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EMPLOYER AND EMPLOYEE RIGHTS AND DUTIES
GENERAL COMMENTS
A commonly heard comment is that the only constant is change. This observation surely applies to the
world of work. Employment law is a dynamic area of law, and keeping up with its changes is difficult.
In this chapter your students are alerted to:
• the sweeping developments in the decline of traditional farm and factory labor and the
concomitant expansion of service activities.
• the continuing equalization in the roles of workers and of their participation regardless of gender,
race, age, disability, national origin, or color.
Remind your students that during a typical lifetime, most of them will hold a series of jobs. This is
certainly more likely to be true for the generation now in college than it was for the baby-boomer
generation. Initially the jobs are likely to be part-time and of a comparatively simple and repetitive nature.
Typically, full-time employment begins soon after the final session of formal classroom education. A few
people find their niche at the outset and remain there until retirement, perhaps 40, or 50, or even 60 years
later. Most individuals, however, change the nature of their careers and/or employers from time to time
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of their employment because of the thousands of variations that exist in the job market. What is
predictable is that many of our students will be employees during most of their lifetimes. Other students
will someday own business firms, and will hire others. Even domestic life is taking on the characteristics
of employment as home-office work grows. These facts alone make the careful study of this chapter
highly relevant for all students.
CHAPTER SUGGESTIONS
1. Many excellent community resources are available to assist your presentation of this chapter. You
might consider a guest speaker from among the following sources:
potentially an interesting topic itself. If true in your area-why?
c. Contact the local bar association and ask their spokesperson to suggest names of lawyers who
specialize in advising unions, and those who specialize in organizing and advising small
business corporations and partnerships, who would be willing to discuss their observations of
problems and opportunities in the respective areas. The business lawyers should be able to refer
you to reputable representatives from two other relevant specialty fields: business brokers who
assist in the sale and purchase of existing business firms, and agents of major franchisors of
small business firms.
2. For a special extra-credit report that can generate keen interest, invite a team of two or three
students to:
a. select one specific business firm (e.g., a locally owned business, or a franchise, or an outlet or
branch of a national company) in your community which is generally considered to be a
Employer and Employee Rights and Duties 3
desirable place of employment for a lifetime career; and through library research and personal
interviews, obtain information on the product(s) and/or service being produced and marketed;
on the overall size of the field nationally, in terms of employees and volume of business
(federal Census Bureau statistics can help); on the wage, salary, and profit levels; and on the
3. Select a representative local small business, and through the office of its chief executive, invite a
staff member to discuss how the business is impacted by:
a. civil rights legislation, including affirmative action programs;
b. the influence of unions on prevailing scales of wages, even if the firm is not unionized;
c. applicable regulations of the Environmental Protection Agency (EPA) and their effect on prices
4. Invite employers and various staff specialists (e.g., personnel officers, accountants, risk
managers, legal counsel, etc.) to visit the class and to discuss legal problems in the
workplace.
5. Usually, the school’s audio-visual media center can provide helpful learning aids that are related to
employees, employers and employment practices. Consultation with the person in charge of such
materials is likely to provide an abundance of choices that can inject added realism and relevance
into class discussions. See also suggestions provided in the introduction to this manual.
6. Highly articulate, and passionately opinionated, representatives on both sides of the bargaining
table often handle labor-management relations. Such persons are usually willing to talk to student
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7. Films and videos for this chapter include:
Special Note: On page 636 of the text we refer to the trial of Rena Weeks v. Baker & McKenzie, the
world’s largest law firm. West’s Legal Studies Video Library has a video. Baker & McKenzie: The
Price of Harassment: A Firm on Trial ISBN: 0-324-00647-0; 1994; 46 minutes
Other West videos include:
• “Cherry v. Coudet Brothers — Mommy Track: Discrimination or Downsizing”
• “PriceCostco: Ethics & Social Responsibility and Employment Practices”
The author of this Chapter’s IM also listens to podcasts during exercise or on my drive to work.
The NPR Business Story of the Day is timely as is the NPR Story of the Day which very often has
stories reflecting on employment issues.
9. For those professors who are using the Law Around the World feature in the text there is an
interesting article called “Your Fired,” in ABA Journal May 2007 page 48. It discusses different
countries views on employee termination including issues related to firing expatriate workers while
working in the United States.
10. A series of articles in the Sacramento Bee in early 2007 discussed California laws which give a
private right of damages to disabled persons denied access to businesses. Using the Unruh Civil
Employer and Employee Rights and Duties 5
FOR CRITICAL ANALYSIS
Price Waterhouse v. Hopkins
1. This case is about gender discrimination, not sexual harassment, which is a subset of gender
discrimination. Ms. Hopkins’ complaint was differential treatment, as she claimed a decision not to
2. This is a discussion question, but clearly explanations need to be given carefully. Perceptions are
critical in this area of social intercourse and law.
3. The Court held that if a plaintiff could prove through direct evidence that a discriminatory factor
played a motivating part in the employer’s decision, then the burden of persuasion shifted to the
4. No, it was remanded back to court for further proceedings. Check with your local partner of now
Price-Waterhouse-Coopers to see if they know the outcome and whether they will tell you if they
do.
Gonzales v. Southwest Security and Protection Agency, Inc.
1. Intentional torts are not usually reasonable or expected activities of employees. However, in this
situation the employees were security guards and the use of force was foreseeable and even
expected. Employers are not usually liable for an employee’s intentional torts. What was it about
this fact situation that persuaded the court to hold the employer liable?
ANSWERS TO QUESTIONS AND PROBLEMS
1. There are no clear-cut answers to these questions. The following comments might be used to open
the class discussions.
a. We are unaware of any empirical studies that show that minimum-wage laws discourage
employment of young persons. Since all employers are required to pay the minimum wage, any
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added labor cost can be, and usually is, simply passed on to the consumer in the form of higher
prices. Economists may argue that this could reduce the sales of goods for which demand is
elastic (and responsive to price changes).
d. These laws do not appear to have been a major cause of decline in union membership, if indeed
that is the hope of those who favor such legislation. Most states have refused to enact such laws,
and there is no pressure to enact a federal right-to-work law. The existence of such legislation
may actually engender animosity between employees and employers, and this is not likely to
improve productivity or the wages and profits that depend on productivity.
f. No serious observer suggests that unions are in fact obsolete. They have experienced serious
problems and a loss of members in key industries where employment (of line and staff workers,
and of middle-level managers) has declined because of technological changes and foreign
competition (e.g., in banking and finance; and in the steel, automobile, textile, and printing
industries). On the other hand, unions have enjoyed considerable success in service fields such
as education and government, in which salaries and wages have often lagged behind inflation.
There may be a big jump in membership if a business downturn leads to further major cost-
cutting efforts at the expense of workers’ wages or security, and especially if employers are
required to rehire all strikers after strike’s end. Under current law, replacements for strikers
who walk out during economic strikes may be retained as permanent employees.
Employer and Employee Rights and Duties 7
h. In all likelihood, gradual increases in the normal retirement age can be expected. Meanwhile,
Congress already has begun to tax some Social Security benefits received by individuals in the
upper income brackets. Congress continues to wrestle with proposals to impose further income
taxes on Social Security benefits.
i. There is strong opposition to rigid quotas for employment or educational opportunity
(especially admission to colleges, universities and graduate schools). Quotas rigidly and
somewhat arbitrarily decree who shall work or go to school, based, for example, on color or sex,
rather than on ability or merit. This, it is said, violates the fundamental principle of equal justice
under law and should not be mandated by law. What often is overlooked is that in many jobs,
virtually every applicant apparently has adequate “merit,” which is intangible, and impossible
to measure with precision. What is to be done in these circumstances — employment by lottery?
2. An employer’s handbook or personnel bulletin may state that, as a matter of standard practice,
workers will be dismissed only for good cause. If the employee is aware of this policy and works
for the company relying on it, an implied contract of permanent employment may exist. The
3. The court held that the firing violated public policy, stating: “Whistle blowing activity that serves a
public purpose should be protected. As long as employees’ actions are not merely private or
4. a. & b. To such questions, some amoral, cynical, and greedy profiteers might respond with this
quick answer: “You bet! Business is business.” Under closer scrutiny, they might even
backtrack or qualify their answer; they might add “…only if you are sure you can get away
with it.” But one can’t be sure, and they usually realize this. Such conduct could cost one a
customer, a business license, damages in a civil lawsuit, and even a criminal conviction — with
a possible fine, and jail or prison time for fraud. Moreover (even overlooking obvious ethical
considerations to such behavior), such deviations are illegal and not likely to promote the
public goodwill that is essential for long term business survival and growth. No doubt every
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serious student of business history can recall examples of illegal conduct by “robber barons”
that have occurred in some of the nation’s largest corporations under lax laws prevailing long
ago. However, if only because of the fear of discovery, exposure, and public disgrace, such
behavior seldom reflects top management policy and practice today. Of course, “the wiles of
man are infinite,” and individuals do sometimes “lie, cheat, and steal.” It also happens when
subordinates are under heavy pressure to produce “results” and “a better bottom line,” or when
a tax law is considered to be unjust and confusing, and is conveniently open to more than one
defendable interpretation. Nevertheless, the threat of detection and punishment is at least an
effective restraint for most persons. In any event, an employee cannot legally be required to
violate any undisputed law. If such act is done knowingly and willingly, the criminal employee
can be prosecuted, along with the employer. When appropriate, the employee also could be
held liable in a civil court action, although the employer alone usually has the “deep pocket”
c. The request is asking the employee to be disloyal. He has a legal and ethical responsibility to
not profit at his employer’s expense or gain an opportunity that arises because of his
relationship with his employer. If the employer is aware, and agrees, that the employee may
compete with the employer on his or her own time, there is no ethical or legal problem.
d. Unfortunately, this is a very common and real problem, whether the wrongdoer is a relative or
favorite of the employer. A good discussion can occur here about assuming what the action of
another will be. Another good discussion can be about preparing for all eventualities.
Obviously, one’s legal position is improved if he or she has brought problems to the attention
of the employer, and has documented the actions or lack thereof before making a complaint to
the EEOC.
5. In a similar case, a federal jury found such a termination a violation of Title VII. The May 2002
6. Although Delta appears to be an at-will employee it may well be discriminatory. In a similar case
in New York, Mittl v. New York State Div. of Human Rights, 100 NY2d 326 (New York, 2003) the
Court of Appeals upheld a Commissioners determination that the firing was illegal pregnancy
discrimination. The respondent ophthalmologist offered testimony that he fired the petitioner
Employer and Employee Rights and Duties 9
7. Yes. Peaceful picketing is constitutionally protected as a form of free speech (Thornhill v. Alabama,
310 U.S. 88, 104 S.Ct. 736 [1940]). Of course, the picketing must be for a lawful purpose
(Carpenters and Joiners Union of American, Local No. 213 v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct.
807 [1942]). Picketing is not protected as free speech if conducted in violation of a state antitrust
law, (Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 69 S.Ct. 684 [1949]), nor if done
to aid an illegal secondary boycott (International Brotherhood of Electric Workers, Local No. 501
v. NLRB, 341 U.S. 694, 71 S.Ct. 954 [1951]).
9. A probationary period is the time in which the employer need not show just cause for a termination,
so it is very difficult for an employee to successfully claim wrongful termination. Therefore, the
10. a. Yes. The principal is liable for acts of his agent committed within the scope of his employment.
b. Yes.
c. No. Generally employers are not liable to third parties for actions of their independent
contractors.