1. Employment Law Chapter 6

2. Employment Issues Arise when: Arise when: An employee is fired from a job. An employee is fired from a job. A qualified employee is not hired for a job. A qualified employee is not hired for a job. A qualified employee is not promoted. A qualified employee is not promoted. An employee’s work situation is made so bad that he or she must quit. An employee’s work situation is made so bad that he or she must quit. An employee is injured during the scope of employment. An employee is injured during the scope of employment. An employee is injured due to conditions at the workplace. An employee is injured due to conditions at the workplace.

3. The Employment Relationship State and federal laws provide certain rights to employees and obligations to employers, but an employment relationship must be proven State and federal laws provide certain rights to employees and obligations to employers, but an employment relationship must be proven Contractual in nature Contractual in nature Involves an express or implied agreement to perform personal services: Agreement should cover salary, work duties, benefits Involves an express or implied agreement to perform personal services: Agreement should cover salary, work duties, benefits Who is an employee? A university scholarship athlete? Who is an employee? A university scholarship athlete?

4. Issue Is a football player an employee of the university that he attends and for which he competes? Is a football player an employee of the university that he attends and for which he competes? Coleman v. Western Michigan; Economic Reality Test: Coleman v. Western Michigan; Economic Reality Test: 1. The proposed employer’s right to control or dictate the activities of the proposed employee 2. The proposed employer’s right to discipline or fire the proposed employee 3. The payment of “wages” and, particularly, the extent to which the proposed employee is dependent on the payment of wages or other benefits for his daily living expenses 4. Whether the task performed by the proposed employee was an integral part of the proposed employer’s business

5. The Employment Relationship Employment-at-will doctrine – governs most employment relationships Employment-at-will doctrine – governs most employment relationships Either the employer or employee may terminate the employment relationship at any time and for any reason. Either the employer or employee may terminate the employment relationship at any time and for any reason. Exceptions – particularly where contract is specific regarding reasons for terminating employment contract Exceptions – particularly where contract is specific regarding reasons for terminating employment contract

6. Discrimination Protected classes Protected classes Race Race Color Color National Origin National Origin Gender Gender Religion Religion Age Age Disability Disability

7. 1964 Civil Rights Act (Title VII) Applies to governmental agencies, federal employees, labor unions, and employers with > 15 employees Applies to governmental agencies, federal employees, labor unions, and employers with > 15 employees Protected classes Protected classes Race, color, and national origin Race, color, and national origin Gender Gender Religion Religion Compliance is monitored by the Equal Employment Opportunity Commission (EEOC) Compliance is monitored by the Equal Employment Opportunity Commission (EEOC)

8. Discrimination Disparate-impact discrimination Disparate-impact discrimination Unintentional discrimination – where employer’s workforce does not mirror the percentage of that class in the local labor market Unintentional discrimination – where employer’s workforce does not mirror the percentage of that class in the local labor market Disparate-treatment discrimination Disparate-treatment discrimination Intentional discrimination – where a qualified job applicant in a protected class is denied employment Intentional discrimination – where a qualified job applicant in a protected class is denied employment

9. Defenses Challenge the statistical analysis and/or the definition of “local labor market” Challenge the statistical analysis and/or the definition of “local labor market” Bona fide occupational qualification: Identifiable characteristics reasonably necessary to the normal operation of a particular business: Bona fide occupational qualification: Identifiable characteristics reasonably necessary to the normal operation of a particular business: Gender: Fitness trainers at a single-sex health club Gender: Fitness trainers at a single-sex health club Race: Not a BFOQ Race: Not a BFOQ

10. Defenses Business Necessity Business Necessity A valid business reason for choosing someone outside of protected class A valid business reason for choosing someone outside of protected class Gender: Because of height, weight, and strength requirements, most firefighters hired were men. Gender: Because of height, weight, and strength requirements, most firefighters hired were men. Religion: Because of faith-based days of worship, more hires are not of a particular faith. Religion: Because of faith-based days of worship, more hires are not of a particular faith. Race: Because business had a valid reason to hire only workers with a high school diploma, most workers were nonminority. Race: Because business had a valid reason to hire only workers with a high school diploma, most workers were nonminority. Age (under the ADEA): Because a job required strength and endurance, most workers were under the age of 60. Age (under the ADEA): Because a job required strength and endurance, most workers were under the age of 60.

11. Affirmative Action Designed to reduce or eliminate discriminatory practices in hiring, promotion, and retention of employees Designed to reduce or eliminate discriminatory practices in hiring, promotion, and retention of employees Employers actively seek out, hire, and promote qualified individuals in protected groups Employers actively seek out, hire, and promote qualified individuals in protected groups

12. Discrimination: Age (ADEA) Prohibits employment discrimination on the basis of age for people 40 and over Prohibits employment discrimination on the basis of age for people 40 and over Applies to businesses with 20 or more employees and whose activities influence interstate commerce Applies to businesses with 20 or more employees and whose activities influence interstate commerce Prima facie case: Prima facie case: 40 years old or older 40 years old or older Applied and was qualified Applied and was qualified Rejected in circumstances that implied discrimination Rejected in circumstances that implied discrimination

13. Americans with Disabilities Act of 1990 (ADA) Title I: Employment Applies to organizations with > 15 employees Applies to organizations with > 15 employees Employee must prove Employee must prove Disability Disability Necessary skills, experience and education Necessary skills, experience and education Ability to perform essential functions of the job – with or without a reasonable accommodation Ability to perform essential functions of the job – with or without a reasonable accommodation Reasonable accommodation does not have to force an undue burden on the employer Reasonable accommodation does not have to force an undue burden on the employer Has been applied to professional sports where athletes have requested and required accommodations based on disabilities Has been applied to professional sports where athletes have requested and required accommodations based on disabilities

14. Americans with Disabilities Act of 1990 (ADA) Title III Bars discrimination against disabled individuals “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Bars discrimination against disabled individuals “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Includes gymnasiums, golf courses, and other places of exercise and recreation Includes gymnasiums, golf courses, and other places of exercise and recreation

15. Sexual Harassment Elements of sexual harassment: Elements of sexual harassment: 1. Unwelcome sexual advances 2. Not desired by the employee (victim) 3. Conduct that creates a hostile or abusive work environment 4. Can arise from either verbal or physical conduct Includes quid pro quo – something in exchange for something else Includes quid pro quo – something in exchange for something else Includes constructive discharge - when an employee claims he/she can no longer work at a place of business because the work situation is intolerable Includes constructive discharge - when an employee claims he/she can no longer work at a place of business because the work situation is intolerable The best way to handle is to treat each complaint seriously and have clear policies and procedures in place The best way to handle is to treat each complaint seriously and have clear policies and procedures in place

16. Federal Employment Laws Occupational Health and Safety Act Occupational Health and Safety Act Created OSHA, NIOSH, and OSHRC Created OSHA, NIOSH, and OSHRC Requires employers to meet certain specific, federally mandated, safety standards Requires employers to meet certain specific, federally mandated, safety standards Imposes a duty on employers to keep their workplace safe Imposes a duty on employers to keep their workplace safe Addresses workplace health hazards, including: sudden cardiac arrest, heat-related illness, carpal tunnel syndrome, chemicals, and blood-borne pathogens Addresses workplace health hazards, including: sudden cardiac arrest, heat-related illness, carpal tunnel syndrome, chemicals, and blood-borne pathogens Also requires employers to keep records of workplace injuries and accidents Also requires employers to keep records of workplace injuries and accidents

17. Federal Employment Laws Fair Labor Standards Act Fair Labor Standards Act Regulates child labor practices Regulates child labor practices Children can’t work Children can’t work After 9 p.m. in the summer After 9 p.m. in the summer Before 7 a.m. or after 7 p.m. on school day/night Before 7 a.m. or after 7 p.m. on school day/night More than 3 hours on a school day (8 hours on non-school day) More than 3 hours on a school day (8 hours on non-school day) More than 18 hours during a school week (40 hours during a non-school week) More than 18 hours during a school week (40 hours during a non-school week)

18. Federal Employment Laws Family and Medical Leave Act (FMLA) Family and Medical Leave Act (FMLA) Requires employers to provide up to 12 weeks of leave to attend to family health issues Requires employers to provide up to 12 weeks of leave to attend to family health issues Leave is not required to be paid Leave is not required to be paid Employee must be able to resume work at the same or a similar position Employee must be able to resume work at the same or a similar position Can be used for birth (or adoption) of a child, illness, or death of a family member Can be used for birth (or adoption) of a child, illness, or death of a family member

19. Federal Employment Laws Consolidated Omnibus Budget Reconciliation Act (COBRA) Consolidated Omnibus Budget Reconciliation Act (COBRA) Allows employees to retain their rights to insurance coverage under their employer’s health plan even after their employment has been terminated Allows employees to retain their rights to insurance coverage under their employer’s health plan even after their employment has been terminated Can continue for up to 18 months (29 months for former employees with disabilities) Can continue for up to 18 months (29 months for former employees with disabilities) VERY EXPENSIVE!! VERY EXPENSIVE!!

20. Federal Employment Laws Health Insurance Portability and Accountability Act (HIPAA) Health Insurance Portability and Accountability Act (HIPAA) Provides rules for employers who choose to provide a health plan for employees Provides rules for employers who choose to provide a health plan for employees Prohibits employers from excluding coverage to employees who have pre-existing conditions Prohibits employers from excluding coverage to employees who have pre-existing conditions Requires employers to protect confidential health information Requires employers to protect confidential health information