Employment Relationships and Discrimination Dr. Pamela Gershuny

At-Will Is it fair to allow an R to fire an E at any time for any reason? Is it fair to allow an R to fire an E at any time for any reason? Is it fair that you can be fired for any reason, (except in violation of statutory law) even though you are doing a great job? Is it fair that you can be fired for any reason, (except in violation of statutory law) even though you are doing a great job? What are the consequences for an E personally of losing their job? What are the consequences for an E personally of losing their job?

At-Will Common Law Heritage Common Law Heritage 1349 Statute of Labourers 1349 Statute of Labourers Because a great part of the people, and especially of workmen and servants late died of the pestilence (The Black Death –bubonic plague), many seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness, than by labour to get their living, we, considering the grievous incommodities, which of the lack especially of ploughmen and such labourers may hereafter come, have upon deliberation and treaty with the prelates and the nobles, and learned men assisting us, of their mutual counsel ordained: Because a great part of the people, and especially of workmen and servants late died of the pestilence (The Black Death –bubonic plague), many seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive excessive wages, and some rather willing to beg in idleness, than by labour to get their living, we, considering the grievous incommodities, which of the lack especially of ploughmen and such labourers may hereafter come, have upon deliberation and treaty with the prelates and the nobles, and learned men assisting us, of their mutual counsel ordained: Every person able in body under the age of 60 years, not having to live on, being required shall be bound to serve him that doth require him or else committed to the gaol until he find surety to serve. Every person able in body under the age of 60 years, not having to live on, being required shall be bound to serve him that doth require him or else committed to the gaol until he find surety to serve. If a workman depart from service before the time agreed upon, he shall be imprisoned. If a workman depart from service before the time agreed upon, he shall be imprisoned.

At-Will Horace Gay Wood, Master and Servant 1877 Horace Gay Wood, Master and Servant 1877 With us [in American, unlike England,] the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will With us [in American, unlike England,] the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will Poor scholarship on Wood’s part Poor scholarship on Wood’s part 2005 All states except Montana apply this doctrine 2005 All states except Montana apply this doctrine Why? Why?

When can an E win a lawsuit for wrongful discharge? If the R breaches an implied contract If the R breaches an implied contract Handbook creates just cause Handbook creates just cause Behavior creates just cause Behavior creates just cause Covenant of good faith and fair dealing Covenant of good faith and fair dealing If R commits a tort If R commits a tort Defamation Defamation Intentional infliction of emotional distress Intentional infliction of emotional distress Fraud Fraud

When can an E win a lawsuit for wrongful discharge? If public policy creates an exception to the at- will doctrine If public policy creates an exception to the at- will doctrine Jury duty Jury duty Service in the national guard Service in the national guard Lins v. Children’s Discovery Centers Lins v. Children’s Discovery Centers Whistleblowing Whistleblowing Dr. Wiegand – The Insider Dr. Wiegand – The Insider

What are the Federal Laws that Limit At-Will Employment? Gauley Bridge Disaster Gauley Bridge Disaster 1931 Davis Bacon Act 1931 Davis Bacon Act 1936 Walsh-Healey Act 1936 Walsh-Healey Act 1938 FLSA covers all employees 1938 FLSA covers all employees Child labor restrictions<14 years of age and Child labor restrictions<14 years of age and Minimum wage Minimum wage Overtime Overtime 1970 OSHA 1970 OSHA

What are the Governing Employment? 1970 OSHA 1970 OSHA Has not kept up with changes Has not kept up with changes Workers’ Compensation Workers’ Compensation Employment relationship Employment relationship Accidental Accidental In the course of employment In the course of employment Eliminates tort liability for negligence Eliminates tort liability for negligence

Income Secruity Retirement Retirement Disability Disability Death Death Hospitalization Hospitalization Unemployment Unemployment

Income Security 1935 Social Security Act 1935 Social Security Act OASDI- old age, survivors, disability insurance OASDI- old age, survivors, disability insurance FICA Federal Insurance Contributions Act FICA Federal Insurance Contributions Act Pays for loss of income on retirement Pays for loss of income on retirement Based on annual wage base Based on annual wage base R matches E’s contribution R matches E’s contribution Upon retirement you get monthly payments Upon retirement you get monthly payments Should you pay tax on the income at your taxation rate when you retire? US v. Cleveland Indians Baseball Should you pay tax on the income at your taxation rate when you retire? US v. Cleveland Indians Baseball

Income Security Medicare Medicare >65 years old >65 years old Hospital costs and non hospital costs Hospital costs and non hospital costs 1.45% of all wages + match by R 1.45% of all wages + match by R

Income Security 1974 ERISA 1974 ERISA The problem The problem Vesting Vesting E contribution vest immediately E contribution vest immediately R contributions vest after 5 years R contributions vest after 5 years

Income Security 1935 Unemployment Compensation 1935 Unemployment Compensation State, not federally administered State, not federally administered Must continue to search for a job Must continue to search for a job Temporary income replacement Temporary income replacement Must be fired without just cause Must be fired without just cause Covers you even if you are forced to resign Covers you even if you are forced to resign JUST CAUSE standard JUST CAUSE standard

COBRA 60 days to decide whether or not to continue coverage at the cost to the employer + 2% 60 days to decide whether or not to continue coverage at the cost to the employer + 2% Family members can still be insured Family members can still be insured >20 E’s >20 E’s Must inform, however can completely eliminate its plan Must inform, however can completely eliminate its plan

FMLA 1993 Family Medical Leave Act 1993 Family Medical Leave Act >50 E’s >50 E’s 1 year on the job 1 year on the job 12 weeks leave, does not have to be contiguous 12 weeks leave, does not have to be contiguous Key employee exception pay in top 10% no reinstatement requirement Key employee exception pay in top 10% no reinstatement requirement “Serious health condition” birth adoption “Serious health condition” birth adoption Ragsdale v. Wolverine World Wide, Inc. Ragsdale v. Wolverine World Wide, Inc.

Privacy Rights??? Electronic Monitoring Electronic Monitoring Remember Griswold? Remember Griswold? 1986 ECPA – heritage in criminal law 1986 ECPA – heritage in criminal law Business Exception Business Exception Notice Exception Notice Exception State common law tort State common law tort

Privacy Rights? Lie Detector Tests – can’t require Lie Detector Tests – can’t require Drug Tests Drug Tests AIDS Tests AIDS Tests 1990 ADA 1990 ADA Genetic Testing Genetic Testing Sicle Cell anemia? Sicle Cell anemia? Breast cancer? Breast cancer? Homosexuality? Homosexuality? Schizophrenia or other emotional illness? Schizophrenia or other emotional illness?

Immigration Law 1986 IRCA Immigration Reform and Control Act 1986 IRCA Immigration Reform and Control Act 1990 Immigration Act Caps VISAS 1990 Immigration Act Caps VISAS