EMPLOYMENT LAW
Occupation is a powerful influence in people’s lives. If a person works for 40 hours a week, this constitutes about 24% of his or her time. However, if 7 hours of sleep per night are factored in, this work schedule becomes about 34% of that person’s waking hours. In addition, many people are increasingly taking on second jobs, and this further adds to how much time is spent at work. Occupation is also the primary means to accumulate wealth. For many who live paycheck to paycheck, losing their job could mean the difference between a comfortable lifestyle and homelessness. For these reasons, employment law is an important and sensitive area in the legal profession.
Employment law is a broad area of practice. Many different factors add to its complexity. There is a large body of federal and state statutory law that regulates employers and employees. In addition, employment contracts, employee handbooks, and collective bargaining agreements often apply. There are also differences between public and private employment, and worker’s safety and injuries are a constant source of litigation. This wiki will analyze four important considerations in employment law: 1) employment discrimination, 2) government employment, 3) workers’ safety, and 4) workers’ compensation.
Government Employment
An important issue arises when the government is the employer. For better or worse, our governments have grown tremendously in the last hundred years, and there are a myriad of legal jobs in the public sector. In addition, the private employment lawyer will inevitably encounter a case that concerns public employees. One main difference between the public and private sectors is this: government, unlike private business, is subject to the federal constitution. Other examples of constitutional issues include freedom of speech and due process. There are also differences in collective bargaining when the employer is the government, because there are additional public policy considerations when striking workers are teachers, police, or firemen.
Books
Joseph E. Slater, Public Workers, (Cornell University 2004).
This book can be found in the law library under the call number HD8005.2.U5 S58. It is useful because it presents a history of collective bargaining in the public sector. It is divided into six chapters: 1) “The Boston Police Strike of 1919;” 2) “Yellow-Dog Contracts and the Seattle Teachers, 1928-1931;” 3) Public Sector Labor Law before Legalized Collective Bargaining;” 4) “Ground-Floor Politics and the BSEIU in the 1930s;” 5) “The New York City TWU in the early 1940s;” and 6) Wisconsin’s Public Sector Labor Laws of 1959 and 1962.”
The author notes that while union presence in the private sector has declined from the 1950’s to the 1990’s, union membership in the public sector has increased quite a bit during that time period. When this book was written, about 40 percent of all union members were public employees. Slater believes that public sector unions have been ignored by both labor historians and historians in general, and that scholars do not believe that public unions and workers are “real” unions and workers. Instead of addressing public sector unions comprehensively, this book focuses on specific events and unions. Public employees had fewer legal rights to strike, organize, and bargain.
Yong S. Lee, A Reasonable Public Servant: Constitutional Foundations of Administrative Conduct in the United States (M. E. Sharp 2005).
This book attempts to outline a great deal of the law applicable to a public servant. The author of the forward notes that courts have recently scrutinized agencies more strictly, and she notes that ignorance of the law is no excuse. It is divided into three parts: 1) Constitutional Foundations of Public Service, 2) Constitutional Rights of a Public Servant, and 3) Civil Rights of a Public Servant. Out of all of these sources that I have reviewed, this one has the best chance of being readable. I actually enjoyed reading the introduction: something I’ve never enjoyed, even in a novel. I am beyond words at this anomaly.
Law Journal Articles
Katherine J. Fitzpatrick, A Teacher’s Right to Strike: Arbitration’s Quid Pro Quo, 36 J. L. Educ. 131 (2007).
This is a law journal article that assesses the arguments for and against granting teachers the right to strike. At this time many states have specifically prohibited teachers’ strikes. In addition, public employees are not granted this right from the common law. However, teacher’s unions occasionally threaten to strike anyway, in order to gain bargaining power on an important issue. Although most public employees in the country are not allowed to strike legally, this issue has been debated since the 1980’s. Lawyer’s working for public schools may have to deal with this issue to a greater extent in the future, if this debate matures.
Ralph D. Mawdsley, J.D., Ph.D. & Allan Osborne, Ed.D., The Supreme Court Provides New Direction for Employee Free Speech in Garceeti sic v. Ceballos, 214 Ed. Law Rep. 457 (2007).
This article deals with the recent United States Supreme Court case of Garcetti v. Ceballos. In that case, a public employee was held not to have a first amendment right to free speech. The public employee worked as a prosecutor, and because of perceived ethical concerns, he testified on behalf of defense counsel. After allegedly being retaliated against by his employer, the public employee brought a § 1983 lawsuit. The Court recognized that a public employee has some 1st amendment rights when speaking about matters of public concern. However, the Court ruled that the government’s interest in performing its duties was stronger in this context. One determinative factor was that Garcetti was acting as a government employee when he testified for defense counsel. This article does a good job of outlining the case, and it also discusses the ramifications to educational institutions.
Brian J. Moline, Regional Focus: Ethical Dilemmas for the Kansas Government Lawyer, 5 Kan. J. L. & Pub. Pol’y 105 (1995).
This article focuses on government lawyers in Kansas. The author notes that public lawyers “have an additional obligation to protect and advance the public interest.” As employees of the state, public lawyers are subject to additional statutes concerning ethics. The article highlights some important Model Rules of Professional Conduct and analyzes them with reference to specific Kansas statutes and the general concept of working for the public interest. The article outlines the following concerns for a public lawyer in Kansas: conflicts of interest that can arise from receiving gifts, the obligation not to exploit a public office to advantage a private client, confidentiality, impartiality, expediting litigation, and advocacy.
Workers' Compensation
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Workers' compensation lawyers must explore the constantly evolving area of employee's rights from all perspectives. What if the employee client is an illegal alien? What are the employer client's options if it failed to purchase insurance? How do you cross-examine medical experts? Workers' compensation is highly political and emotional. Lobbyists such as the AFL-CIO brilliantly keep the politics high in order to keep emotions low. Emotions can be high because our country frowns upon the unemployed. This section ranges from medical and psychological resources to the complementary state and federal workers' compensation laws. All are equally important. Furthermore, the sources listed below aid the workers' compensation lawyer in litigating intelligently. That is, this bibliography combines the politics, the emotions, the medical science, and the legalism required to be a competent workers' compensation lawyer.
Books
McFarren, Todd and Glen J. Grossman, eds. Workplace Injury Litigation. Tuscon, AZ: Lawyers & Judges Publishing Company, Inc., 2004.
Todd McFarren and Glen Grossman are lawyers who specialize in workers compensation laws. Therefore, lawyers out there who handle and litigate workers compensation claims must consult this practical guide to the practice and procedure of the workers compensation world. But there’s more! This text analyzes cases based on types of injuries, from work-related heart attacks to psychiatric injury. The text also provides procedural guidance into cross-examination techniques and how to depose medical doctors. A greater concern is the bankrupt and uninsured employer – what do you do when facing that scenario?! This text holds your hand throughout that employer’s bankruptcy proceedings when representing both injured workers and illegally uninsured employers. Finally, this text explores the greatest fear of all practicing lawyers: ethical and administrative issues in the workers compensation context. Lawyers cannot be too informed, and this text can only take you a step in the right direction.
Law Review
Moran, William C., ed. Workers’ Compensation Law Review. Vol. 26. Buffalo, NY: William S. Hein & Co., Inc., 2006.
This volume is the most recently published. In addition to discussing general matters,this volume focuses on new developments in workers’ compensation as well as recent medical considerations. Such new developments include illegal aliens’ entitlement to workers’ compensation and the interaction between the ADA, the FMLA, and workers’ compensation laws. If the researcher is in a hurry, this law review attempts user-friendliness by listing each published article and their respective summaries immediately after the table of contents. Use of this resource by workers’ compensation attorneys is highly encouraged in order to stay up-to-date on current issues in workers’ compensation law.
Internet Resources
AFL-CIO, America’s Union Movement on Workers’ Compensation, at http://www.aflcio.org/issues/safety/wc/.
While the AFL-CIO lobbies for laws protecting workers, this site can be helpful for lawyers nonetheless. Click on Workers’ Compensation Notes to access its bimonthly newsletter or scroll down to the many other current events within workers’ compensation reform. This site can be ultra-political, but could pave a well-informed litigation path for the employee client. Lawyers can research both state and federal workers’ compensation laws and to what degree they might be changing.
Cornell Law School Legal Information Institute,
at http://www.law.cornell.edu/wex/index.php/Workers_compensation.
Constructed by Wex law dictionary and encyclopedia, this website gives a brief overview of the workers’ compensation concept followed by key federal and state statutes of which all workers’ compensation lawyers must be aware. Along the right margin, Wex lists, in addition to federal statutes and regulations, recent federal judicial decisions. In addition, Wex cites applicable Constitutional provisions, state statutes and judicial decisions, and internet sources. Just click the links.
The National Workers’ Compensation Website, at http://www.workerscompensation.com/.
When browsing for workers’ compensation websites, one would most logically begin by typing this URL. This website is designed for employers, employees, medical providers, and insurers to use its research center or find a workers’ compensation lawyer. Like pictures? The homepage displays the 50 states which are actually links to each states’ workers’ compensation rules, statutes and relevant forms. For lawyers, this site contains a news, forums, and events tab which continually updates current workers’ compensation issues.
Employment Discrimination
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Employment discrimination cases are the second largest case load in every federal circuit court in the United States. Employment discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, marital status, pregnancy, child-birth, use of medical leave, sexual preference (orientation) and age (over 40) by employers. Discriminatory practices include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment. The main body of employment discrimination laws is composed of federal and state statutes. The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer. Discrimination in employment is not a new concept, however as time goes on we are seeing new forms of the old practice. Every day new decisions are being handed down on a wide range of employment discrimination cases. A business law attorney must stay informed of new developments so that they are capable of providing the best advice possible to their business clients.
Websites
Labor and Employment Law Resource on the Internet available at: http://www.llrx.com/features/laborlaw.htm
This is an excellent web site for finding employment law resources on the Internet and is a gateway resource for a researcher in finding multiple sources on the subject of employment discrimination. This site contains a survey of labor related sources in FindLaw, Hieros Gamos, Cornell's Legal Information Institute, labor related government and non-government Web sites. This resource covers free Internet resources and therefore would be particularly beneficial for a business law pratitioner who does not have the funds to subscribe to the fee-based resources. This site is maintained by Alyssa Rosen who serves as a Reference librarian and has received a law degree from New York University School of Law.
Nolo's Advice on Employment Law available at: http://www.nolo.com
This Web site provides free information and advice on an assortment of legal topics. It is particularly helpful for a researcher wanting to get information on business law as the site has a section dedicated to business and human resources. Within the business and human resources section is a subsection devoted to employment law. Information found in this subsection is geared to individuals who are not as informed as an employment lawyer typically is who specializes with in the field. Specific to employment discrimination, the Web site provides numerous articles on such areas as race discrimination, religious discrimination, gender discrimination, sexual orientation discrimination and so on. Additionally, the site provides advice on how to handle discrimination complaints.
Labor and Employment Law Library available at: http://laborandemploymentlaw.bna.com/lelw/
This online library provides extensive coverage of employment law, with features designed to speed research and help a practitioner find the best information for his or her needs. The online law library is updated monthly and contains practice resources and primary materials covering national and state labor and employment law topics. Once at this site, a researcher is able to customize the site with his or her choice of links to the Labor and Employmnet Law Library's collections. A link that would be of particular significance to an employment discrimination attorney is the Practice Tools link. This link includes model employment policies, along with legal pointers, for creating or revising clients' employee handbooks and policy statements, as well as a collection of checklists, model letters, memos, and forms that employment attorneys can adapt for use in their practices. Additionally, a researcher can sign up for daily E-mail highlights from the Daily Labor Report.
Newsletters
Fair Measures, Inc. Newsletter available for subscription at: http://www.fairmeasures.com/ask/enews/default.asp
This free newsletter focuses on employment law and is published monthly by the lawyers at Fair Measures. Fair Measures specializes in training executives and managers in management practices and in training all employees to create fair and respectful workplace. This would be a great reference for a practitioner to use to advise businesses and other employers because it provides specialized training in management practices that prevent costly lawsuits, including employment discrimination claims. Specifically, a business law pratitioner can compare how other attorneys have handled their employment discrimination cases to evaluate his or her own potential cases. This newsletter can also be received through email. I found by this resource by surfing the Washlaw legal newsletters section. Once there, I saw that its description included highlights on changes in employment law then went to the Web site to learn more.
Find Law Labor and Employment Law Newsletter available for subscription at: http://newsletters.findlaw.com/nl/
Find Law issues a free newsletter for registered FindLaw users. A registered user would be able to have access to daily opinion summaries regarding employment and labor law. Offerings include recent case law, message boards, legal news and topical web guides. A business law researcher has the ability to create a customized page tailored to his or her specific information and research needs. This would be an unique newsletter for a business law researcher to subscribe to because not all newsletters offer the researcher the capability to pick and choose what is to be included within the newsletter.
Looseleaf Services
West, Manual on Employment Discrimination and Civil Rights Actions in the Federal Courts (2nd ed. 2007).
The author of this loose leaf is Charles R. Richey and it is published by West, a Thompson Company. It is a semi-annual supplement and 2 volumes. 1994-date. The author is a distinguished federal district court judge and provides thorough analysis of various topics. This would be a helpful and ideal manual to have around as an employment discrimination attorney due to the fact that most discrimination cases that arise involve violations of the Civil Rights Act. Additionally, the fact that this is written by a judge provides an additional perspective and might make this manual more appealing to a practitioner than others that are out there.
West, Employment Discrimination Coordinator (1993-date. ) 8 vols.
This thorough 8 volume set provides discussion and analysis of federal and state employment discrimination in both public and private employment. This resource is kept current with monthly updates and a bi-weekly newsletter. Included in this Coordinator is a state-by-state analysis of unjust dismissal issues, areas with significant differences between state and federal law, the newest legislation and latest changes in federal and state regulations, all underlying rules on employment discrimination, and complete citations to controlling authorities. The state-by-state analysis is an unique feature not found in all resources and allows a business law researcher to track a question across state lines. Originally written by a team of top employment and discrimination specialists in Washington, D.C.
Practitioner's Guides
CCH, EEOC Compliance Manual (2007).
This practitioner's guide features the full text of the EEOC's Manual of current guidelines and directives for bringing and settling job discrimination lawsuits against employers. The Manual interprets the law for all forms of discrimination—sexual harassment, age discrimination, and more—while explaining unlawful practices. Demonstrations on how to formulate conciliation agreements and offer appropriate remedies, instructions for accepting, investigating and processing discrimination charges, and cross references to relevant case cites are also featured. This guide is in the form of one loose-leaf volumne and is updated periodically. Limited parts of this guide are available for free on the EEOC's Web site.
Worker's Safety
Workers’ safety is an essential area within the general topic of business law. In order for any business to operate effectively, it must inevitably involve the services of individuals. Practitioners of business should therefore be very concerned with preventing needless injuries and deaths to the workers engaged in their enterprise. Moreover, many businesses are wise to consider worker safety to be a management function, intertwined with improving the quality of the business product, and the efficiency with which it is conducted. The United States government, as well as most governments around the world, requires people to be protected from hazards in the workplace. Codified under the Occupational Safety and Health Act, commonly known as OSHA, every employer in the United States is obligated by law to provide a safe workplace. Nonetheless, even faced with this federal act, for many employers, the responsibility to protect human life is not as important as the productivity of their workers, or the profit they make. For these reasons, and others like them, a myriad of law suits and legal issues arise in this area of the law.
Websites
Occupational Safety & Health Administration Homepage at www.osha.gov
The U.S. Department of Labor manages this extraordinary website that covers the all-encompassing Occupational Safety and Health Act. As mentioned, every workplace in America is covered by this act. Granted, the provisions are especially pertinent to a construction worker or other manual labor employees, but the law applies just the same to a computer programmer, or a law librarian. Included in the website is a full text version of the Act itself, along with a search engine to help researchers locate any topic within the law. The website even contains recent news related to the Act so one can keep up with the current developments taking place. Going to osha.gov is perhaps the first place all researchers should go in doing online research about workers safety.
Centers for Disease Control and Prevention at www.cdc.gov
The Department of Human Health and Services manages this website that is helpful in providing statistics and other related information to the area of workers safety. For instance, the site mentions that each year there are nearly 6,000 fatal workplace accidents, and 4.7 million non-fatal injuries. CDC conducts research and provides products and services to aid in the assistance in preventing these accidents and others like them. The web-site has a helpful search engine with which one can focus their area of interest. Also, this internet resource is a good place to find related articles. One of the services included is the National Institute for Occupational Safety and Health (NIOSH) which provides up to date statistical information, as well as other helpful resources.
Books
James A. Gross, ed., Workers’ Rights as Human Rights ILR Press 2003.
Mr. Gross’ work makes a strong moral argument in this well-written addition to the literature of workers’ safety. The work is composed by a number of different authors but a strong argument contained within is that the gap between ideals we have in society do not measure up to the actual practice we see day to day in this area. Included in the book is a well laid-out discussion of the role of domestic law and how solidarity can help bring about a much needed change in this area of the law. Workers’ Rights as Human Rights would be an excellent place to start to get someone excited about researching worker safety law, as it posits a very strong moral and heart-felt position in promoting the cause. One of the unique things about this book is that it is authored by several different scholars, and gives you perspective from a number of different viewpoints.
Mark A. Friend & James P. Kohn, Fundamentals of Occupational Safety and Health, ABS Consulting, 2003.
Just as the title suggests, this book provides an up-to-date overview of this area of the law and the fundamental issues that many of today’s professionals face. This book is the perfect place to begin research because it provides the foundational-level concepts in an easy to read, yet comprehensive way. Included within is an examination of the major changes made to OSHA, and what industries must do to comply. The third edition of the book even has a new chapter that covers the emerging issue of terrorism as it relates to workers’ safety. Fundamentals of Occupational Safety and Health is perhaps the first place researchers should look to get an initial grasp of the subject.
Law Journal Articles
Sidney A. Shapiro, The Necessity of OSHA, 8-SPG Kan. J.L. & Pub. Pol’y 22 (1999).
This article examines the argument that is frequently made that OSHA is unnecessary and can be abolished in favor of placing economic incentives in the workplace to encourage worker safety. The article takes the position that despite the incentives, OSHA is still a necessary piece of legislation by explaining the limited extent to which employees are compensated for dangerous work because they are paid higher wages or workers’ compensation. This article is useful because this argument comes up again and again. Reading this will better educate researchers on one of the most important issues with this area of the law.
Thank you for taking the time to read our wiki. We have enjoyed putting it together, and hopefully it will provide some guidance to students, lawyers, and legal scholars. Employment law is a broad area, and these resources do not provide an exclusive research list. However, they should provide a starting point in your research. Although these topics are vast, they not always mutually exclusive, and in certain fact patterns they may overlap. One must always keep an open mind when dealing with employment law, addressing each case from every possible angle. As a final point, nothing in this wiki should be construed as legal advice. If the reader is seeking legal advice, then he or she should consult a licensed lawyer.
Comments (4)
Anonymous said
at 2:04 pm on Mar 25, 2007
Hello, this is Lane. I went ahead and created a bit of an intro and added some things for my section. The last four paragraphs of the intro are borrowed from each group member's individual intro. It occurred to me after doing this that each of these last four paragraphs might better serve as short intros to each individual section. I am open to suggestion on how they should be used. Hope everyone had a good spring break, and see you Friday!
julie alam said
at 10:45 am on Mar 28, 2007
the intro looks good! we can ask Andrew in class which format he'd prefer as far as having individual intros for each section. Also, I'll be adding my annotations and some images tomorrow evening in case you were wondering.
julie alam said
at 10:50 am on Mar 28, 2007
hey, i added the boxes, is everyone okay with that? i just thought it made it look better but i can take them out if someone doesn't like them.
julie alam said
at 4:01 pm on Apr 4, 2007
can someome tell Chris to post his annotations, this is due tonight, thanks
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