Ch 13 Employment

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Ch 13 -Employment Employee Rights

• What rights do employees expect their employers
  to protect?
• Do employees in the US have any legal right to
  job security?

2
Ch 13 -Employment Employee Rights

• Do employees in the US have any legal right to
  job security?
• Employment at will doctrine Employees remain
  employed only if both the employer and the
  employee want the employment relationship to
  continue

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Ch 13 -Employment Employee Rights

• Mary arrived at work one day, and her boss said
  to her, Thats the ugliest dress I have ever
  seen. Because you wore that to work today, you
  are fired. Assuming that Mary is an at-will
  employee, which of the following is true?
• a. Mary can be fired for any reason.
• b. If Mary has the will to work, she cannot be
  fired without cause.
• c. If none of the exceptions to the at-will rule
  apply, Mary can be fired.
• d. Mary can be fired only if it is in the best
  interest of the employer.

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Ch 13 -Employment Employee Rights

• Answer
• c. If none of the exceptions to the at-will rule
  apply, Mary can be fired.

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Ch 13 -Employment Employee Rights

• Exceptions to the at-will rule
• Illegal firing
• Public Policy Exception
• Refusal to perform illegal act
• Acts performed in public interest
• Jury duty
• Whistle-blowing

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Ch 13 -Employment Employee Rights

• Gardner v Loomis
• Gardner is a driver with Loomis, an armored
  truck delivery services company. Loomis policy
  is that trucks cannot be left unattended. The
  penalty for violating this rule is termination.
• While making a scheduled stop at a bank, Gardner
  noticed a woman being threatened with a knife by
  an agitated man. Gardner left his truck and went
  to aid the woman and apprehend the assailant.
  Naturally, Gardner was fired by Loomis.
• Was the termination legal?

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Ch 13 -Employment Employee Rights

• Gardner v Loomis
• Was the termination legal?
• No, the driver is protected under the public
  policy exception. His duties to society outweigh
  his duties to his employer.

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Ch 13 -Employment Employee Rights

• Breach of contract
• Written employment contract
• Implied
• Length of employment
• Regular promotions
• Promise of permanence
• Positive reviews and/or lack of warning of poor
  performance
• The importance of the employee handbook
• Defamation
• Method of firing cannot be defamatory
• Loss of good name
• Impact on employment
• Crime, incompetence

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Ch 13 -Employment Employee Rights

• Hank was hired in February of 2002 as a
  salesperson. There is no written employment
  contract, and Hank is paid on a commission basis.
  Hanks manager has said to Hank on several
  occasions that if Hank continues to meet his
  sales quotas, that the company will keep him
  around for a long time. Hank has always met his
  sales quotas, but is told one day that they have
  decided to replace him because he does not
  project the image that the company wants. If
  Hank is an at-will employee, and assuming he can
  prove the above, which of the following is true?

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Ch 13 -Employment Employee Rights

• a. As an at will employee, there are no
  restrictions on the employer terminating Hank.
• b. Because there is no written employment
  contract, the employer can terminate Hank.
• c. The statements by the manager could likely
  give Hank contract rights that could amount to an
  exception to the at-will doctrine.
• d. The employer would not be able to fire Hank
  on the basis of public policy.

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Ch 13 -Employment Employee Rights

• Answer
• c. The statements by the manager could likely
  give Hank contract rights that could amount to an
  exception to the at-will doctrine.

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Ch 13 -Employment Employee Rights

• Breach of good faith
• Transfers aimed at making employee quit
• John is a high-performing employee at the Seattle
  office of Company X. One fine day, his boss tells
  him he is being transferred to Baghdad to set up
  the firms Iraq operations. John is tipped to
  take over his incompetent boss job in the near
  future, and the firms strategic plan does not
  include doing business in Iraq.
• Pressure to resign to avoid getting fired
• Johns employment contract stipulates a golden
  parachute in the event of employment termination.
  The parachute is inoperative if the termination
  is voluntary. The boss tells him that he may not
  get a job in the industry if news leaks out that
  he was fired for incompetence.

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Ch 13 -Employment Employee Rights

• b. Family and medical leave Act, 1993
• 12 weeks unpaid leave per annum (employers with
  50 employees)
• Restricts termination on the grounds of leave
• Exception key employee
• c. State level amendments
• States may pass Just Cause legislation
• Higher protection for employees

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Ch 13 -Employment Employee Rights

• II. Right to privacy
• A. Drug Testing
• Privacy v. safety
• Federal employees affecting public safety e.g.
  Transportation
• Varying state laws
• B. Aids Testing
• No pre-employment testing
• C. Information Gathering and use
• a. Background checks
• Arrest data
• Credit history
• workers compensation
• b. Necessary Record Keeping
• Job related and specific purpose
• No release without consent
• Right to know

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Ch 13 -Employment Employee Rights

• c. Lie detector tests
• Restricted to theft (1988)
• Exempted employers
• d. Monitoring Performance
• No constitutional guarantee against
• Pros and cons
• III. Rights to health and safety
• A. OSHA, 1970 - Work place safety
• B. Right to know
• C. Workers Compensation
• Accidental and in course of employment
• Strict liability
• Compare to tort liability
• Costs and Benefits
• Strategies

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Ch 14 -Employment Discrimination

• Employers restricted from discrimination on the
  basis of race, religion, nationality, age,
  gender, etc.
• Title VII, Civil Rights Act 1964
• Lists Protected classes
• Applies to employers with 15 employees

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Ch 14 -Employment Discrimination

• Disparate - Treatment Discrimination
• Intentional discrimination
• Elements for a prima facie case
• Plaintiff belonged to a minority
• Plaintiff applied for and was qualified for a job
  with the employer
• Plaintiff, despite job qualifications, was
  rejected
• After plaintiff s rejection, the job remained
  open and employer continued to seek applicants
• Burden of defensive proof on employer

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Ch 14 -Employment Discrimination

• Disparate - Treatment Discrimination
• McDonnell Douglas v. Green, 1973Green, an
  African-American mechanic, had been laid off
  under a general workforce reduction and then not
  rehired. MD claimed G was not rehired because of
  his participation in a lock-in at the plant to
  protest racial inequality. Was the act
  discriminatory?

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Ch 14 -Employment Discrimination

• Disparate - Treatment Discrimination
• McDonnell Douglas v. Green, 1973Held G
  established a prima facie case for a Title VII
  violation, since the following elements were
  present.
• G belonged to a minority
• G applied for and was qualified for a job with
  the employer
• G, despite job qualifications was rejected
• After Gs rejection, the job remained open and
  employer continued to seek applicants
• MD had to prove that there was a
  nondiscriminatory reason for the employment
  decision, which they were unable to do.

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Ch 14 -Employment Discrimination

• Disparate - Treatment Discrimination
• Federal Government v. Insurance companies, 2004
• US insurance companies followed a practice of
  charging differential premiums to African
  American clients for life insurance. Their
  argument was that, statistically, African
  Americans had a lower life expectancy than
  average Americans hence, the premiums that they
  needed to pay should compensate for the increased
  risk that insurers bear.
• Was this practice discriminatory?

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Ch 14 -Employment Discrimination

• Disparate - Treatment Discrimination
• Federal Government v. Insurance companies, 2004
• It was held to be discriminatory. Poverty and
  nutrition levels, and not race, were the chief
  causes of lower longevity. Bracketing all African
  Americans together was unfair.

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Ch 14 -Employment Discrimination

• Disparate Impact Discrimination
• Occurs when job requirements result in
  disproportionate work force composition
• No discriminatory intent required
• Burden of proof on plaintiff
• Focuses on validity of hiring practices

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Ch 14 -Employment Discrimination

• City A adopted a rule that all employees of City
  A had to live within the city limits. City A is
  right next to City B. City A has no African
  Americans, but one-third of the residents of City
  B is African American. Due to the rule, no
  employee of City A is African American.

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Ch 14 -Employment Discrimination

• The rule is most likely Disparate impact
  discrimination.

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Ch 14 -Employment Discrimination

• Dothard v Rawlinson, 1977
• The Alabama womens prison system had a minimum
  height requirement of 52 and minimum weight
  requirement of 120 pounds for prison guards.
  Was the rule discriminatory?

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Ch 14 -Employment Discrimination

• Dothard v Rawlinson, 1977
• Held Although the rule had a purpose other than
  one of discrimination, namely, making sure guards
  were physically large enough to perform their
  jobs effectively, the impact of the rule was to
  exclude many females from the job position. With
  the advances in technology, physical size was no
  longer a business necessity.

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Ch 14 -Employment Discrimination

• Defenses for Title VII violations
• BFOQ (bona fide occupational qualification)
  defense (business necessity)
• Promotions seniority systems
• Merit systems
• Aptitude tests
• Employer must prove validity with respect to job
  performance
• Physical fitness and marksmanship tests for
  police officers

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Ch 14 -Employment Discrimination

• Defenses for Title VII violations
• BFOQ (bona fide occupational qualification)
  defense (business necessity)
• Which of the following situations would be a bona
  fide occupational qualification?
• a. Hiring only Hispanic waiters at a restaurant
  that markets to a Hispanic clientele.
• b. Hiring only men to be attendants in the locker
  room of a mens health club.
• c. Hiring only Catholics for the wait staff in a
  restaurant that caters to a largely Catholic
  population and is partly owned by a Catholic
  church.

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Ch 14 -Employment Discrimination

• Defenses for Title VII violations
• Answer
• b. Hiring only men to be attendants in the locker
  room of a mens health club.

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Ch 14 -Employment Discrimination

• Defenses for Title VII violations
• Aptitude tests
• Employer must prove validity with respect to job
  performance
• Physical fitness and marksmanship tests for
  police officers
• Example The local police department gives a
  detectives test. Everyone who takes the test
  must have been a police officer for at least 5
  years. The people taking the exam are rated from
  top to bottom based on their scores on that test.
  Then, if any detective openings are available,
  they are filled on the basis of whoever has the
  highest score.
• Tests like this are legal as long as the subject
  matter tested has some relationship to the job
  being applied for.

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Ch 14 -Employment Discrimination

• Sexual Harassment
• EEOC Guidelines
• Two types
• Quid pro quo
• Boss asks for sexual favors in return for
  promotion
• Hostile environment
• When there is no exchange sought, but the working
  environment is characterized by harassment
• Reasonable person V. reasonable woman standard
• Recovery for a sexual harassment claim does not
  require the plaintiff to prove that she suffered
  damage to her psychological well-being
• Vicarious Liability - Employer held liable for
  conduct of employee

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Ch 14 -Employment Discrimination

• Sexual Harassment
• Ellison v. Brady
• Plaintiff alleged that a fellow employees
  persistent, unwelcome letters and requests for
  dates had created a hostile working environment.
  The Court held that a reasonable woman would find
  such an environment hostile.
• Office romances today are fraught with risk
• Does this law violate the freedom of speech?

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Ch 14 -Employment Discrimination

• Sexual Harassment
• Defense for employer
• Employer exercised reasonable care to prevent and
  correct promptly any harassing behavior. For
  instance, a very thorough and explicitly
  communicated harassment policy.
• Plaintiff unreasonably failed to take advantage
  of any preventive or corrective opportunities
  provided by employer or to avoid harm otherwise.
  For instance, extreme delay in reporting the
  wrongdoing

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Ch 14 -Employment Discrimination

• Affirmative Action
• Applicable to federal contractors
• Incentives
• Employment goals and timetables
• compensatory justice
• Problems
• Reverse discrimination
• Poor implementation ( quota system)
• Biased towards large corporations
• Diversity -An alternative
• Demography driven
• Advantages of diversity