230 Employment Law

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► Listen on DSound
► Listen from source (IPFS) In this presentation, we will discuss employment law.

At the end of this we will be able to:

• Describe the concept of employment-at-will
• List and explain wrongful discharge
• Describe laws for employee working conditions
• Lists and explain laws related to worker benefits
• Describe civil rights legislation as it relates to employment and
• Explain the Age Discrimination in Employment Act

An employment agreement is going to be an agreement between an employee and an employer. This agreement can be set up formally with a complex written document, or it could be an oral agreement between an employer and an employee.

The principle idea and concept within the employment process is the idea of employment-at-will. Employment-at-will basically means that both the employer and the employee have engaged in this employment of their free will and they can terminate the employment at any time pretty much giving any circumstance under the general rules under normal cases. That means that either the employee and the employer have the opportunity at any time to stop employment and pursuit of other opportunities which typically in general is a good thing. That's going to be the principle foundation idea of employment, that both individuals can terminate the employment process at any time and pursue other options.

However, there are situations where it's seen that the employer in particular may be able to abuse this process because the employer often has more control or power within a in a situation of an employee or an employee type of situation. It could be seen that the employer then may be able to abuse this ability to just terminate employment at any given time for no reason, not even having to give any cause for the termination of employment. Because of this we have the foundational principle of employment at free will and then the law is going to create some exceptions to the rules and exceptions particularly into the employer side of things where we have some additional steps to terminate rather than being able to terminate without even given any cause for it. These exceptions come into a few different categories. We can have contractual exceptions. We can have statutory exceptions, and we have created wrongful discharge exceptions.

Contractual exceptions mean that there's going to be some type of contractual exception in the agreement, in the contract, between the employee and the employer at the time of employment. In other words, when we create the contract, then we can add these exceptions within to contract agreement so that the default setting is not just employment-at-will but also taken into consideration whatever details are put in as a negotiation between the employer and the employee. This is an ideal situation, but it only really works well when both the employer and the employee have pretty equal standings within a negotiation process. In other words, when we're talking about employees that are highly valuable, highly skilled employees, they often have a lot more bargaining ability within a negotiation process and they can negotiate a good and fair employment contract. When we're talking about employees that don't have a lot of skills, then they're often more at the will of the employer and there would need to be than other protections, possibly than just the ability to have that negotiation because of the difference in need between the individuals.

We could have a collective bargaining agreement which is basically in the case where a union often would represent the employees as a group of employees, and they could have such as such agreements within the bargaining agreement to prevent the employer from terminating an employee without just cause. For example, the National Labor Relations Act the NLRA prevent unfair discharge of employees. The employer in other words, would have to basically list some type of problem, some reason for the discharge of an employee. Collective bargaining agreements often also are going to have some type of grievance procedure, meaning if an employee was terminated there would be some type of process available they can go through, some type appeal process if they think that the termination was unfair or done on unjust grounds.

There are also statutory exceptions to the at-will clause. In other words, the at-will clause remember is going to be the default, meaning that in an employer-employee relationship either party can terminate at any given time, that being a default, with no just caused. If we have a statutory exception that means the federal government has passed some law, some legislation, to add a level of protection typically to the employee to guard against an at-will type doctrine in which case the employer would have some more restrictions in terms of being able to fire certain individuals. Legislation is going to be related to discrimination-based legislation, color, creed, national origin, or gender. They then passed a legislation that has to do with age, disability, and service and the Armed Forces and finally we have some focus in the legislation that has to do with hardship, the results from a firm just deciding to move the business. These are going to be the main focuses within these types of statutory exceptions to the law.

Civil rights laws are also going to be a component regarding being a check against the general default rule, that general default rule that there's employment-at-will, and the employer can terminate anybody at any time. We have some civil rights laws that are also going to be in place, and of course, the laws are in general there to protect employees and certain types of employees in certain situations. The civil rights law is going to have some restrictions in this case as well to restrict the employer from terminating an employee in certain situations. Some relevant laws are Equal Pay Act, parts The Civil Rights Act, Age Discrimination, and Employment Act, The Uniformed Services Employment and Reemployment Rights Act, and the Americans with Disabilities Act.

The term wrongful discharge would mean that the employer has in some way violated some of these laws or regulations or the contract in discharging an employee and in so doing the employee then would have grounds for a lawsuit against the employer on the grounds of the wrongful discharge. The idea is that the employer discharged the employee unfairly for one of these reasons.

An employee could make a case for wrongful discharge using promissory estoppel. Promissory estoppel is a case where although we had an agreement, and remember the default agreement is an at-will agreement and the employer then would typically have the ability to discharge the employee, however if the employee had had in some form or fashion a promise made to them given some more higher security for their employment situation by either the employer directly or by an agent of the company and then the person the employee believed that and acted on that, made decisions based on that promise, and then was terminated in violation of this promise that was given that would be a promissory estoppel. In other words, the employer would have to make some type of promise or an agent of the employer. The employee would then have to be able to agree or believe that promise and basically take actions in plan on that promise and then of course the employer would have to violate the promise in termination and that in some way would injure the employee and that would be grounds for a wrongful discharge type case for promissory estoppel.

A similar case could be made in many states for wrongful discharge case which would be related to fraud. This is similar in that the concept here of fraud would be an assumption by the employee that the there is potential at least for a long-term employment within this position, whereas the employer knew from the get-go that it would be a short-term position and did not communicate that within the employment agreement. That's one type of thing where we could say well there's deception within the contract agreement where one side felt that this had the potential at least to be a long-term negotiation and the other did not make aware the short nature of the process and possibly that would be of grounds for actual fraud within the negotiation especially if it was expressed explicitly that there might be long term potential win clearly there was not.

Another type of argument that can be made for a wrongful termination can be made under implied covenant, meaning that because the employer and employee are acting under an agreement and accordance to what would seem to be a subtype of covenant or agreement then you would think that there would be a reason or a need for a fairness and honesty within that agreement and therefore when it there is going to be some type of termination you would think that there has to be some fair and honest process of fair and honest reason for a type of termination given the fact that it looks like there is an implied contract of continued employment given the nature of employment that continuing continuation of employment in the day-to-day activities with the job. Many have argued here that if we accept this kind of interpretation of the employment contract, then that really isn't just an exception to the at-will agreement which is basically saying that either party can terminate the agreement at any given time. The implied covenant tends to make you think well that means that you cannot terminate anyone at any given time. There is no real exception to that because if there is an implied covenant and we have a duty of care and fairness to the employees given the employment agreement, then that would mandate that we would need to give some kind of reason for termination. In other words, if we're acting as if we have an ongoing agreement by having a daily date transactions and acting as an employer and employee and acting as though that relationship will continue into the future then if we suddenly terminate that agreement then we would need to have some kind of just cause or reason for that termination and to be fair and honest we would have to provide that to the employee if we have that duty of care. This kind of implied covenant may be stronger depending on the region of the country we're in, the states that were in, and it's basically going to say that we have this duty of care just within the employment contract of itself.

Up till now we've talked about wrongful discharge and the company actually terminating in employment and the conditions in which that termination could be determined to be wrongful. There also could be cases where we have constructive discharge and in these cases, you can imagine a situation where an employer may feel that they want to terminate an employee for whatever reason, possibly the reason not being one that would be a legal reason, and therefore instead of terminating the employee make the employees work life not ideal. In other words, a constructive discharge would be taking actions that would make the employees current term employment process less than good a bad, work environment, meaning they could deny raises to the employee. They could you give subpar recordings of the performance of the employee that isn't just, or they could just treat the employee at a lower level than their skill level. They could you know we could demote the employee and do these types of things that would reduce the ability for the employee to work possibly with the intention of the employee then quitting at some point in time and that would be the concept of a constructive discharge. We can see how when we look at these contract laws and the employee agreements how if there's a fear of a wrongful discharge in terms of termination in some cases unfortunately this type of conduct could happen in which case the employer takes other types of actions to force a type of termination and that would be that the case of constructive discharge.

In addition to laws that regulate the wrongful termination of employees we also have laws that regulation the conditions of employees. Those working conditions health and safety type laws. Occupational Safety and Health Administration or OSHA is a law that can regulate the labor conditions and standards for employees. That's going to be a tremendous type of power and authority that OSHA has in this realm to put some restrictions in terms of the types of procedures that would be involved for regulatory procedures. However, for a procedure to be put in place or for OSHA's regulations or laws to be put in place they must show that the new OSHA standards and regulations reasonably reduced the frequency and severity of employee injuries and illness. If they do then, OSHA can establish and enforce occupational health and safety standards which employees must then comply with.

The Fair Labor Standards Act has to do with the number of hours employees would be required to work typically being 40, has to do with age limits for children working typically being 14. In other words, it prohibits employment of children under the age of 14 and has to do with the minimum wage and typically individuals or employees that are in interstate commerce need to be paid the minimum wage or higher of course.

When talking about the Fair Labor Standards Act we are talking about a law that is going to be on the federal level. Note that at the state level we could put different types of laws that would have to basically have this floor, this would be the floor level, meaning in other words, with regard to the minimum wage the state may have minimum wages that are higher given the state minimum wage then a federal minimum wage and the restrictions on the forty hours per week may be a restriction for the federal that the state may put more restrictions including limiting the hours per day possibly so we don't have employees working tremendous 24 hour shifts in the day or something like. Note also that the Fair Labor Standards Act, because it's a federal law, has some restrictions often in the application due to the fact that the federal law is really applicable when there's interstate commerce, meaning we're talking about businesses that do business over state lines. That's when the federal law is more applicable and where there's more jurisdiction for that for that federal law to take place. In other words, there's going to be some restrictions in terms of when this minimum wage requirement would be put in place as well as the other rules related to the Fair Labor and Standards Act. Many states, however, will have acts that will be similar, follow a similar pattern, have this at least as the minimum and possibly have a higher threshold for benefits for workers typically.

The immigration reform Act of 1986 is an act that's going to put more pressure on the employer to regulate the individuals that are working for them. For example, the employers are required to request and examine any documentation that will help for the identity and employment eligibility for all new hires including US citizens, permanent residents, and non-immigrant visa holders. The idea here is to put more pressure on the employer to deal with the type of immigration problem so that the employer then is responsible for double checking that the people that they are putting in place for work are people that are eligible to work in the country.

The Federal Insurance Contribution Act or FICA Act is a social safety net program, one of the primary social safety net programs, which includes Social Security within the safety net program. The FICA Act and the Social Security than are going to collect payroll taxes from both the employer and the employee during the term of employment and pay that into the Social Security, to the federal government. The principal purpose of that is then to have that money paid back at the termination of employment, usually the elder years of a person's life to safeguard against that period in which the employee or the worker is not currently working and earning more wages. Social Security and FICA taxes are mandatory, so this is another area where the employer really is by law given the responsibility and that's commonly the case because of course the business is the one that has more to lose. They're easier to regulate because the business is a set place. The business then is being put in charge in terms of setting in place and regulating the application of this law. In other words, the business owner can't just give out the hundred dollars if they agree with an employee to pay a hundred dollars at the end of the week they can't just give out the hundred dollars and then expect the employee to pay things like the Federal Insurance Contributions Act or the FICA taxes. The employer must take from the employees hundred dollars the employees required payment or portion of the payment for the FICA taxes out and then give the employee the net of it, not because the employer gets to keep it, but because they are responsible for then giving that money to the government for the employee and on top of that the employer is going to have to pay their portion of the Federal Insurance Contribution Act the FICA tax is based on the employee wages. The amount taken out of the employee check and the amount given by the employer or haven't contributed by the employee per employee will be in relation to the amount of wages earned by the employees so it's going to be more of a flat type tax. If there's earnings go up there's going to be a flat tax as the earnings increases, people earn more, typically the FICA tax will go up. The benefits then will be paid out based on some type of calculation, typically based on income levels, and how much was paid into the system to determine what the benefits will be paid out at the elderly age, at the time of retirement.

The Federal Unemployment Tax Act and the employment unemployment insurance assistance of the state are there to help individuals who have lost employment through no fault of their own. They're going to be helping individuals who through no fault of their own have lost employment and therefore the employment insurance will be in place to provide the insurance needed or the money needed for hopefully that temporary amount of time until we get new employment. Typically, that the federal unemployment will typically FUTA will be given from the employer, meaning as we have the employees in place the tax would be based on the employees’ wages but not taken out of the employees check, paid by rather the employer on behalf of the employee. State unemployment systems often work in the same way where the employer would pay a portion and may have some differences from state to state may require in some states part of it to be pulled from the wages of the employee.

Workers compensation has to do with workers and their families receiving benefits for losing their ability to work due to things like injury or diseases or death that occurred on the job as a result of that job. For example, if a condition of the job resulted in some type of injury, disease, or death that reduce the ability to work or injured the individuals involved in some way typically in a way that would not allow them to continue to work then they would be subject to benefits, possibly through workers compensation.

There are also laws that have to do with retirement plans including the Employee Retirement Income Security Act. We know that a major benefit for most employees that an employer can give if they choose to do so to the employee is a retirement plan of some kind. We need to be really careful however with the retirement plan and make sure that we're applying it in accordance with regulations because of course that retirement plan or pension plan is going to be something that the employee are dependent on in the future. Because of that there's more regulations within the pension plan, typically for example the money going into the pension plan would generally need to be in a separate trust, a separate trust which is separate from the normal operations of the business and in that way, there's going to be more ability or more likelihood that the we know the trust is going to be there in the case of retirement or we can calculate what's in the trust. we also want to make sure that there's some formal policy in terms of who qualifies for the retirement plans for the business and have regulations in terms of that retirement procedures as well as who has rights to the benefits that they have earned through employment. Again, this is something that very important because employees may earn pension plan benefits during the time of employment whereas there may not be employed at the time of retirement and still be do eligible for those payments at that point. We want to make sure that you know that are receiving the benefits that they earned during the time of employment. They didn't get those benefits at the time they were working because they had promised them in the future but those benefits they are getting in the future are a result of the work they did at the point in time they were there.

The Family and Medical Leave Act FMLA has to do with giving employees peace of mind and time off if there's a condition of major medical condition with someone in their immediate family. The employer must have 50 or more employees to be required under the FMLA and that would state that there must give up to 12 weeks of leave time in a 12-month period for either a child, spousal, or parental care or for the employees own serious medical condition. If there is a medical condition the concept here is to give peace of mind to the employee II as far as their working conditions and their ability to continue earning during that troubled time period as they take care of whatever medical condition is necessary.

The Military Coverage Leave is a similar law but is given to specifically military injuries or illness that occurred because of military service. We would have to give employee up to 26 weeks of leave time in a 12-month period to care for family members who had some type of serious injury because of military service and of course similar reasoning for the law here. To give peace of mind to individuals that are going to take care of close family members that are having medical conditions specifically medical conditions related to in this case military service.

We also have employment laws that deal with discrimination in the workplace and try to reduce the discrimination within the workplace. Some of these have to do with, or some of these would be parts of the Civil Rights Act, The Equal Pay Act, The Age Discrimination in Employment Act, The Uniformed Services Employment and Reemployment Rights Act, the Americans with Disability Act, and The Information Non-Discrimination Act.

The Equal Pay Act has to do with the phrase of equal pay for equal work and means that an employer must pay women the same amount that they would pay men for the same job, for the same employment, for the same work.

The Civil Rights Act of 1964 is an act that would prohibit discrimination on the basis of sex, race, color, national, origin, and religion. It covers more than just employment law but within employment, if an employee feels that they have been discriminated based on sex, creed, color, national, origin, or religion can file complaints with the Equal Employment Opportunity Commission the EEOC.

Workplace harassment can take a few different forms. One of the forms that has been covered in the past most and is covered under the Civil Rights Act, under sexual discrimination, would be sexual harassment. What constitutes sexual harassment is a bit more unclear. We know that a situation which is a quid quo pro-sexual harassment situation would definitely fall under the term of sexual harassment, but some other types of harassment may be more unclear. A quid quo pro situation occurs when a supervisor makes unwelcome sexual advances toward a subordinate or suggests that the subordinate trade sexual favors for preferential treatment of some kind. However, there could be situations where the environment is just a hostile type of work environment and those types of cases are less clear as to whether something would constitute or be termed as sexual harassment or not.

A hostile work environment typically would be a case where there's some type of harassment that makes it more difficult and for an individual to complete the work or makes the conditions within the workplace a stressful condition that would cause some type of anxiety within the workplace. It occurs when there's going to be some type of misconduct. It could be sexually explicit comments, pictures, photographs, text messages, Facebook postings, emails, jokes, posters, cartoons, gestures, that prevent the worker to complete work and possibly their home and/or health. If this is going to be the condition, then the employers are prohibited from restricting or stopping the employee from filing harassment complaints or restricted from taking retaliatory action against an employee for filing a complaint for harassment.

The Age Discrimination in Employment Act ADEA prohibits discrimination based on age and it applies to individuals over 40 years old from discrimination in either hiring, firing, promotion, or other aspects of employment

The Uniformed Services Employment and Reemployment Rights Act USERA has to do with Armed Forces, people that serve within the military, who have completed their service their duty and upon returning to work they should be reinstated to his or her previous position. That's going to be the idea that there's going to be some type of leave for service and if that leave took place when they return they should be employed or put back into their original place rather than being put in a lesser place after that point in time. In other words, they shouldn't lose their ranking within the company, their hierarchy within the company, as they do their military service and serve their military needs, or our military needs.

The Americans with Disabilities Act has to do with individuals who have some type of disability whether that be mental or physical which is going to substantially impair or limit one or more of the major life activities. These could include things like blindness, paralysis, deafness, cancer, mental retardation, or learning disabilities. One component of the Act is to have reasonable accommodations. That would mean that the employer is basically responsible to have some type of accommodations that would accommodate people with a disability if that accommodation is not going to apply some undue hardship to the employer. For example, we may need the entry to the building to be accessible possibly to someone with a wheelchair. If it's possible to set up the entry level, and in most cases hopefully that would be possible, and it doesn't cause undue hardship on the employer to do so we should be able to set up the facility to be able to do so. That would also include things like access to elevator access and just wanted to move around the office and things like that. We want to make sure that the facilities are designed in such a way that they can make the accessibility for people with disabilities if it doesn't cause undue hardship on the employer