| title | subtitle | author | course | affiliation | date | revealjs-url | output | |||||||||||||
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Employment Law: |
An Overview |
Eric M. Fink |
Intro to Law |
Elon University |
25 March 2020 |
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Imagine a government that assigns almost everyone a superior whom they must obey. Although superiors give most inferiors a routine to follow, there is no rule of law. Orders may be arbitrary and can change at any time, without prior notice or opportunity to appeal. Superiors are unaccountable to those they order around. They are neither elected nor removable by their inferiors. Inferiors have no right to complain in court about how they are being treated, except in a few narrowly defined cases. They also have no right to be consulted about the orders they are given.
Elizabeth Anderson, “Lecture II: Private Government”, 35 Tanner Lectures in Human Values, 94 (2016)
A hired worker is an employee if the hiring party has the right to control the manner and means of performing the work; the worker is an independent contractor if the hiring party merely specifies the desired result but the worker has the right to decide how to accomplish it.
The OA and FedEx's policies and procedures unambiguously allow FedEx to exercise a great deal of control over the manner in which its drivers do their jobs.
Alexander v. FedEx Ground Package System, Inc., 765 F. 3d 981 (9th Cir. 2014)
- Driver uniforms and personal appearance
- Specifications and appearance of delivery vehicles
- Times and hours of work
- Service areas and packages to be delivered
- Interactions with customers
Alexander v. FedEx Ground Package System, Inc.
This government does not recognize a personal or private sphere of autonomy free from sanction. It may prescribe a dress code and forbid certain hairstyles. Everyone lives under surveillance, to ensure that they are complying with orders. Superiors may snoop into inferiors’ e-mail and record their phone conversations. Suspicionless searches of their bodies and personal effects may be routine. They can be ordered to submit to medical testing. The government may dictate the language spoken and forbid communication in any other language. It may forbid certain topics of discussion. People can be sanctioned for their consensual sexual activity or for their choice of spouse or life partner. They can be sanctioned for their political activity and required to engage in political activity they do not agree with.
Elizabeth Anderson, "Private Government"
- Cloutier was a cashier at Costco
- Costco adopted an employee policy prohibiting all facial jewelry except for earrings.
- Cloutier refused to remove her facial jewelry, asserting it was part of her religious practice as a member of the Church of Body Modification.
- Costco suspended her for non-compliance with the policy & Cloutier sued for religious discrimination under federal and state law.
Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (2004)
- "Under Title VII, an employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held religious belief and a condition of employment, unless such an accommodation would create an undue hardship for the employer's business."
- "Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco's eyes, reasonably professional in appearance."
- Giving Cloutier an "exemption from the no-facial-jewelry policy" (the only accommodation she would accept) "would constitute an undue hardship", because it would result in Costco "forfeit[ing] its ability to mandate compliance and thus los[ing] control over its public image."
Cloutier v. Costco Wholesale Corp.
Private sector employees have limited privacy protection in the workplace.
- Employers may generally search employees and their belongings without requiring "reasonable suspicion" or "probable cause".
- Employers may generally monitor employee activity, including break times, phone calls, computer use, etc.
- Courts have recognized tort claims by employers in some where the manner or circumstances of an employer's surveillance, search, or interrogation amounted to a "highly offensive", "extreme", or "outrageous" breach of social norms.
See, e.g., Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009); Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010); Bodewig v. K-Mart, Inc., 635 P.2d 657 (Or. Ct. App. 1981); Hall v. May Department Stores Co., 637 P.2d 126 (Ore. 1981)
Employees' social media posts, which concerned income tax liabilities resulting from employer's mistakes in witholding, were protected concerted activity under § 7 of the National Labor Relations Act, and employer commited unfair labor practices in violation of the Act by interrogating employees about the posts, threatening them with discharge, and discharging them under company's social media policy.
Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), aff’d, Three D, LLC v. NLRB, No. 14-3284 (2d Cir. Oct. 21, 2015)
An employer shall not require or request an employee or applicant for employment to do any of the following:
(1)\ Disclose a username or password for the purpose of accessing personal social media.
(2)\ Access personal social media in the presence of the employer.
(3)\ Divulge any personal social media, except as provided in subdivision (c).
California Labor Code § 980(b)
- Curay was a teacher at Ursuline Academy, a private Roman Catholic school.
- She was fired after signing her name to a pro-choice advertisement that ran in a local newspaper.
- She sued for employment discrimination under Title VII, alleging that she was fired in retaliation for her opposition to unlawful employment practices and that Ursuline had not fired male employees who also engaged in conduct that was contrary to Catholic Church doctrine.
Curay-Cramer v. Ursuline Academy, 450 F.3d 130 (2006)
- Title VII's anti-retaliation provision did not apply, because the advertisement did not mention Ursuline or its employment practices.
- "In order to assess th[e] claim of the relative harshness of penalties for 'similar conduct,' we would have to measure the degree of severity of various violations of Church doctrine."
- "This exercise would violate the First Amendment."
Curay-Cramer v. Ursuline Academy, 450 F.3d 130 (2006)
Alexander Hertel-Fernandez, How Employers Recruit Their Workers into Politics—And Why Political Scientists Should Care, 14 Perspectives on Politics 410 (2016)
Section 1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a)\ Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b)\ Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Section 1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
California Labor Code §§ 1101-1106
It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee, or discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the prospective employee or the employee engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee's job performance or the person's ability to properly fulfill the responsibilities of the position in question or the safety of other employees.
When an employer and employee enter into a contract of employment for an indefinite period, either party may terminate the employment at any time, for any reason or no reason at all, without liability for breach of contract.
- Applied Analytical contacted Kurtzman to recruit him for a job.
- In response to Kurtzman's inquiries, the company offered assurances of job security, e.g. "If you do your job, you'll have a job"; "This is a secure position"; "We're offering you a career position".
- Kurtzman accepted the offer, left his previous job, sold his home in Massachusetts, and relocated with his family to North Carolina.
- 8 months later, he was fired.
Kurtzman v. Applied Analytical Industries, Inc., 493 S.E.2d 420 (N.C. 1997)
North Carolina is an employment-at-will state. This Court has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.
[ *** ]
[P]laintiff-employee's change of residence in the wake of defendant-employer's statements here does not constitute additional consideration making what is otherwise an at-will employment relationship one that can be terminated by the employer only for cause.
Kurtzman v. Applied Analytical
The at-will presumption is supposed to work both ways:
- The employer is free to fire the employee at any time without needing a good reason.
- The employee is likewise free to quit at any time without needing a good reason.
- No requirement that either party give advance notice.
- Contractual restraints
- Non-compete agreements
- Repayment obligations
- Market concentration & collusion
- Mergers
- No-poaching agreements
These employer strategies contribute to labor market monopsony.
- Specified term of employment
- For-cause provisions
[T]he plaintiff alleges that when she was hired she was required to sign a statement that she had read the hospital policy manual which provides she may only be discharged for cause and that certain procedures must be followed in order for her to be discharged. She also alleges the statement she signed was to be a part of her employment contract. She alleged further that she was discharged without cause and without following the procedures of the personnel manual. We believe that … the plaintiff has sufficiently alleged that the policy manual was a part of her employment contract which was breached by her discharge to survive the motion.
Trought v. Richardson, 338 SE 2d 617 (NC App. 1986)
[A]n employer's personnel manual is not part of an employee's contract of employment.
[ *** ]
While this Court has not addressed the issue presented in Trought and does not do so here, that case is readily distinguished from the case at bar by reason of the specific no-discharge-except-for-cause allegation in Trought. The management procedure in question here, and upon which plaintiff relies, contains no such express representation, and plaintiff does not so allege.
Harris v. Duke Power Co., 356 S.E.2d 357 (N.C. 1987)
In determining whether there exists an implied-in-fact promise for some form of continued employment courts have considered a variety of factors in addition to the existence of independent consideration. These have included, for example, the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.
A related doctrinal development exists in the application to the employment relationship of the "implied-in-law covenant of good faith and fair dealing inherent in every contract."
Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311 (1981)
North Carolina law does not allow claims of bad faith discharge in the absence of public policy violations.
Salt v. Applied Analytical, Inc., 412 S.E.2d 97 (N.C. App. 1991)
[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.
Coman v. Thomas Mfg. Co., Inc., 381 SE 2d 445 (NC 1989), quoting Sides v. Duke University, 328 S.E.2d 818 (N.C. App. 1985)
- Federal DOT regulations limit consecutive hours of driving, mandate minimum rest periods, and require driving logs, for long-haul truck drivers.
- NC DMV regulations provide that the federal DOT regulations apply to truck drivers operating in North Carolina.
- Coman alleged he was fired after he refused the company's orders to drive longer than permitted under the regulations and to falsify his logs.
- The NC Supreme Court held that Coman stated a claim for unlawful discharge in violation of the state's public policy, as embodied in DMV regulations.
Coman v. Thomas Mfg. Co., Inc.
Under the rationale of Sides, Coman, and Amos, something more than a mere statutory violation is required to sustain a claim of wrongful discharge under the public-policy exception. An employer wrongfully discharges an at-will employee if the termination is done for "an unlawful reason or purpose that contravenes public policy."
[ *** ]
In this case, defendant's allegedly unlawful conduct was the failure to comply with a regulatory statute governing employee drug-testing procedures. In contrast, defendant's reason for terminating plaintiff's employment was permissible. Under the doctrine of employment at will, an employer who may fire an employee for any reason or no reason at all may certainly terminate an employee for suspected drug use as part of an effort to maintain a drug-free workplace.
Garner v. Rentenbach Constructors Inc., 515 S.E.2d 438 (N.C. 1999)
It shall be an unlawful employment practice for an employer -
(1)\ to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2
Can a male employer terminate a long-time female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee? This is the question we are required to answer today. For the reasons stated herein, we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.
Nelson v. Knight, 834 N.W.2d 64 (Iowa 2013)
Many employement & labor statues include provisions against retaliatory discharge or other adverse employment actions.
It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Title VII, 42 U.S.C. § 2000e-3
[A]n employee's refusal to follow a supervisor's order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory.
Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123 (Cal. 2005) (holding employer not entitled to summary judgment on employee's claim for retaliation under the California Fair Employment and Housing Act (FEHA), Cal. Gov.Code, § 12900 et. seq.)