Respondeat Superior: An employer is generally liable under the doctrine of respondeat superior for a negligent act committed by his employee within the scope of employment. The fact that a tort or crime is committed by an employee does not necessarily cause vicarious liability on the employer. It must also be shown that the employee was acting within the scope of his employment. The phrase scope of employment basically means doing the employer’s work at the time the tort occurs, such as making deliveries or sales calls at the time of the tort. However, the employer is not liable for actions of the employee while the employee is doing something for personal reasons such as shopping during lunch time. When an employee is acting on personal business, the scope of employment ends.
An employer can be liable for an employee’s tort according to the theory of negligent hiring or retention of an employee if the employer knew or should have known the employee posed an undue risk to others and harm is caused to a third party as a result of the employee’s actions.
If work is done by an independent contractor rather than by an employee, the owner is generally not liable for harm caused by the contractor to third persons or their property. Negligently hiring an incompetent independent contractor can also lead to liability. Suppose a company hires a collection agency who has a reputation for being abusive or violent. The principal (i.e., company) could be held liable for the abusive or violent acts of the agency.
Duration and Termination of Employment Contracts. In most instances, the employment contract will not state its expiration date. In such a case, the contract may be terminated at any time by either party. However, the contract may expressly state that it will last for a specified period of time such as a contract to work as a general manager for five years.
Ordinarily a contract of employment may be terminated in the same manner as any other contract. If it is to run for a definite period of time, the employer cannot terminate the contract at an earlier date without justification. If the employment contract does not have a definite duration, it is terminable at will. This is called employment at will. Under the employment at will doctrine, the employer has historically been allowed to terminate the contract at any time for any reason or for no reason. Some State Courts and some State Legislatures have changed this rule by limiting the power of the employer to discharge the employee without cause. For example, Court decisions have carved out exceptions to this doctrine when the discharge violates an established public policy, such as discharging an employee in retaliation for insisting that the employer comply with the State’s Food and Drug Act. Courts may sometimes construe an employer’s statements concerning continued employment as a part of the employment contract, and therefore require good cause for the discharge of an at-will employee. Also, written personnel policies used as guidelines for the employer’s supervisors have been interpreted as restricting the employer’s right to discharge at-will employees without just cause. Employee handbooks or personnel manuals have been construed as part of the employee’s contract. This is why all personnel manuals and employee handbooks should contain a disclaimer. A sample disclaimer would be: This employee handbook is not intended to create any contractual rights in favor of you or the company. The company reserves the right to change the terms of this employee handbook at any time.
Most state courts will recognize limited public policy exceptions to the employment-at-will doctrine. For example, there is a limited public policy exception where an employee can prove that his discharge was motivated by refusal to engage in illegal acts for his employer.
Most states recognize two public policy exceptions to the employee-at-will doctrine:
- One is the whistle-blower defense that protects employees against discharge for reporting illegal conduct or conduct that violates public policy;
- Another protects employees who refuse to participate in illegal conduct.
Antiretaliation statutes protect many employees of state and federal agencies. They generally prohibit the firing, demotion, reprimands, and pay cuts of employees who report the misconduct of their employees.
The Fair Labor Standards Act (FLSA) is a federal act that is sometimes referred to as the minimum wage law. It also deals with child labor, overtime pay requirements, and equal pay provisions. It covers:
- businesses engaged in interstate commerce;
- businesses engaged in production of goods to be shipped in interstate commerce; and
- businesses engaged in interstate shipping.
Coverage of the FLSA is very broad. Almost all businesses could be said to be involved in interstate commerce in some way. Exemptions to the Act are very specifically defined. The three most common are:
- Independent contractors (i.e., not an employee of the subject employer–your accountant for example);
- Executive, administrative, and professional people (white collar exemption). There is a minimum salary requirement in order to come within this exemption. Executives and administrators must also exercise some sort of discretion and judgment in their work. Professionals must be specifically trained for a profession like medicine, law, accounting, and engineering.
- Certain outside commissioned salesman are also exempt.
A corporate employer obviously can be liable under the Act, but individual officers can also be held liable. Anyone who actively participates in the running of the business can be liable. Payment of unpaid wages plus a penalty is the usual penalty for violation of the minimum wage or overtime provisions of the Act. However, fines of up to $10,000 and/or imprisonment for up to six months are possible for willful violations. A willful violation of the Act occurs when you know that you are clearly violating the Act but do it anyway.
Enforcement of the FLSA can result from an employee filing a complaint with the Wage and Hour Dept. of the Department of Labor or by the Dept. of Labor initiating its own investigation. Random audits are not uncommon, but audits generally result from a formal or informal complaint of an employee. Employers are prohibited by the FLSA from firing an employee for making a complaint or participating in a Dept. of Labor investigation.
On May 25, 2007, President Bush signed a spending bill that, among other things, amended the FLSA to increase the federal minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009.
Wages may be paid in cash or benefits such as meals or housing. Receipt of noncash benefits has to be voluntary by the employee, and only the actual value of the meals or housing can be credited as part of wages. Tips can be used to make up a certain percentage of a person’s wage, but the employer must be able to document that the employee has actually received the tip.
The FLSA requires that nonexempt employees be paid 1.5 times their regular rate of pay for time work in excess of 40 hours. Salaried employees also are entitled to overtime payment unless they come under one of the white collar exemptions. To compute overtime payment due to a salaried employee, you divide their regular wage (figured as a weekly wage) by the number of hours they normally work in a week and then multiply it by 1.5 to get the amount they would receive for hours worked in excess of 40.
The child labor provisions of the FLSA were created to keep children in school for at least a minimum number of years. Someone 18 or older is not covered by the Act. Children 16-17 may work but can only work in nonhazardous jobs. The number of hours they can work is not limited. Children 14-15 may only work in jobs that are nonhazardous and don’t involve manufacturing or mining. The hours they can work are also limited. Children under 14 generally may not work. There are limited exceptions to these rules.
The Equal Pay Act is an amendment to the FLSA and prohibits paying different wages to men and women who basically do the same jobs. Pay differences because of a seniority system or a merit pay system are acceptable.
The Occupational Safety and Health Act was passed to insure that employees have a safe place at which to work. The Occupational Safety and Health Administration, known as OSHA was passed to enforce this Act. All employers are covered by this Act. This Act requires employers to be familiar with the Act and to:
- Post a summary of employees’ rights under the Act;
- Require protective gear and equipment when necessary;
- Keep a record of injuries that occur on the job; and
- Keep a record of deaths that occur on the job and what caused them.
The responsibilities of OSHA include:
- Developing workplace safety regulations;
- Awarding variances from these regulations to employers in appropriate circumstances, e.g. a situation where the workplace was safe in spite of a technical violation; and
- Making inspections, which can be random inspections or can be of an industry that is being targeted such as the roofing and lumber industries. Most employers voluntarily allow such inspections, but if you refuse, then OSHA will have to get a search warrant.
You cannot lawfully retaliate against an employee who notifies OSHA of a violation or who cooperates in an investigation. Regarding penalties under the Act, the first step taken when OSHA discovers a violation is the issuance of a citation. Many employers settle with OSHA at this point. If there is no settlement, the matter is then heard by an administrative law judge (ALJ). The ALJ will make a recommendation to an agency known as the Occupational Safety and Health Review Commission. The OSHRC decides the issue and enters its ruling, which can be appealed to a U.S. Court of Appeals.
Most private retirement plans are regulated by the Employee Retirement Income Security Act of 1974, which is known as ERISA. ERISA applies to a pension plan of any employer who is engaged in interstate commerce or who affects interstate commerce. This is an extremely broad standard. ERISA applies to medical plans as well as retirement or deferred income plans. Employers must give employees an annual report of their plan which includes a financial statement and describes any loans made from the fund. ERISA does not require pension plans; it only regulates employers who offer them. Employees are entitled to receive an annual statement showing their total benefits in the plan as well as the amount that is vested, i.e., not forfeited if the employees quits or is terminated before retirement. Certain minimum vesting schedules are required by ERISA.
Workers’ Compensation Laws are laws passed by state legislatures that compensate employees for work-related injuries or illnesses. Any employee injured on the job within the scope of his employment is entitled to workers’ compensation benefits. This is true even if the employee was injured because of his own negligence or for failure to follow the instructions of his employer. Self inflicted injuries are not covered. Benefits include medical expenses, lost wages, and death benefits. Most employers have insurance to cover these benefits. If they don’t have insurance, they still have to pay benefits.
If a third party is responsible for the injury, such as the manufacturer of a defective machine, the employee is still entitled to workers’ compensation and may also recover from the manufacturer. However, any recovery would first have to reimburse the employer for benefits it had paid.
Each state has its own administrative agency that handles workers’ compensation issues such as whether or not an employee is entitled to compensation and the amount of compensation. As previously stated, the question of whose fault the injury is, is irrelevant. An employee can knowingly violate safety rules and still be compensated. Independent Contractors are not covered by workers’ compensation from the contracting party because the are not employees of the contracting party.
Initially, workers’ compensation only compensated accidental injuries on the job. The definition of accidental has expanded over the years to include such things as back problems brought about by heavy lifting, heart attacks and nervous breakdowns, as long as they are work-related. Job-related stress leading to some sort of temporary or permanent disability is compensable.
As stated above, workers’ compensation benefits include lost wages and medical expenses. Partial disability is also compensable. Some states have what is called scheduled injuries. Loss of a body part is a typical scheduled injury. For example, in one state, the disability for loss of a thumb may be 55% of the employee’s average monthly wage for 15 months. A person who is totally disabled is generally entitled to 2/3 of his average monthly salary for the period of the disability.
Death benefits are paid to the family of a deceased employee. The amount of the benefits is generally some percentage of the employee’s average monthly salary.
A major advantage that workers’ compensation statutes give to employers is that in most states, an injured worker is only entitled to receive workers’ compensation benefits and is not entitled to sue the employer for his injury even if the employer was negligent in some way.
All states with workers’ compensation systems require employers to be financially responsible for benefits under their systems. Employers can show financial responsibility by
- maintaining a private insurance policy;
- obtaining a policy through the state commission if the employer is uninsurable (like and assigned risk situation); or
- offering evidence of sufficient assets to cover potential claims (self insured).
One problem that has arisen in workers’ compensation systems is fraud. There is a great deal of incentive to commit fraud because of the benefits that are possible from workers’ compensation plans. For example, medical benefits in workers’ compensation are better than most medical insurance plans. Also, because nearly all disability payments are tax free, an employee can net close to 90 percent of what they previously received before their disability.
New types of work-related injuries and illnesses have also developed, like stress related health problems. Another new health problem is repetitive motion problems like carpal tunnel syndrome that can be more expensive to treat and correct than your typical on-the-job accident twenty years ago.
Justifiable Discharge. An employer is justified in discharging an employee because of the employee’s (1) nonperformance of duties, (2) misrepresentation or fraud in applying for employment, (3) refusing to follow directions, (4) disloyalty, (5) theft or other similar dishonesty, (6) possession or use of drugs or alcohol, (7) misconduct, or (8) incompetency.
Employers generally have the right to lay off employees because of economic conditions, such as lack of work. Employers have to be very careful, however, not to make layoffs based on age, for this would be a violation of ADEA.
DUTIES OF THE EMPLOYEE. The duties of an employee are determined primarily by the contract of employment with the employer. However, the law also implies certain obligations. Employees imply by accepting a job that they will exercise due care and ordinary diligence.
An employee may be given confidential trade secrets by the employer. In such a case, the employee must not disclose this knowledge to others. An employer may get an injunction against former employees who are competing with the former employer to prevent the former employee from using information regarding suppliers and customers that they obtained while in the employment of the employer if this information is of vital importance to the employer’s business. This type of relief will be denied if the information is not important or not secret. An employer can best protect himself by a noncompetition and nondisclosure agreement which is entered into at the time of hiring the employee. In the New York case of Silfen, Inc., v. Cream, Cream was an officer and employee of Leo Silfen, Inc. He was discharged and then went into business for himself by conducting a business similar to that of Silfen. He obtained lists of users of his products from mailing and commercial lists from sources unconnected with Silfen. Out of the persons he solicited from these lists, 47 were customers of Silfen. Silfen brought an action to enjoin Cream from soliciting his customers. Cream showed that Silfen had approximately 1,100 customers. The Court held in favor of Cream. The Court held that the names of the persons solicited by Cream were not information that Cream had taken from the records of Silfen, but were taken from lists prepared by third persons, and anyone could have obtained these lists. Therefore, there was no basis for treating these names as trade secrets.
In the absence of an agreement to the contrary, inventions of an employee belong to the employee even though he used time and property of the employer in discovering the invention, provided that the employee had not been employed for the express purpose of inventing the thing or process that he discovered. The best way for an employer to protect himself is by an agreement at the time of employment regarding who will own inventions of the employee. If the invention is discovered during working hours and with the employer’s materials and equipment, the employer has the right, called a shop right, to use the invention, without charge, in the running of the employer’s business. However, the shop right does not give the employer the right to make and sell the invention.
When an employee is employed to obtain certain results from experiments conducted in the course of employment, inventions discovered as a result of these experiments belong to the employer.
The Family and Medical Leave Act entitles employees of an employer with 50 or more employees to up to 12 weeks of unpaid leave during any 12 month period for the following reasons:
- birth or adoption of a child:
- to care for a spouse, child or parent with a serious health problem; or
- a serious health problem of the employee that makes the employee unable to do his or her job.
To be eligible for this leave, an employee must be employed by an employer for 12 months or more and have worked at least 1250 hours during the 12 months prior to the leave.
Employees and employers are required to pay Social Security taxes which provide employees with (1) retirement benefits: (2) disability benefits; (3) some life insurance benefits; and (4) Medicare. Also, the Supplemental Security Income Program provides additional payments for certain needy people in addition to the previous benefits.
The issue of employee privacy can arise in several situations. For example, employers may want to monitor telephone conversations between employees and customers in order to evaluate employee performance and customer service. Employers may want to monitor e-mail for what the employer considers as valid business reasons. Employers may want to do drug tests on their employees or search their lockers for illegal drugs.
The 4th and 14th amendment provides the constitutional basis for the right of privacy for public employees (e.g., federal, state, county and municipal). However, these amendments do not apply to employees in the private sector. Employee rights in the private sector are covered by states statutes, case law and collective bargaining agreements.
The Federal Wiretapping Act provides that it is unlawful to intercept oral or electronic communications. Both criminal and civil penalties are provided for by this Act. There are two exceptions:
- An employer can monitor his/her/its telephones in the ordinary course of business through the use of extension telephone; and
- An employer can monitor employee communications with the employee’s consent. Consent may be established by prior written notice to employees of the employer’s monitoring policy. Consent signed by the employee is preferable. Interception of a business call is within the ordinary course of business exception. Personal calls can be monitored only to the extent necessary to determine whether the call is a personal or business call. As soon as it is determined that the call is a personal call, the employer must quit listening.
Employers may want to monitor e-mail messages of employees for such reasons as evaluating the efficiency and effectiveness of the employees or for corporate security purposes such as the protection of trade secrets. The Electronic Communications Privacy Act (ECPA) amended the federal wiretap statute to make it apply to e-mail communications. However, the same two exceptions exist (i.e., ordinary course of business and consent).
In the case of public employees, the employer, generally, can search the office, desk, or file cabinets because the employer’s interests in supervision, efficiency and control of the workplace have been held to outweigh an employee’s privacy interests.
In the private sector, the question turns on whether or not the employer has created a reasonable expectation of privacy. For example, giving an employee a locker with the employee to furnish his own lock would cause the employee to believe that the locker would not be searched. However, if the employer provides the locks and the employee knows that the employer has a combination to all the locks no expectation of privacy would be created and the locker could be subject to search by the employer for legitimate reasons and the employee would have no grounds for an invasion of privacy suit. The safest thing for an employee to do is make it clear, by a written policy, what is subject to searches by the employer.
Drug testing of public employees carry both 4th (no unreasonable searches) and 5th (no self incrimination) amendment issues. The Federal Omnibus Transportation Employee Testing Act covers certain classes of employees in the airline, railroad and trucking industries. These employees are subject to random drug and alcohol testing.
Random testing of employees working in safety-sensitive positions in the private sector is permissible, as is the testing of private-sector employees on the basis of reasonable suspicion. This policy should be made clear to the employees at the time they are hired and written consent obtained when possible (or at least written acknowledgment that they receive notice of such a policy).
The Immigration and Naturalization Act and the Immigration Reform and Control Act of 1986 (IRCA) are the principal employer-related laws. IRCA sets forth criminal and civil penalties against employers who knowingly hire illegal aliens. These penalties range from $250.00 to $2,000.00 for each unauthorized alien. The penalty is increased to $2,000.00 to $5,000.00 for each alien for a second violation. If there is a pattern or practice of violation, the employer may be subject to criminal penalties, including a fine and imprisonment.
IRCA requires employers to verify that each new employee is authorized to work in the United States. The INS has designated Form I-9 as the official verification form to comply with IRCA. This form is called an Immigration Eligibility Verification Form. The employer has three days to complete the I-9s. Fines are between $100.00 and $1,000.00 and can be imposed on employers for each individual employee for which the employer fails to comply with the verification requirements of IRCA.
The Civil Rights Acts of 1866 was the first federal legislation affecting this area. It prohibits discrimination in the making of contracts on the basis of race. It has not been very effective for two reasons. One is that the plaintiff has to prove intentional discrimination, which can be a tough thing to prove. The other reason is that there is no government involvement. The plaintiff has to hire his own attorney.
The main civil rights act dealing with employment discrimination is Title VII of the Civil Rights Act of 1964. It prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It was amended in 1972 by the Equal Employment Opportunity Act. This Act created the Equal Employment Opportunity Commission which is commonly referred to as the EEOC. If you are the victim of employment discrimination, you can file a charge with the EEOC if you employer or prospective employer has 15 or more employees. The EEOC will then investigate the charge and can file suit on behalf of the employee if it believes that the charge has merit.
Title VII was further amended in 1975 by the Pregnancy Discrimination Act which prohibited discrimination on the basis of pregnancy or childbirth. Basically, an employer has to treat pregnancy as an illness or temporary disability and can not treat female employees who are pregnant any differently than a male employee who had a back problem that required him to miss work for a few weeks.
The Age Discrimination Act of 1967 expanded Title VII to include age. An employer with 20 or more employees can not discriminate against employees or prospective employees who are over the age of 40.
The Rehabilitation Act of 1973 prohibits business who contract with the federal government from discriminating against an employee or prospective employees on the basis of a handicap or disability. This Act also includes entities that get federal funds like colleges whose students get federal loans.
Protection for handicapped employees or prospective employees was broadened by the American with Disabilities Act of 1990, which prohibits discrimination by employers with 15 or more employees.
As previously stated, Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, national origin, sex or pregnancy. A few entities are exempt. Religious entities, like churches, can discriminate on the basis of religion when hiring for a position like pastor. Employment practices covered include areas such as hiring, compensation, training, promotion, demotion, transfer, fringe benefits, rules, working conditions, and dismissals.
Disparate treatment on the basis of race, sex, etc. is prohibited under Title VII. Disparate treatment is treating one employee more favorably than another. In order to prove disparate treatment in hiring, a prospective employee must prove:
- that the plaintiff belonged to a minority;
- the plaintiff applied for the job and was qualified for it;
- the plaintiff was rejected in spite of his qualifications; and
- the job remained open or a nonminority was hired
Discriminatory discharge must be proven with the following elements:the plaintiff belonged to a minority
- he was adequately performing his job;
- he was discharged; and
- the job was filled by a nonminority.
Proof of these elements established a prima facie case and it shifts the burden of proof to the employee who must prove a nondiscriminatory reason for refusing to hire the plaintiff or discharging him.
Disparate impact on a protected class also can violate Title VII. This involves discrimination that is not intentional. An example would be when a hiring rule or procedure causes a minority to be discriminated against even though there is no intention to discriminate. Let’s say that a city has a rule that no applicant for police officer will be hired unless the applicant is at least 5 feet 10 inches tall. This will have a disparate impact on women, even though the rule is sexually neutral.
Statistical evidence can be used in disparate impact cases. If 38% of the work force in a community is black, but only 6% of an employer’s work force is black, this could be evidence of some practice of the employer having a disparate impact on African-Americans. It could be work of mouth recruiting for example. If most of your work force is white, the people they tell about job openings will probably mostly be white. Some other way of recruiting new employees may be necessary.
Regarding sex discrimination, a plaintiff must prove the same elements that were previously discussed. Job advertisements are illegal if they carry a sexual preference unless it is a bona fide job qualification, like an advertisement for an actress to play a historical woman. You can’t advertise for a waitress. You must advertise for a waitress/waiter.
Sexual harassment is a type of sex discrimination which is a violation of Title VII. Employers need to have written policies forbidding sexual harassment. Offenses that would constitute sexual harassment include:
- Demands for sexual favors in exchange for job benefits (quid pro quo);
- A job “environment” that involved sexual suggestions;
- Hostile conduct toward an employee who refused to provide sexual favors;
- Verbal or physical suggestions with a sexual overtone.
A supervisor, as well as the employer, can be held liable for failing to take action regarding complaints of sexual harassment by one employee toward another.
Another area of sexual discrimination involves the fact that women live longer than men. This is a statistical fact. However, women cannot be required to pay more to pension plans even though the plan might be required to pay to them longer than men.
The Pregnancy Discrimination Act of 1978 amended Title VII. Discrimination against a woman in connection with her job because she is pregnant is a violation of Title VII. Basically, an employer has to treat pregnancy just like it treats any other short term disability.
- You can’t refuse to allow a female employee to return to work after delivery if she is physically able.
- You can’t demote a female employee upon her return from pregnancy leave.
- You can’t refuse to hire or promote an employee because of her pregnancy.
- Pregnancy must be covered by group medical insurance.
Discrimination on the basis of religion is allowed when a religious organization is hiring people for jobs where religious beliefs are relevant, such as a church hiring a pastor. Employers must also make reasonable accommodation for the religious beliefs of an employee, but not if the accommodation results in a significant hardship to the employer or significantly burdens other employees.
Title VII was enacted to prevent discrimination against the minorities in the workforce. However, an unanticipated problem arose after several years. Does Title VII’s protection cover all races, including members of the white race (e.g., reverse discrimination)? In 1976, the Supreme Court held that it does. But what about affirmative action programs?
Affirmative action programs are neither required nor prohibited by Title VII. Courts have recognized it as a legitimate tool to put all races and sexes on an equal footing after years of discrimination. However, employers cannot set quotas. Goals, however, are acceptable, like hiring a certain number of minorities by a certain date.
Who is required to have affirmative action programs?
- Employers who have been subject to a court order or consent decree regarding past discrimination;
- State, county and municipal agencies that receive federal funds;
- Colleges and universities who receive federal funds;
- Employers who contract with the federal government. (The contracts must exceed a certain dollar before considered.)
Steps to establish an affirmative action program:
- Adopt a basic equal opportunity statement. This should be a statement that is posted on the Company’s bulletin board and put in any personnel handbook. It should basically state that decisions on recruiting, hiring, training, and promotion will be made without regard to race, color, religion, sex, national origin, veteran status, or disability.
- Appoint an affirmative action officer. This can be a current employee, such as the HR director, or a new employee.
- Conduct an internal audit to see in which jobs women and minorities are under represented.
- Establish overall goals and even goals for certain areas.
Affirmative action programs are currently under attack as constituting reverse discrimination. It is still unclear how the courts are going to deal with this issue. In the 1995 case of Adarand Constructors v. Pena, the U.S. Supreme Court was faced with the issue of affirmative action programs in a case brought by a contractor that challenged the federal government’s program of granting government contracts to minority-owned businesses. The court remanded the case to the trial court saying that such programs must withstand strict scrutiny? What is strict scrutiny? Basically, in this type of case, the government must show a compelling government interest in favoring minorities. But what is this? Also, what must private employers demonstrate to show that their plan withstands strict scrutiny? These are issues that must be fleshed out by future court decisions.
Tests used in hiring decisions or in some other employment related decision must be valid. That is, the tests must be related to successful job performance and not have the effect of eliminating protected minorities from job consideration. Tests of physical fitness and marksmanship for police officers clearly test areas that are related to their job. However, a physical fitness test that few women could pass would not be valid.
For many years, employee misconduct was an absolute defense to discrimination. If an employee violated company rules, then a discrimination charge would fail. This defense was so broad that even evidence the employer acquired after termination could be used as a defense. However, this defense was limited by McKennon v. Nashville Banner Publishing Company.