Downloaded From OutlineDepot.com Employment Law Outline - Winter 2013 (Sanchez) Fair Treatment & Protected Classes o Title VII of the Civil Rights Act of 1964 Covers public and private employers + state/local public employers Private employers must have more than 15 employees State has no 11th Amendment immunity from suit Bans: race, color, religion, sex and nat'l origin discrimination Race discrimination BFOQ defense unavailable Any race can bring suit, even member of same race Harassment = hostile work environment Affirmative action o o o Court-ordered - need finding of prior discrimination by employer Voluntary - easier at hiring stage and rejected at firing stage ***Before ER engages in intentional discrimination to remedy disparate impact issue, ER must have strong reason to believe that it will be subject to disparate impact liability if it fails to act Legal frameworks for bringing a claim: Disparate Treatment [INTENTIONAL] o McDonnell-Douglas Framework o Mixed Motive o Employer admits that it discriminates Defense = BFOQ or affirmative action plan Disparate Impact [UNINTENTIONAL] o o Employer's defense - even absent discriminatory reason, it would've taken the same action Plaintiff still entitled to declaratory relief and att'y fees Plaintiff can rely on direct or circumstantial evidence Facial Discrimination Plaintiff proves prima facie case Employer articulates legitimate, nondiscriminatory reason Burden shifts to plaintiff and plaintiff proves employer's motive is a pretext Plaintiff identifies a neutral employment practice that injures a protected class Employer defense = business necessity Sex and pregnancy discrimination 1 Downloaded From OutlineDepot.com Sex-stereotyping (i.e., women in \"traditional\" roles, women need time off for kids, etc.) Pregnancy Discrimination Act - bars bias based on pregnancy and abortion Employer duty is to treat pregnant employees the same as non-pregnant employees Sexual Harassment o Quid pro quo o Hostile work environment P does not need to prove psychological injury ER is per se liable for harassment by supervisor when EE suffers tangible employment action When EE suffers NO tangible employment action, ER defense = It exercised reasonable care to prevent/correct harassment promptly EE failed to avail self of corrective option Constructive discharge due to harassment is actionable under Title VII o Same-sex sexual harassment is actionable while sexual orientation harassment is NOT o Sexual overtures must be unwelcome Sex BFOQ - only applied rarely (e.g., prison guard case in male prison where it was too dangerous and women could be overpowered) Sex discrimination in pension plans actionable (man couldn't collect wife's pension unless he relied on her for more than 50% of his income - presumed that a spouse is totally dependent on the working spouse) National Origin Speaking English fluently - could be a prerequisite for the job and NOT discrimination (Fragante) English-only laws (upheld in some states) Hostile work environment Height/weight rules assessed under disparate impact analysis Religion Employee must prove: o o o o Practice is religious Belief is sincerely held Inform ER of conflict EE suffers discriminatory treatment 2 Downloaded From OutlineDepot.com Common conflicts: required to work on Sabbath, grooming and wearing religious garb at work ER duty = reasonable accommodation ER defense = undue burden (need only show a de minimis burden) Church has greater flexibility to discriminate and terminate - suits barred under ministerial exception Other Title VII defenses - bona fide seniority system and wage gap authorized under EPA Retaliation Claims Adverse employment actions not limited to what occurs at workplace Any ER action that would dissuade a reasonable EE from filing a claim suffices ER cannot retaliate against current or former EEs Title VII also covers EEs who speaks out about bias not on own but while answering questions Title VII recognizes 3rd party retaliation for persons who did not themselves engage in protected activity Title VII Procedure File charge w/EEOC or state agency EEOC may sue ER Att'y Gen'l may sue state All district court proceeding under Title VII are de novo Complaint need not prove prima facie case just a short statement of claim showing that P is entitled to relief Title VII Remedies Injunctions Reinstatement Retroactive seniority Back pay (between filing of claim and judgment) - 2 years before filing of claim Punitive damages Front pay (between judgment and reinstatement) - not an element of compensatory damages Att'y fees for prevailing party Arbitration in lieu of litigation 3 Downloaded From OutlineDepot.com o Provision on CBA that mandates arbitration of ADEA claims is enforceable EEOC can still sue ER for ADA violation, even if EE is bound by CBA arbitration clause GINA Bars ER from requiring or requesting that one undergo a genetic test as a condition to employment and bias on the basis of genetic information. Same coverage and remedies as Title VII but no disparate impact claims allowed Equal Pay Act (EPA) Covers private and public ER ER must pay men and women the same for equal work EE's case: Need not prove intent EE has to show that 2 jobs are substantially equal (need not be identical) 4 factors: o o o o ER's defense - unequal pay is the result of: o Equal skill Equal effort Equal responsibility Similar working conditions and hazards Bona fide merit systems Piece-rate system Seniority system Any other factor than sex Enforcement and Remedies EEOC can bring action for civil liability, $ damages and injunctions EE can seek civil damages DOJ can bring criminal case EEOC, EE or class can sue for back pay, damages and att'y fees EEOC can seek injunction 2-year SOL (unwillful) and 3-year (willful) Supervisors can be individually liable ER's good faith is not a defense but renders violation non-willful Comparable Worth Doctrine 4 Downloaded From OutlineDepot.com o Compares wage rates for jobs held mostly by men with wage rates for jobs held mostly by women that provide equal value to ERs NOT actionable under Title VII (market force defense applies) or EPA (jobs are not equal work) Age Discrimination in Employment Act (ADEA) Covers public and private ERs Private ER - 20+ EEs and mandatory retirement exception for highly paid executives Protects EEs age 40 and over Bans mandatory retirement w/certain exceptions (LEO, firefighters, airline pilots at age 65, etc. 11th Amendment - state EEs cannot sue state for $ damages Voluntary affirmative action for older EEs is allowed - ER may favor older workers over workers under 40y/o EE claim - disparate treatment - EE must show They are at least 40 y/o Are a competent EE Suffered adverse employment action Was replaced by younger EE (does not have to be younger than 40, e.g. 68 y/o replaced by 65 y/o) ***Disparate impact, retaliation, harassment and constructive discharge claims are also actionable ER defenses BFOQ Business necessity Bona fide seniority system RFOA (most common) - ER bears burden of proving this ***Decisions based on years of service OK (not age-based) Enforcement/Remedies o Exceptions: suits by fed'l gov't, suits against state agents in their individual capacity, suits for injunctions and suits against cities and counties that are not subdivisions of state, state may waive immunity File case w/EEOC EE must give EEOC a chance to settle the case Agreement to arbitrate case is enforceable Can get back pay, liquidated damages, reinstatement or front pay (in lieu of reinstatement), retroactive seniority and att'y fees Willful violation - no compensatory or punitive damages Older Workers' Benefit Protection Act (OWBPA) Regulates early retirement programs Older workers' benefits may be less than those for younger EEs if the cost is the same for both 5 Downloaded From OutlineDepot.com o Waivers of ADEA must be knowing and willful Americans with Disabilities Act (ADA) Covers private and public employers State EEs cannot sue state for $ damages under 11 th Amendment Definition of disability Transitory impairments (6 months or less) - not covered by ADA and no reasonable accommodation is required Episodic conditions and conditions in remission are covered if they limit a major life activity Impairments are evaluated in an unmitigated state EXCEPT eyeglasses/contact lenses Symptomatic HIV+ people are disabled per se Record of such impairment Regarded as having the impairment Bans bias against EE who associates with disabled people Definition of qualified individual Does not include drug users ER may screen out drug using applicants Receipt of SSD benefits does not disqualify person from ADA coverage Pre-Employment Medical Exams, Screenings and Inquiries Excludes physical agility tests ER may assess and question whether EE can perform job After job offer, ER may conduct medical exam of al new EEs Employer Duty Physical or mental impairment that substantially limits 1 or more life activities Reasonable accommodation to make workplace accessible and usable Job reassignment or modified work schedule No duty to accommodate non-disabled EE who is caring for disabled family member ER does not need to accommodate medical marijuana user in workplace EE case/procedure (McDonnell-Douglas framework) Plaintiff proves prima facie case Employer articulates legitimate, nondiscriminatory reason Burden shifts to plaintiff and plaintiff proves employer's motive is a pretext Can bring hostile work environment and retaliation claims 6 Downloaded From OutlineDepot.com o ER defense - undue hardship based on cost, ER's onsite resources, ER's overall resources and nature of operations Reconstruction Civil Rights Acts o Complaint need not prove prima facie case just a short statement of claim showing that P is entitled to relief File charge w/EEOC or state agency 1981 Only applies to private employers Only applies to intentional discrimination Includes discrimination based on race and ancestry (incl. against whites) Retaliation - complaining to ER about another person's dismissal is a protected activity Remedies - uncapped compensatory and punitive damages 1983 Only applies to state action EE must prove intentional discrimination Action can be filed in state or federal court Gov't EE can be sued individually and in official capacity for damages Remedies - damages and punitive (except municipality), back pay, injury to reputation and mental distress Immigration Reform and Control Act Prohibitions for ER May not hire undocumented aliens Can't discriminate against an individual based on nat'l origin or citizenship status ER's Duties Verify US citizenship Complete verification w/in 3 days of hire Preserve verification form for 3 years Examine documents to see if reasonably genuine (do not need to authenticate) Penalties - civil and criminal 7 Downloaded From OutlineDepot.com Remedies - injunction and back pay except NLRB cannot award back pay to illegal alien unlawfully fired for engaging in union activity Labor Issues - Fair Practices & Employee Safety/Protection Fair Labor Standards Act (FLSA) o Covers public and private sectors o Weak preemptive effect on state labor laws o Applies to all businesses \"engaged in commerce\" except family businesses o States have 11th Amendment immunity against claims for $ damages o Definition of \"Employee\" Anyone employed by an ER Apply Economic Reality Test: o Does not include IC or prisoners (unless working for private ER) Subjects NOT covered by FLSA: o Vacation, holiday, severance or sick pay Meal or rest breaks Premium pay for weekend/holiday work Number of hours in day/week an EE must work (if over 16 y/o) Exemptions from Overtime Pay Seasonal workers, babysitters and some journalists Executive, administrative, professional, computer, outside sales Three-part test for exempt status: o ER right to control manner in which work is performed EE's opportunity for loss or profit EE's investment in equipment Special skills Permanence of working relationship Whether work performed is pat of ER's business Salary (<$23,600 is non-exempt and >$100,000 is exempt) Salary basis Duties Compensable/Non-Compensable Hours Time spent on key job duties and incidental duties integral to job NOT \"waiting to be engaged\" Time spent donning and doffing protective equipment is compensable 8 Downloaded From OutlineDepot.com o o Postdonning and predoffing walking time is compensable Meal times over 2 hours are not compensable Commuting time is NOT compensable ER must give new moms reasonable time to breastfeed kid in 1 st year Child Labor 10 and 11 y/o may work as hand harvesters to pick short-season crops (8 weeks in a year) Must be 16 y/o to work in most non-farm jobs Must be 18 y/o to work in hazardous jobs Exceptions - children employed by parents in agriculture, actors and newspaper delivery persons Enforcement Sec'y of Labor brings action for civil liability, $ fines and injunction EE may seek civil damages DOJ - criminal case SOL - 2 years (nonwillful) and 3 years (willful/reckless) Retaliation - oral complaints protected Employee Polygraph Protection Act (EPPA) o Bars most private ERs from using lie-detector for pre-employment screening and during employment o Covers all ERs engaged in commerce o Prohibits private ER from: o Causing any EE to take lie-detector test Using test results in any way Discharging, discriminating against or disciplining any EE/applicant on basis of lie detector test or refusal to take test Disciplining EE for exercising EPPA rights Exemptions All public-sector ERs are exempt Fed gov't can test private sector EEs who have access to confidential info Can test DOD or DOE contractors Can test members of intelligence services Can test FBI contractors Private ER engaged in investigation of theft, embezzlement, etc. (but cannot test to determine whether theft has occurred) Private ER involved in security services 9 Downloaded From OutlineDepot.com o Penalties/Remedies Where drugs are involved $ penalties EE can get legal/equitable relief, being hired, reinstated or promoted, lost wages/benefits and costs and att'y fees SOL - 3 years Preemption - state/local law or CBA that is more restrictive is NOT preempted by EPPA Nat'l Labor Relations Act (NLRA) o Only governs private-sector collective bargaining o Goal: eliminate coercion or interference w/EE's rights to engage in protected concerted acts o 7 employee right to: o Self-organization Engage in protected concerted acts (strikes) Protected acts relate to terms and conditions of employment Unprotected activity = violence, strikes in breach of K Concerted = more than 1 in non-union setting Constructive concerted = at least 1 EE invoking CBA in union setting Bargain collectively thru agent of their choice Not join a union in right to work states Jurisdiction of NLRB Representation cases/procedure for conducting a union election Unfair labor practice cases o Determines appropriate bargaining unit Determines whether EEs want an election Certifies/decertifies union Charges filed w/NLRB NLRB gen'l counsel has unreviewable discretion as to whether a charge should be dismissed or a complaint filed Case heard by an ALJ and NLRB panel issues opinion Appeal to Fed'l Circuit Court where NLRB sits Preemption Garmon State courts lack jurisdiction over 7 and 8 matters 10 Downloaded From OutlineDepot.com Field Congress intended some acts to be unregulated by federal or state law 301 preemption test Exception - matters of peripheral concern to fed'l labor law and interests deeply rooted in local feeling Whether state court must interpret CBA to decide state claims 301 supports fed'l cause of action only for breach of K, not claims of tortious interference w/K Occupational Safety & Health Act (OSHA) o Covers private and some public ERs o ER duties o EE rights and duties o Obey OSHA standards Keep workplace free from recognized hazards Question unsafe conditions and require inspection Assist OSHA inspectors Aid in judging whether imminent danger exists Bring action for injunction w/Sec'y of Labor Refuse to perform hazardous work if there is reasonable fear of injury or death and there is no other way to cure danger EE faces no sanctions for OSHA violation by OSHA but ER may discipline Protection from retaliation Right to access medical records Right to access exposure records Inspections In response to EE complaints After injury/death Imminent danger Regional programmed inspection If denied access, OSHA must get a warrant (exception: heavily regulated industries) Gov't must show PC or believe OSHA violations exist o Promulgation of standards: adopt existing standards, new standards and emergency standards o Violations o Sec'y of labor must show that ER failed to maintain workplace free of a hazard that was recognized and caused injury or death OSHA standards are only some evidence of the standards of care Some states say that violation of OSHA standard is negligence per se ER defenses Procedural defects (invalid warrant, denial of walkaround rights, vague citation and use of incorrect standard) 11 Downloaded From OutlineDepot.com Substantive defenses (compliance posed greater hazard, compliance not technically feasible, EE refused to comply, ER was ignorant of hazard) Compliance w/OSHA rules is not a defense to state tort or criminal liability o Enforcement = injunction o Remedies = injunction, civil penalties and criminal penalties for willful violation causing death, giving advance notice of inspection and knowingly lying to OSHA o OSHA preempts state/local laws on health and safety unless state submitted a plan to Sec'y of Labor that was approved, fire regulations, zoning, criminal and tort claims Fed'l Employment Compensation Act o Goals: o Joint Fed'l & State System o Claimant earned set amount of wages from ER Claimant is jobless Claimant is able to and available for work Claimant has registered at unemployment office Benefits are paid out of ER's reserve account Max of 26 weeks' benefits (can be more during economic recessions) Disqualification o Fed'l tax on payrolls (6.2%) Fed'l tax reduced if state law for compensating jobless meets fed'l standards Benefits Eligibility o Matching up jobless w/job openings Creating disincentives of ER to lay off EEs by experience rating (lower rates for fewer claims) Paying benefits to jobless Varies from temp postponement of eligibility to 1-year ineligibility Voluntary Quit Some states - leaving job w/out good cause Other states - leaving job w/out god cause connected to work Quitting over religious objections usually won't disqualify from benefits Misconduct Disobeying reasonable order Incompetence, inexperience, poor performance may be good cause to fire but are NOT misconduct that disqualifies from getting benefits Disqualifying for off-duty conduct is rare Factors of refusing suitable job Age Education Experience Degree of risk 12 Downloaded From OutlineDepot.com EE's past earnings Length of commute Duration of unemployment o Strike disqualifies but lockout does not o Setoffs: worker's comp, severance and pension Worker Adjustment & Retraining Notification Act (WARN Act) o Private ERs w/100+ EEs o Triggered if 50+ EEs are laid off o Triggered if there is an employment loss during any 30-day period at a single site for either: 33% of employees (if 50+); or 500+ EEs o Exception - part-time EEs working <20 in