropriate unit of local government.
17. Have students research averages wage for women and for men. Discuss what
accounts for any disparity.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
between men and women in the Social Security system. Students should examine the
ways in which the system discriminates against women who are divorced, widowed,
disabled, or who work at home. Ask students to devise strategies for eliminating these
inequities.
18. Some companies provide family leave benefits in addition to those required under the
FMLA. Have students research various businesses to find out what additional benefits
these businesses offer their employees. For example, some companies allow their
employees some or all of the following: short-term disability plus child care leave;
full leave for a limited number of months; length of disability determined on
individual cases; a percentage paid disability two weeks prior to childbirth for a
specific number of weeks; disability for a limited period at a percentage of the
employee’s salary; unpaid child care leave when disability ends; and job security for a
limited number of months while on leave.
19. Students may think that quotas for hiring exist under affirmative action programs.
However, it is illegal for an employer to specify that he or she is seeking to hire a
member of a particular minority or ethnic group in job advertisements, even for the
purpose of fulfilling conditions of affirmative action programs.
20. The Equal Employment Opportunity Commission (EEOC) Guidelines on
Discrimination Because of Sex provides: Where employment opportunities or
benefits are granted because of an individual’s submission to the employers sexual
advances or requests for sexual favors, the employer may be held liable for unlawful
sex discrimination against the other person who was qualified for but denied that
employment opportunity or benefit.
21. Advise students that if they send letters to employers or employees about contentious
legal issues, they should send them as certified mail because the receiver has to sign
for the mail to obtain it. In this way, if necessary, the dates on which the letters were
sent and received can be proved.
22. In some states, but not all, conversations may be recorded without permission if the
person recording is a party to the conversation. Have students research laws
involving tape recording conversations in their states.
23. Make sure students are aware that an employee’s burden to prove age discrimination
includes producing the following evidence: The employee 1) was forty years old or
older; 2) was terminated or demoted; 3) was doing a good enough job to meet the
employers legitimate expectations; and 4) was treated less favorably than those
employees under the age of forty.
24. Inform students that in many cases, a victim of discrimination may end up having to
pay little or nothing for litigation.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.
Chapter 23 - Employment Law
25. Challenge students to research the standards established by the Americans with
Disabilities Act and compare them with the standards of the Rehabilitation Act of
1973, including the amendments of 1974 and 1978.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.