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Labor and Employment Law
Qinglan Bai
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§ 1: Origins and the
Contemporary Era
 Historically, employment law was governed
by the common law doctrine of
“employment at will” where either employer
or employee could terminate the relationship
at any time, for any reason.
 Today employment law is heavily regulated
by statutes.
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 The modern statutory scheme emphasized in the course
includes:
 The Equal Pay Act of 1963 (Amending the Fair Labor
Standards Act of 1938) prohibiting wage discrimination
against female employees;
 Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e,
et seq., applicable to both public and private employers,
labor organizations, and employment agencies – and
establishing protections against discrimination based on
race, color, sex, religion and national origin;
 The Age Discrimination in Employment Act of 1967,
prohibiting discrimination against employees age 40 or
older;
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 Title I of the Americans with Disabilities Act of 1990, 42
U.S.C. §12111, as amended in August, 2009,
prohibiting discrimination against qualified individuals
with disabilities and reaffirming the statutory Title I
definition of “disability”;
 The Civil Rights Act of 1991 (Amending certain sections
of Title VII and the ADA), providing for compensatory
and punitive damages for intentional discrimination, and
for jury trials in Title VII cases, and overturning the
Wards Cove line of cases and reaffirming the basic
holding of Griggs v. Duke Power (See 42 U.S.C.,
§2000e-2(k).
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§ 2: Employment at Will &
Employee Termination Claims
 Traditionally, employment relationships have
been by common law doctrine of
“employment at will.”
 Either party may terminate at any time for
any reason.
 Exceptions: Contract, Tort, Public Policy.
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Wrongful Discharge
 The doctrine of employment-at-will allows
the employer and the employee to
terminate employment at any time, for
any reason, without liability.
 In US, some states however recognize
one or more judicial exceptions to this
rule, while some states recognize none.
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Doctrines and Theories against
Various Terminations
1. Good Cause Statutes, Implied Covenant of Good
Faith,
 & the Life-Cycle Theory of Employment
 2. Promissory Estoppel
 3. Tortuous Interference with Contract Rights
 4. Discrimination Statutes
 5. Anti-Retaliation, Whistleblowing, & Free Speech
Rights
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Employee Claims Other than for
Termination
 1. Claiming Wrongful Actions Short of
Termination
 2. Infliction of Emotional Distress; Abusive
Supervision
 3. Harassment: Sexual, Discriminatory, or
Retaliatory
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§3: Employee Wages &
Benefits
 Hours and Wages.
 the prevailing wage
 the beginning of minimum wages.
 Exception: eg. US Fair Labor Standards Act
(FLSA) -- an extension of wage and hour
regulation to workers in interstate commerce.
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The Minimum Wage, Overtime
Wages, & Wage Deductions
1. The Required Rates
 2. Exempt vs Nonexempt Employees
 3. What Compensation Counts?
 4. What Hours Count?
 5. Employers Charging Employees for
Expenses & Losses
 6. Enforcement & Remedies
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§4: Employment Discrimination
Law
 Employment discrimination: discrimination in hiring,
promotion, job assignment, termination, and compensation.

Laws often prohibit discrimination on the basis of:
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Race or color
Ethnicity or national origin
Sex or gender
Pregnancy
Religion or creed
Political affiliation
Language abilities
Citizenship
Disability or medical condition
Age…
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Intentional and Unintentional
Discrimination
“Disparate-Treatment” Discrimination
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Plaintiff is a member of a protected group
Plaintiff suffered an adverse employment
action
Plaintiff is otherwise qualified to hold the
position (minimally)
the Defendant's actions were motivated by
discriminatory intent.
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 “Disparate Impact” Discrimination.
 a disproportionate “adverse impact”, caused by
 an employment practice or policy ,on
 members of the protected class, without
 "business necessity"
 A facially neutral employment practice is one that
does not appear to be discriminatory on its face;
rather it is one that is discriminatory in its effect.
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 adverse impact:
 substantially different rate of selection in hiring,
promotion, or other employment decision which
works to the disadvantage of members of a race
or sex group.
 Protected class:
 The term describes characteristics or factors
which can not be targeted for discrimination and
harassment, such as race, gender, age.
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 BFOQ :a bona fide occupational
qualification is a quality that employers are
allowed to consider when making decisions
on the hiring and retention of employees
 – qualities that when considered in other
contexts would constitute
discrimination .Such qualifications must be
listed in the employment offering.
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§ 5. Race, Color and
Gender Discrimination
 Title VII prohibits employment policies or
intentional/ negligent discrimination on basis
of race, color or Gender “Sex” Discrimination.
 Company policies that discriminate are
illegal, unless (except for race) they have a
substantial demonstrable relationship to
realistic qualifications for job.
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Gender “Sex” Discrimination
 Employers are prohibited from classifying jobs
as male or female or from advertising such,
unless employer can prove gender is
essential to the job.
 Plaintiff must show gender was determining
factor in hiring, firing or lack of promotion.
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Gender Discrimination
 Two types of sex discrimination:
 Differential treatment.
 Sexual harassment:
Hostile Work Environment.
Quid Pro Quo.
 Case 34.1: Carey v. Mount Desert Island
(1998).
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Sexual Harassment
 Although Title VII does not specifically
mention sexual harassment as a form of
sex discrimination, the U.S. Supreme
Court has interpreted Title VII’s
prohibition against sex discrimination to
include a prohibition against sexual
harassment.
 There are currently two forms of
recognized sexual harassment:
 Hostile Work Environment.
 Quid Pro Quo.
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Hostile Work Environment
 Hostile environment occurs when
workplace is “permeated” with
discriminatory intimidation, ridicule, insult
so severe to alter the conditions of the
victim’s employment.
 The conduct in the workplace must be
offensive to a reasonable person as well as
to the victim, and it must be severe and
pervasive.
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Harassment by Supervisors
 Quid Pro Quo harassment involves the
demands for sexual favors by a superior
from a subordinate, in exchange for some
workplace benefit.
 Under certain conditions, an employer may
be liable for the quid pro quo harassment
committed by its supervisory employees.
 Case 34.2: Jin v. Metropolitan Life Ins. Co.
(2002).
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US Supreme Court Guidelines
 Faragher v. City of Boca Raton (1998)
 Employer (city) could be liable for supervisor’s
harassment even though the employer was
unaware of the conduct. Harassment policies
and procedures had not be distributed among
employees.
 Burlington Industries v. Ellerth (1998).
 Company liable for harassment even though the
employee suffered no adverse job
consequences.
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US Supreme Court Guidelines
 Employers have a defense if:
 They took “reasonable care to prevent and
correct promptly any sexually harassing
behavior” by establishing and distributing
effective harassment policies and procedures.
 That the employee suing for harassment failed
to follow these policies and procedures.
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Harassment by Co-Workers
 Employer generally liable only if employer
knew or should have known and failed to
take action.
 Employee notice to supervisor is notice to
Employer under agency law.
 Employers may also be liable for
harassment by non-employees.
 Same-sex harassment also violates Title VII.
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Age Discrimination
 The Age Discrimination in
Employment Act (ADEA) protects
individuals over the age of 40 from
workplace discrimination that favors
younger workers.
 Under Kimmel v. Florida Board of
Regents (2000), states are immune
from private lawsuits brought in
federal court under 11th Amendment.
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Discrimination based
on “Disability”
 The Americans with Disability Act (ADA)
requires employers to offer reasonable
accommodation to employees or applicants
with a “disability” who are otherwise
qualified for the job they hold or seek.
 The duty of reasonable accommodation
ends at the point at where it becomes an
undue hardship.
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§5: Labor Relations Law
Labor Union (Trade Union)
 bargains with the employer on behalf of
union members
 negotiates labor contracts (collective
bargaining) with employers
 negotiation of wages, work rules, complaint
procedures, rules governing hiring, firing
and promotion of workers, benefits,
workplace safety and policies
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Labor Union Laws in US[2]
 National Labor Relations Act.
 Establishes the right of workers to strike and
engage in collective bargaining.
 Labor Management Relations Act.
 Prohibits certain unfair union practices such as
closed shops.
 Labor-Management Reporting and
Disclosure Act.
 Regulates the internal operations of unions and
outlaws hot-cargo agreements.
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Union Organization
 Elections.
 Election Campaigns.
 The National Labor Relations Board regulates
the rights and obligations of employers and
workers in the election process.
 Each side can pursue their objectives, but cannot
interfere, beyond certain limits, in the other’s
activities.
 Case 33.2: Associated Rubber v. NLRB
(2002).
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Collective Bargaining
 Collective bargaining is the process by
which management and labor negotiate the
terms and conditions of employment.
 The NLRB will certify an exclusive bargaining
agent for labor.
 Both labor and management must bargain in
good faith, but the law does not require that
they reach an agreement.
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Strikes
 There are two basic forms of strikes:
 Economic Strikes.
 These are strikes over wages.
 Workers can be replaced by permanent
replacements.
 Unfair Labor Practice Strikes.
 These are strikes alleging that the employer has
committed an unfair labor practice.
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§ 6: Health and Safety
 Intentional: “Disparate-Treatment”
Discrimination. Applicant must prove:
 She is member of a protected class;
 Applied, qualified and rejected for job; and
 Employer continued to seek applicants.
 Negligent: “Disparate Impact”
Discrimination.
 Non-protected applicant sues Employer who
tries to integrate members of protected
classes into workplace.
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Equal Pay Act of 1963
 The EPA amends the Fair Labor Standards
Act to prohibit gender-based discrimination
in wages paid for similar jobs performed
under similar conditions.
 Pay differentials for jobs with the same or
similar jobs can be justified on the basis of
seniority, merit, a piece-work system, or any
factor other than gender.
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Workers’Compensation Laws
 Reduce employer liability to employees for
workplace injuries, and provide a measure
of assurance that workplace injuries will be
compensated, regardless of the solvency of
the employer, by:
 Requiring that injured employees make a claim
against the employer’s workers’ compensation
insurance policy, instead of suing the employer.
 Requiring most employers to carry workers’
compensation insurance.
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Basic Benefits and Coverage
 a. Benefits and procedures
 b. Who is an employee?
 c. “Arising out of and in the course of
employment”
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Exclusivity of Remedies
 a. The fundamental bargain
 b. Exception for intentional acts
 c. Non-physical torts
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