Fundamentals of Employment Law

Front Cover
American Bar Association, 2000 - Law - 774 pages
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Contents

Employment Discrimination Law A Basic Overview
1
Proving and Defending Against Employment Discrimination Charges
5
How Does an Employer Present a Defense?
7
Remedies if Unlawful Discrimination Found
10
Releases of Discrimination Claims
11
Recent Developments
12
Interviewing and Hiring
13
Pregnancy Discrimination
15
Qualifying Reasons for Taking Leave
285
What Qualifies as a Serious Health Condition?
286
Healthcare Providers Certification
292
Leave Available
295
Measuring the 12Month Period
296
Employee Notice and Request for Leave Requirements
298
Designation of Leave and Notice to Employee
303
Compensation During Leave
306

Transfers
16
Leaves of Absence
17
Incidental Absences and Conditions Related to Pregnancy
19
Sex Gender Discrimination Recent Cases
20
Sex as a BFOQ
21
Sexual Orientation Discrimination
23
Areas Affected by Age Discrimination Laws
25
The Bona Fide Occupational Qualification BFOQ and Other Defenses
29
Bona Fide Executives and Other Exemptions
30
Releases of ADEA Claims
31
Developments Under the ADEA
33
Arbitration of Discrimination Claims
36
The Exclusion to the FAAs Coverage
38
The Importance of Adequate Notice
40
Arbitration Provisions in Handbooks and Applications
42
Railway Labor Act Cases
43
Exception for Religious Entities
45
Application of Reasonable Accommodation Factors
47
Religious Beliefs and Hostile Environment Discrimination
50
Retaliation
51
Cases Finding Retaliation
53
Postemployment Retaliation
54
Affirmative Action
55
Race Discrimination
56
Racial Harassment
58
National Origin Discrimination
60
National Origin Harassment
62
National Origin Discrimination and EnglishOnly Rules
63
Sexual Harassment The Changing Legal Landscape
65
Sexual Harassment Defined
66
Harassment Based on a Hostile Work Environment
67
SameSex Sexual Harassment
68
Personal Liability for Sexual Harassment
70
Liability for the Acts of Nonemployees
71
Liability to Those Not Harassed
72
Constructive Discharge
73
Defenses to a Claim of Sexual Harassment
75
Employee Unreasonably Failed to Use Harassment Policy
76
Harassment Claims Not Based upon Gender Fail
78
Badgering Employee over Sexy Clothes Not Sexual Harassment
79
Conduct Training
80
Audit Employment Decisions
81
Follow up on Remedial Measures
82
Disability Discrimination
83
Employers Subject to the ADA
85
Persons Protected by the ADA
86
EEOC Guidance on Mental Disabilities
91
Record of Impairment
96
Regarded as Having an Impairment
97
Relationship or Association with a Disabled Person
99
The Hiring and Interview Process
100
EEOC Guidance on Preemployment Inquiries Under the ADA
101
JobRelated Qualification Standards
102
Job Performance Testing
106
Medical Examinations of Applicants
107
Current Employee Medical Examinations
108
What Are the Essential Functions of a Job?
111
Cases Deciding Essential Functions
113
The ReasonableAccommodation Obligation
115
The EEOC Issues Its Guidance on Reasonable Accommodation and Undue Hardship
116
Job Restructuring and Work at Home
118
Only Known Disabilities Need Accommodation
120
Undue Hardship
123
Alcoholism and Drug Addiction
124
Drug Testing
126
Relation to Workers Compensation WorkRelated Injuries and LightDuty Assignments
128
Developing Law of Wrongful Discharge
131
Express Contracts
132
Other Types of Liability
133
Implied Covenant of Good Faith and Fair Dealing
134
Public Policy Exceptions
135
Arkansas
136
Other Types of Liability
137
Implied Contracts
138
Public Policy Exceptions
139
Other Types of Liability
140
Colorado
141
Implied and Express Contracts
142
Other Types of Liability
143
Connecticut
144
Other Types of Liability
145
Public Policy Exception
146
Implied Covenant of Good Faith and Fair Dealing
147
Public Policy Exceptions
148
Florida
149
Other Types of Tort Liability
150
Express or Implied Contracts
151
Other Types of Tort Liability
152
Implied Covenant of Good Faith and Fair Dealing
153
Idaho
154
Express Contracts
155
Express or Implied Contracts
156
Public Policy Exceptions
157
Other Types of Tort Liability
158
Public Policy Exceptions
159
Other Types of Tort Liability
160
Other Types of Tort Liability
161
Public Policy Exception
162
Kentucky
163
Public Policy Exception
164
Public Policy Exceptions
165
Other Types of Liability
166
Maine
167
Other Types of Liability
168
Public Policy Exceptions
170
Other Types of Liability
171
Massachusetts
172
Michigan
173
Implied Contracts
174
Other Torts
175
Public Policy
176
Other Theories of Liability
177
Mississippi
178
Public Policy Exceptions
179
Missouri Public Policy
180
Oral Contracts
181
Montana
182
Other Torts
183
Nebraska
184
Nevada
185
Public Policy Exceptions
186
Other Types of Liability
188
Public Policy Exceptions
189
Other Types of Liability
190
Express Contracts
191
Other Torts
193
Implied Contracts
194
Other Types of Liability
195
Public Policy Exceptions
197
Other Types of Liability
198
Implied Contracts
199
Public Policy Exceptions
200
Other Torts
201
Public Policy Exceptions
203
Implied Covenant of Good Faith and Fair Dealing
204
Other Torts
205
Public Policy Exceptions
206
Implied Covenant of Good Faith and Fair Dealing
207
Public Policy Exceptions
208
Implied Covenant of Good Faith and Fair Dealing
209
ExpressImplied Contracts
210
Public Policy Exceptions
211
Implied Covenant of Good Faith and Fair Dealing
213
South Carolina
214
Public Policy Exceptions
215
Public Policy Exceptions
216
Implied Covenant of Good Faith and Fair Dealing
217
Public Policy Exceptions
218
Public Policy Exceptions
220
Implied Covenant of Good Faith and Fair Dealing
221
Utah
222
Implied Covenant of Good Faith and Fair Dealing
223
Vermont
224
Public Policy Exceptions
225
Virginia
226
Implied Covenant of Good Faith and Fair Dealing
227
Washington
228
Public Policy Exceptions
230
Implied Covenant of Good Faith and Fair Dealing
231
Public Policy Exceptions
232
Implied Covenant of Good Faith and Fair Dealing
233
Public Policy Exceptions
235
Other Torts
236
Employment Torts HighRisk Components of Wrongful Discharge Lawsuits
237
Selected Tort Claims
238
Invasion of Privacy
246
Intentional and Negligent Infliction of Emotional Distress
248
Fraud Deceit and Misrepresentation
252
Interference with Prospective Economic Advantage and Related Claims
255
Interference with a Civil Action by Spoliation of Evidence
258
False Imprisonment
262
Assault and Battery
263
Loss of Consortium Alienation of Affection
264
Negligent Retention and Supervision
270
Negligent Training
273
Limiting Exposure
276
Negligent Hiring
277
Negligent Supervision and Retention
278
Negligent Training
279
The Family and Medical Leave Act and Related Parental Rights
281
The Family and Medical Leave Act
282
Covered Employers
283
Salary Pay Obligations
307
Benefits
310
Nondiscrimination Obligations
313
Recordkeeping
316
Employer Notice Requirements
317
Special Rules Concerning Employees of Local Educational Agencies and Private Schools
318
Impact of Collective Bargaining Agreements
320
Proposed Legislative Changes to the FMLA
321
The Interaction of the FMLA with Other Laws
323
Relationship to Other Types of Leave
324
Pregnancy Leave
325
Pregnancy and LightDuty Assignments
326
Pregnancy and BreastFeeding
327
Morning Sickness and Other Claims Related to Pregnancy
328
Pregnancy and the Americans with Disabilities Act ADA
329
The PDA and State Pregnancy Discrimination Laws
330
Military Leave and Civic Duty Leave
333
Employers Obligated to Provide Leave
334
Reasons for Taking Leave
335
Duration and Timing of Leaves
336
Compensation During Leave
337
Benefit Implications of Leave
338
Reinstatement Obligations
340
Protection of Reinstated Veterans from Discharge or Discrimination
345
Enforcement and Remedies
346
Verification Requirements and Options
347
Duration and Timing of Leaves
348
Compensation During Leave
349
Reductions in Force Issues and Strategies for the Downsizing Employer
351
Planning a Reduction in Force
352
Create and Document the Layoff Plan
358
Selecting Individuals for Layoff
359
Selecting the RIF DecisionMakers
361
Training the RIF DecisionMakers
362
Form a Review Committee
363
Completing the Layoff Process
364
Hiring During a Layoff
365
Assisting Employees with Transition
366
Which Employers Are Covered?
367
Mass Layoff Defined
368
Employment Loss Defined
370
Affected Employee Defined
371
PartTime Employee Defined
372
What Type of Notice Is Required?
373
Notice to the Representatives of Unionized Employees
374
Consolidation or Relocation of the Business
375
Exceptions that Reduce the Notice Requirements
376
Exemptions that Eliminate the Notice Requirements
378
Enforcement and Penalties
379
Releases of Claims
380
Good Faith Defense
381
Conclusion
382
To Restrict or Not to RestrictThat Is the Question Restrictive Covenants and Trade Secrets
383
The Law of Trade Secrets
385
Enjoining the Misappropriation of a Trade Secret
386
Summary of Law Relating to Covenants Not to Compete and Protection of Confidential Business Information
387
Arizona
388
Arkansas
389
California
390
Colorado
392
District of Columbia
393
Florida
394
Georgia
396
Illinois
397
Indiana
398
Iowa
400
Kansas
401
Nevada
402
New York
403
Ohio
405
Oklahoma
406
Oregon
407
Texas
408
Virginia
409
Washington
410
West Virginia
411
Wisconsin
413
Employee Privacy and Statutory Individual Rights
415
Privacy Rights in a Union Shop
420
Privacy Rights in Personal Lifestyles
421
Public Employees OffDuty Conduct
422
Smokers Rights
425
Investigation of Applicants and Employees
426
Potential Liability for Disseminating Information
427
Arrest Records
428
Fingerprints and Photographs
429
Polygraphs Honesty Tests Psychological Tests Physical Exams and Genetic Testing
432
A Viable Alternative to Polygraph Tests?
438
Psychological Testing
440
Physical Examination
441
Genetic Screening
442
Confidentiality and Use of Personnel Information
444
Personnel Records
445
Potential Liability for Improper Release of Personnel Information
447
Potential Liability for Interference with Prospective Economic Advantage
448
Recommendations
449
Intercepting Accessing and Disclosing Communications
450
The Consent Exception
453
Searches in the Electronic Workplace
456
Federal Statutes
457
Reducing Employees Expectations of Privacy
459
Other Statutory Employee Rights
461
Language Requirements
462
Political Activities
463
ThirdParty Representation
464
Whistleblowing
465
Federal Compensation Law in 1999
481
The Relationship Between State and Federal Wage and Hour Laws
482
Work Time for Minimum Wage and Overtime Purposes
495
The Minimum Wage Obligation
498
The Overtime Obligation
500
The Recordkeeping Obligation
504
Child Labor Obligations
505
Employee Enforcement of the FLSA
508
Defenses to Enforcement Actions
509
Criminal Penalties
511
The Provision of Materials or Supplies
512
Prevailing Wages Under Other Federal Acts
513
What Is the Prevailing Wage Obligation?
514
Remedies for Failure to Pay the Prevailing Wage
515
Defenses To Enforcement Actions
516
Addressing Employee Concerns over Health and Safety Issues in the Workplace
517
OSHAs Working Draft of a Proposed Ergonomics Program Standard
518
Developing an Ergonomics Program
524
Preergonomics Standards and FedOSHA Citations Under the General Duty Clause
526
Civil Litigation
527
AIDS
528
Guidelines for Preventing Transmission of HIV
529
Rights of Employees with AIDS or HIV
530
State and Local Legislation
534
Other Employer Concerns
538
Employee Benefit Issues
540
Tuberculosis in the Workplace
546
The Risk
547
Guidelines for Tuberculosis Control
548
Written ExposureControl Plans
549
Be Prepared
550
Recommended Employer Action
551
Legal Issues in the Courts
552
Smoking Is Not Battery
553
Workplace Substance Abuse An Overview of Federal and State Requirements
557
The Right to Use?
558
Governmental Regulations Requiring an Employer Response
564
Omnibus Transportation Employee Testing Act
565
Legal Restrictions on Drug and Alcohol Testing
567
Due Process
569
Equal Protection
570
State Constitutional Guarantees
571
Massachusettss Constitutional Right to Privacy
573
Statutory Restrictions
574
Federal Statutes
575
State Statutes
578
Local Ordinances
587
Methods of Drug and Alcohol Testing
588
Breath
589
Sweat
590
Motor Coordination
591
The Federal DrugFree Workplace Act
592
Investigation by Undercover Agents
593
Electronic Surveillance Recording of Employee Conversations
594
Searches of Desks and Lockers
595
Rehabilitation and Prevention
596
Employee Assistance Programs
597
Unionized Facilities
598
Conclusion
600
Collective Bargaining and LaborManagement Relations
601
The Duty to Provide Relevant Information
617
Common Collective Bargaining Contract Features
622
Union Security Clauses
624
Merit Pay and Incentive Clauses
625
MostFavoredNation Clauses
627
BackLoaded Contracts
628
CostofLiving Adjustments
629
Bargaining Past Contract Expiration
634
Use of Economic Weapons
636
SickOuts
638
Replacing Economic Strikers
640
Developments in LaborManagement Relations
647
Worker Committees and 8a2
649
Table of Cases
653
Index
733
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