Know What’s Right
It is nearly impossible to not be somehow impacted by the laws of the workplace today, and disputes in that arena are not uncommon.
On one hand, there is a variety of laws governing most workplaces and some industries are even more regulated than most. On the other hand, our work or business operations typically encompass the single largest portion of our daily endeavors, and on them often hang our well-being and sense of identity and worth.
Often asked to explain general labor/employment legal principles, Arbitrator Vaile created this webpage to help readers understand the big picture of labor and employment law.
The information presented on this site is intended for general information only. It should not be construed to be either legal advice, or as giving rise to an attorney-client relationship. Statutes of limitations are not provided herein, and you should consult directly and immediately with a private attorney if you believe you may have a legal claim.
“Labor law” refers to the state and federal laws and regulations governing collective bargaining, or union-related activities. The National Labor Relations Act (NLRA), 29 USC 151 et seq., governs the collective bargaining relationships in most private sector industries, and there are several other federal statutes that govern labor relations in specific industries and sectors of the economy, including federal employment and rail and air industries. Many states have also enacted collective bargaining statutes modeled on the NLRA, to cover some or all sectors of the economy not covered by federal law, including non-federal public sector workers.
“Employment law,” in contrast, is the general catch-all phrase that covers all other areas of the law related to the various phases, conditions and circumstances of the employment relationship, such as:
(This list is not exhaustive, but it hits many of the highlights.)
The second issue to keep in mind is that the disputants must determine whether their issue is governed by federal or state law. Most federal labor and employment laws exclude a number of industries, employers and/or employees from their coverage, and many states have enacted their own laws to “fill the gap” or provide greater protection than that provided under federal law.
The third point to be aware of is that issues and legal standards may also vary greatly depending on whether the dispute arises in the private or public sector. For instance, public sector employment frequently gives rise to certain constitutional protections related hiring, discipline, firing and the right to benefits. In contrast, such protections usually do not exist in private sector unless specifically provided through state statute, negotiated collective bargaining agreements, or binding employee handbooks or policies.
In private sector employment relations, the default status of non-unionized employment is “at will,” meaning an employee may generally be fired for any reason, even a bad one, provided he or she was not fired on grounds prohibited under the law, such as sex/gender, race, nationality, religion, age, disability or, in some cases, retaliatory discharge.
Finally, some public sector employee groups, such as public safety employees, are treated still differently by separate statute or regulations, and have different or additional protections.
Consistent with the foregoing, the nature of the dispute and the sector of the economy involved will largely determine the relevant legal standards, as well as what forum or administrative agency will hear the particular dispute.
Under some laws, you may only seek redress through the agency charged with enforcing that law, such as for Prohibited or Unfair Practice Complaint under labor law. In contrast, some other statutes provide a “right of private action” that permits a claimant to sue in court, such as under some employment discrimination laws. However, even if there is a right of private action, the claimant will generally be required to first exhaust his or her administrative remedies at the relevant agency, before proceeding to court.
Note that complaints filed under the authority of employment or labor contracts, and administrative actions, may have very short deadlines in which to file such claims. The deadlines may be measured in days or weeks, rather than months or years. Accordingly, you should contact the appropriate representative agency, or a private attorney immediately upon learning of the existence of a possible claim.
Union-related matters are governed by statute and enforced by a particular agency. All of the various statutes—federal and state—are similar in that they protect the right of certain employees to engage in collective bargaining, by prohibiting discrimination or retaliation based on union related activities, and by providing procedures under which employees can elect or decline to be represented by a labor organization (a union).
For employees working in the private sector, the starting point to determine relevant rights and duties will generally be the National Labor Relations Act (NLRA), 29 USC 151 et seq. The NLRA is enforced by the National Labor Relations Board (NLRB), and most other collective bargaining statutes—both state and federal—are generally modeled along the lines of the NLRA, and/or NLRB case law.
For many employees working in state, municipal or local government, or in the public school or higher education systems, union-related matters may be governed in the first instance by state law enforced by a state agency. For example, California, D.C., Illinois, New Mexico, Oregon, and Washington (among others) all have their own public sector collective bargaining law(s).
In contrast, employees engaged in the federal public employment sector will likely be covered under one of the following acts and agencies:
Labor law, in essence, protects employees’ rights to unionize, and to act together (“in concert”) to advance their interests related to wages, hours and conditions of employment. It does so by prohibiting any conduct that would “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed.” Some common unfair practices include the following.
Labor laws also prohibit violation of a collective bargaining agreement, once negotiated. Alleged contract violations can concern anything governed by the contract, such as bargaining unit work/subcontracting, just cause in the issuance of discipline, pay, and unilateral changes in terms and conditions of employment, to name only a few. However, contract claims are generally subject to the requirement to exhaust grievance-arbitration remedies and in most cases, the relevant Agency (particularly the NLRB) will “defer” to the grievance-arbitration process upon a party’s request.
Arbitral remedies for labor (including contract) violations often include one or more of the following:
Cease-and-desist orders
Extraordinary remedies or punitive damages are generally disallowed in arbitration, but may be available in some circumstances for repeat or flagrant violators. Additionally, in the federal sector, a prevailing employee may seek attorney fees under the Back Pay Act, 5 U.S. Code § 5596.
(a) Introduction and Overview.
Labor law governs discrimination, harassment and/or retaliation based on union related activities. Employment law governs other types of illegal discrimination. I stress “illegal,” because it is not enough that an employer treats one employee badly or different from other employees. Rather, the alleged discrimination must be prohibited by federal and/or state law.
Illegal employment discrimination generally includes that based on race; age; religion; color; national origin; ancestry; sex/gender; physical or mental handicap or serious medical condition. Additionally, in some states it may also include sexual orientation or gender identity. See, e.g., New Mexico Human Rights Act, NMSA 28-1-1, et seq.; and the Colorado Antidiscrimination Act, CRS 24-34-401, et seq. While sexual orientation and gender identity are not expressly written into Federal anti-discrimination statutes, jurisdictions are currently split on whether they are nonetheless included under “gender discrimination.”
Under anti-discrimination laws, an employer may not discriminate in the hiring, promotion, job assignment and/or wages, based on illegal criteria. Nor may an employer terminate or otherwise retaliate against an employee for filing a claim based on discrimination. However, the availability of protection against illegal discrimination varies widely from statute to statute depending on the number of employees. For relevant federal statutory language, see the following acts:
Employment discrimination can be the intentional disparate treatment of members of a protected class, or it can result from the “disparate impact” of facially non-discriminatory actions or policies on a protected class. Additionally, intentional discrimination itself may be framed in one of several ways.
(b) Intentional discrimination or “disparate treatment”.
Under this type of claim, a plaintiff alleges he or she was treated differently from other employment applicants or employees because of his or her race, age, religion, color, national origin, ancestry, sex/gender, physical or mental handicap or serious medical condition, sexual orientation or gender identity, or spousal affiliation.
In these kinds of cases, the two main proof issues are animus, or that the discrimination was intentional, and causation between the discrimination and any adverse employment action. Employer liability for the conduct of its agent may also be an issue.
Causation may be established by “temporal proximity” between acts evidencing discrimination and the adverse employment action, or other circumstantial evidence. Intent may be proven directly or through circumstantial evidence.
(c) Hostile workplace claims.
Because overt declarations of discriminatory intent are rare, the most common type of direct evidence is a pattern of remarks or conduct which is so subjectively and objectively offensive and persistent as to give rise to a “hostile workplace” or “hostile work environment” (“HWE”).
In HWE cases, ambiguous statements, stray remarks and isolated conduct are usually insufficient to create liability. Instead, analysis usually turns on the nature/severity, frequency, and duration of the conduct. However, it must be stressed that all laws related to harassment are underoing new shifts and tensions in today’s world of #metoo, #blacklivesmatter, and other identity-related movements.
In HWE of cases, the employer can raise an affirmative defense that it exercised reasonable care to prevent and correct harassment, and the employee failed to notify the employer of the misconduct, or to use the employer’s remedial procedures. Historically, employers have also been allowed to present evidence that the conduct would not have been “objectively offensive” in the particular work environment (such as on an oil rig, or other rugged, industrial work environment), or “subjectively offensive” to the particular employee who (such as an employee alleged to be accustomed to engaging in crude speech or behavior on the shop floor). However, as noted above, this is an uncertain area of law today that is subject to change depending on geography and jurisdiction, as well as the particular type of discrimination alleged.
(d) Quid pro quo harassment or “tangible employment action” claims.
The “quid pro quo” claim is a type of direct-evidence, intentional discrimination case that is unique to sexual harassment. As the name suggests, this occurs when an employer conditions some specific and tangible employment action, benefit or condition (such as a raise, scheduling, or the granting of leave) upon the receipt of sexual favors.
Employers are strictly liable for the actions of supervisors in these types of cases.
(e) “Prima facie” or circumstantial cases.
Where there is no direct evidence of intentional discrimination (such as in HWE versus quid pro quo claims), a plaintiff may present a prima facie case from which discrimination can be inferred. The elements for a prima facie discrimination case are that the claimant:
If a prima facie case is alleged, the burden will shift to the prospective employer or employer to demonstrate that it had other legitimate reasons for acting as it did. If the employer does demonstrate a legitimate reason, the burden will then shift back to the plaintiff to demonstrate that the reason given is “pretextual,” or that the principleor dominant purpose was to discriminate. The plaintiff always retains the ultimate burden to convince the trier-of-fact that an adverse employment action was discriminatorily motivated.
(f) Disparate Impact.
Disparate impact claims, unlike disparate treatment claims, are not premised on motive. Instead, motive is irrelevant and the focus of inquiry is on some facially neutral hiring device or employment practice that has a disproportionate impact on a group defined by race, color, religion, sex, national origin age and disability (although the latter two categories have different standards).
This is a rather controversial theory, and has several special difficulties. First, it applies only to statutory claims, not constitutional or §1981 claims. Second, it is difficult to establish since statistics alone have been held to be insufficient.
Methods for proving a disparate impact include the following:
(g) Relevant agencies.
Questions or complaints concerning illegal employment discrimination should be directed to the federal Equal Employment Opportunity Commission (EEOC) or a parallel State EEO agency. Oftentimes, if a matter is filed with either the EEOC or a related State EEO agency, the other agency will grant reciprocity to that filing date.
Typically, if a matter is filed with either the EEOC or a related State agency, the other agency will grant reciprocity to that filing date.
When the EEOC is unable to process claims in a sufficiently timely manner, or when it concludes there is insufficient evidence of violation, it may issue a “Right to Sue Letter.” This permits the claimant to proceed by filing a civil suit in court, and will deem him or her to have exhausted their administrative remedies before these agencies.
The purpose of the Family Medical Leave Act (FMLA), 29 USC §§ 2601 et seq., is to promote work/family balance by allowing employees to take reasonable unpaid leave for certain family and medical reasons, accommodating the legitimate interests of employers, and promoting equal employment opportunity for men and women.
Under the FMLA, eligible employees may take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member, or if the employee themselves has serious health condition.
FMLA eligibility rights are statutorily limited. To be eligible for FMLA benefits, the employee must have been employed by the instant employer for at least 12 months (consecutive or nonconsecutive), and worked at least 1,250 hours. Additionally, the employer must employ 50 or more employees within 75 miles of the worksite. The employee must also provide 30 day advance notice for foreseeable events, and the employer may require a doctor’s statement attesting to the need for leave.
If these criteria are met, the employee’s position, or a comparable one, must be maintained in his or her absence. The employee is also entitled to have his or her benefits maintained, but they must continue to pay their portion during the leave. If both spouses work for the same employer, they are not each entitled to take 12 weeks off for the same covered situation.
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If these criteria are met, the employee’s position, or a comparable one, must be maintained in his or her absence. The employee is also entitled to have his or her benefits maintained, but they must continue to pay their portion during the leave. There are a variety of other limitations, conditions, and special rules under the FMLA that are not addressed here. For more information on the FMLA, contact the US-DOL or click here.
The Federal-State Unemployment Insurance Program is a joint state/federal program implemented at the State level.
Unemployment insurance taxes, which are based on a percentage of the wages paid, are paid by almost all employers with three or more employees.
Typically, benefits are available in the following circumstances:
Mere unsatisfactory job performance or even an isolated violation of work rules will generally be insufficient grounds to deny unemployment benefits, but the exact legal standards vary by state.
For more information on the Unemployment Insurance programs see US-DOL Unemployment Insurance Fact Sheets and any relevant State agencies’ cites.
Workers compensation, in contrast, is not a joint program. Instead there is a federal statute and program for federal and postal employees, and other workers are covered under state law, which can vary significantly. Workers comp systems are generally “no fault systems,” which represent a trade off in which employees receive capped damages but are not required to establish employer liability for any accidental injury arising out of and occurring in the course of employment, and resulting in disability to a reasonable degree of medical certainty.
Wage and hour disputes may include such issues as: :
Under the Fair Labor Standards Act (FLSA), 29 USC §§ 201, et seq., the federal minimum wage is currently $7.25 an hour, effective July 24, 2009 but an increasing number of states and municipalities have enacted higher local minimum wages, which are popularly known as “living wage” rates. Where an employer is subject to multiple minimum wage rates, the higher one applies. There is currently a nationwide movement to advance the federal minimum wage to $15.00/hour (“Fight for $15”), but its ultimate fate is uncertain.
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Typically, certain categories of employers and/or employees are exempted from minimum and/ or overtime rates, or may be paid a subminimum wage. For example, there are generally special rules or exceptions for professionals, supervisors and management; tipped employees such as waiters and waitresses; children; and agricultural workers, to name a few. There are also often specials rules and/or exceptions for public safety personnel (i.e., police and fire fighters). For more information on minimum wage rates generally, see the U.S. Department of Labor.
Federal and State wage and hour laws also provide for a maximum number of hours after which overtime must be paid, and the rate of overtime. Under the federal Fair Labor Standards Act you are entitled to time and a half after working 40 hours a week. Some states provide for overtime for days longer than 8 hours.
Federal law does not mandate breaks or lunch periods, provided that breaks of less than thirty (30) minutes are not deducted from pay, and provided the employees are paid overtime as appropriate. Nor does federal law generally limit the total hours that may be worked, provided overtime is paid (there are obviously exceptions for certain hazardous industries).
For more information on wage and hour matters, including record keeping obligations and the collection of unpaid wages and/or vacation pay, see the Handy Reference Guide to the Fair Labor Standards Act
Additional issues may arise in the public sector. For instance, an employee may believe he was refused hire based on an improperly negative reference from a prior employer. Prior employers are allowed under the law to provide any non-confidential information in a reference, but the information must be true and may not be provided for the purpose of maliciously harming the ex-employee.
Or, an at-will employee may be concerned that she was disciplined or fired improperly, although not for reasons having to do with illegal discrimination. Many State courts recognize two exceptions to the general rule of at-will employment:
Implied contracts have been upheld “where the facts showed the employer either has made a direct or indirect reference that termination would only be for just cause or has established procedures for termination that include elements such as a probationary period, warnings for proscribed conduct, or procedures for employees to air grievance.” “Implied contracts” can sometimes be found to have arisen from an employee handbook, depending on state law and the parties’ degree of reliance on the handbook..
Another recurring issue is that of “constructive discharge.” Constructive discharge is not an independent tort, but rather a way of recasting an apparent resignation as termination. The issue can arise in the context of either implied contract claims or statutory discrimination claims. To state a claim for constructive discharge, an employee must allege facts sufficient to find that the employer made working conditions so objectively intolerable that a reasonable person would be compelled to resign. Examples of adverse employment actions found to rise to this level include humiliating demotions; extreme cuts in pay; transfers to positions with unbearable working conditions; overt pressures to resign and/or accept early retirement; and retaliatory measures such as discrimination, unreasonable criticism and involuntary transfers.
As seen in the foregoing sections, labor and employment are broad fields of law that can vary greatly depending on the issue, industry, sector, and/or number of employees involved. This overview is not exhaustive, and significant areas and issues are not reviewed herein.
Timely obtaining competent legal advice will often be critical to protect your rights and/or minimize legal liability. Once representation and counsel is obtained, Arbitrator Vaile encourages parties to explore alternatives to litigation in resolving their dispute.
Please contact us, together with your labor/employment counterpart, to discuss whether your dispute may be amenable to resolution with ADR, such as arbitration or mediation.
