Walden University Unit 5 Employee Relations Discussion Should employers offer employees the choice between resigning or being terminated? Under what circum

Walden University Unit 5 Employee Relations Discussion Should employers offer employees the choice between
resigning or being terminated? Under what circumstances? chapter
Overview of Employment Law
The purpose of this first chapter is to present a big picture of the body of law that
we will apply to particular human resource practices throughout this book. This
L overview of employment laws, the rights they confer on emchapter contains an
ployees, and the processes
involved in enforcing these laws. Special attention is
given to the use of E
alternatives to litigation to resolve employment disputes.
Heard at theT Staff Meeting
Congratulations on your new job as human resources manager! You pour a cup of coffee
, to hear the following reports from staff members:
and settle into your seat
“We’ve lined up some interns from a local college to take the place of vacationing staff
members this summer.
T We won’t pay the interns, of course, but hopefully they will be selfstarters who can make a real contribution.”
“In the interest of security, we now have a firm that checks the backgrounds of our job
candidates. Anyone
R with an arrest or conviction is immediately dropped from consideration for employment.”
“A number of our employees are in the Army Reserves. One of them has been deployed
E and has missed more than two years of work. She will be returning
to Afghanistan twice
to the United States
N soon and has indicated that she wants her job back. Her supervisor
believes that since her job skills are now out of date and she might be deployed again at any
C not to reinstate her.”
time, it would be best
“With health insurance
being so expensive these days, we’re requiring all of our appliE
cants to complete lengthy medical histories, including whether certain diseases run in their
You get up to get 1
another—large—cup of coffee and feel fortunate that you were paying
attention during that8employment law class you took.
What legal issues emerged during this staff meeting? What should this company be do5 comply with the law? Although you might not encounter this many
ing differently to better
legal problems in one
9 sitting, employment law pervades virtually every aspect of human
resource practice, and managers regularly confront employment law questions.
9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Part 1: Introduction to Employment Law
U.S. Employment Law Is a Fragmented
Work in Progress
“Just tell me what the law is, and I’ll follow it.” Were matters only that simple! No single set
of employment laws covers all workers in the United States. Instead, the employment law
system is a patchwork of federal, state, and local laws. Whether and how laws apply also
depend on such things as whether the employees work for the government or in the private
sector, whether they have union representation, and the size of their employer. Our principal focus will be on federal laws because these reach most widely across U.S. workplaces
and often serve as models for state and local laws. However, we will also mention significant variations in the employment laws of different states.
There is another problem with the idea of just learning the legal rules and adhering to
them. Employment law is dynamic. New law is created and old law is reinterpreted conCworkplace practices pose new legal questions. At any point
tinuously. Further, changing
in time, there are “well-settled”
A legal questions on which there is consensus, other matters
that are only partially settled (perhaps because only a few cases have arisen or because
L decisions), and still other questions that have yet to be concourts have issued conflicting
sidered by the courts and other
V legal decision makers. Attaining a solid grasp of employment law principles will allow you to make informed judgments in most situations. You
must be prepared to tolerateE
some ambiguity and keep learning, however, as the law of the
workplace continues to develop.
Sources of Employment
What comes to mind when you think of the law? Judges making decisions in court cases?
Congress legislating? The Constitution? All of these are parts of the law in general and
T Legal rules governing the workplace are found in the U.S.
­employment law in particular.
Constitution and state constitutions,
statutes enacted by legislatures, executive orders
­issued by presidents and governors, regulations created by administrative agencies, and
Rlaw. All of these pieces of law are regularly interpreted and
­judicially authored common
­expanded on by the courtsR
as they are presented with specific legal disputes (cases) to
­decide. Distinguishing between these basic sources of law is useful because some forms of
E others, apply to particular groups of employees, or provide
law are more authoritative than
for different enforcement mechanisms
and remedies.
Constitutions are the most E
basic source of law. Constitutions address the r­ elationships
­ etween different levels of government (e.g., states and the federal government) and
­b etween governments and their citizens. A legal claim based on a constitution must
1 someone’s constitutional rights by the government (in legal
­generally assert a violation of
­parlance, the element of “state
8 action” must be present). In practical terms, this means that
usually only employees of government agencies—and not employees of private corpora5
tions—can look to the U.S. Constitution
or state constitutions for protection in the workplace. Constitutional protections
to government employees include speech rights,
freedom of religion, protection from unreasonable search and seizure, equal protection
T rights.
­under the law, and due process
In our system of government, voters elect representatives to legislative bodies such as the
U.S. Congress. These bodies enact laws, or statutes, many of which affect the workplace.
Among the many important statutes with implications for human resource practice are
9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 1: Overview of Employment Law
Title VII of the Civil Rights Act, the National Labor Relations Act, the Equal Pay Act,
the Americans with Disabilities Act, the Family and Medical Leave Act, and the Employee
Retirement Income Security Act.
Executive Orders
The executive branch of government has the power to issue executive orders that affect the
employment practices of government agencies and companies that have contracts to provide goods and services to the government. Executive orders function much like statutes,
although they reach fewer workplaces and can be overridden by the legislative branch. One
important example of an executive order affecting employment is Executive Order (E.O.)
11246, which establishes affirmative action requirements for companies that do business
with the federal government.
A a statute, it often creates an agency, or authorizes an existing one, to
When Congress enacts
administer and enforce
L that law. Legislators do not have the expertise (and sometimes do
not have the political will) to fill in all the details necessary to put statutes into practice. For
example, Congress mandated in the Occupational Safety and Health Act that employers
E but largely left it to the Occupational Safety and Health Adminprovide safe workplaces
istration (OSHA) to give content to that broad principle by promulgating safety standards
governing particular workplace hazards. Formal regulations are put in place only after an
elaborate set of requirements
for public comment and review has been followed. Regulations are entitled to considerable
deference from the courts (generally, they will be upheld
Regulations, Guidelines, and Administrative Decisions
when challenged), provided that the regulations are viewed as reasonable interpretations
of the statutes on which they are based.1 Agencies also contribute to the law through their
­decisions in individual
T cases that are brought before them and the guidance that they
­provide in complying with laws.
Common Law R
Many disputes are resolved
through courts interpreting and enforcing the types of law
discussed earlier. However, sometimes courts are asked to resolve disputes over matters
E of legislation or regulation. Over time, courts have recognized
that have not been objects
certain common law
Nclaims to remedy harm to people caused by other people or companies. Common law is defined by state courts, but broad similarities exist across states.
C law is the traditional role of the courts in interpreting and enforcOne branch of common
ing contracts. The other
E branch is recognition of various tort claims for civil wrongs that
harm people. Tort claims relevant to employment law include negligence, defamation,
­invasion of privacy, infliction of emotional distress, and wrongful discharge in violation
of public policy.
Substantive5 Rights Under Employment Laws
9 rights on employees and impose corresponding responsibilities
Employment laws confer
on employers. Paradoxically,
the starting point for understanding employee rights is a legal
doctrine holding that employees do not have any right to be employed or to retain their
employment. This doctrine,
known as employment at will, holds that in the absence of a
U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984).
9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Part 1: Introduction to Employment Law
contract promising employment for a specified duration, the employment relationship can
be severed at any time and for any reason not specifically prohibited by law. Statutory and
other rights conferred on employees have significantly blunted the force of employment at
will. But in the absence of any clear right that employees can assert not to be terminated,
employment at will is the default rule that permits employers to terminate employment
without needing to have “good” reasons for doing so.
Broadly speaking, employees have the following rights under employment laws.
Nondiscrimination and Equal Employment Opportunity
A central part of employment law is the set of protections for employees against discrimination based on their race, sex, age, and other grounds. The equal protection provisions of
the U.S. Constitution (Fourteenth Amendment), Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with
Cof federal laws that prohibit discrimination in employment
Disabilities Act are examples
and express the societal value
Aof equal employment opportunity.
Freedom to Engage inLConcerted Activity and Collective Bargaining
V workers is to provide them with greater leverage in dealing
Another approach to protecting
with their employers and negotiating
contractual standards of fair treatment. Labor laws
exist to protect the rights of employees to join together to form labor unions and attempt
to improve their terms and R
conditions of employment through collective bargaining with
their employers. ImportantT
federal labor laws include the National Labor Relations Act,
the Railway Labor Act, and the Civil Service Reform Act (covering collective bargaining by
federal government employees).
Terms and Conditions of Employment That Meet
Minimum Standards
E workers in a more direct fashion by specifying minimum
Some employment laws protect
standards of pay, safety, andR
other aspects of employment. Federal laws exemplifying this
approach include the Fair Labor Standards Act (minimum wage and overtime pay requireR and Health Act (workplace safety standards), and the
ments), the Occupational Safety
Family and Medical Leave Act
E (leave policy requirements).
Protection of Fundamental
C practices are based on broader civil liberties and rights.
Some legal challenges to employer
For example, a variety of privacy
E protections exist, including privacy torts, the Electronic
Communications Privacy Act, the Employee Polygraph Protection Act, and the Fair Credit
Reporting Act.
Employees can take legal action to recover damages when, for example, they are the victims of employer negligence,5are defamed, or have emotional distress inflicted upon them;
their employment contract is9breached; or they are wrongfully discharged.
In the Casias v. Wal-Mart Stores case that follows, a terminated employee sues his forTmight sympathize with the employee under the facts of this
mer employer. Although one
case, it is apparent from thisSdecision that employment at will still presents a large hurdle
Compensation for Certain Types of Harm
for terminated employees.
9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 1: Overview of Employment Law
Casias v. Wal-Mart Stores
695 F. 3d 428 (6th Cir. 2012)
O pinion by Ci rc uit Judge Clay:
In this wrongful discharge action, Plaintiff Joseph
­Casias, a former Wal-Mart employee, appeals the district court’s . . . dismissal [of his lawsuit] for failure to
state a claim following his termination for failing a drug
test in violation of Defendants’ drug testing policy. . . .
[W]e AFFIRM the judgment of the district court.
* * * Plaintiff was an employee of Wal-Mart’s Battle
Creek, Michigan store from November 1, C
2004 until November 24, 2009, when Plaintiff was terminated
from Wal-Mart after he tested positive for marijuana,
in violation of the company’s drug use policy.L
Plaintiff was diagnosed with sinus cancer and an
inoperable brain tumor at the age of 17. During his
employment at Wal-Mart, Plaintiff enduredEongoing
pain in his head and neck. Although his oncologist
prescribed pain relief medication, Plaintiff continued
to experience constant pain as well as other side
T effects
of his medication. After Michigan passed the MMMA
[Michigan Medical Marihuana Act] in 2008, Plaintiff ’s
oncologist recommended that he try marijuana to treat
his medical condition. The Michigan Department of
T card on
Community Health issued Plaintiff a registry
June 15, 2009, and, in accordance with state law,
E he began using marijuana for pain management purposes.
R of pain
Plaintiff stated that the drug reduced his level
and also relieved some of the side effects fromRhis other
pain medication. Plaintiff maintains that he complied
Ewhile at
with the state laws and never used marijuana
work; nor did he come to work under the influence.
N Instead, Plaintiff used his other prescription medication
C once
during the workday and only used the marijuana
he returned home from work.
In November 2009, Plaintiff injured himself at
work by twisting his knee the wrong way while pushing a cart. Plaintiff contends that he was not
1 under
the influence of marijuana at the time of his accident.
8 he had
Although Plaintiff came to work the next day,
trouble walking and was driven to the emergency
5 room
by a Wal-Mart manager to receive treatment. Since
Plaintiff was injured on the job, he was administered
a standard drug test at the hospital in accordance
T with
Wal-Mart’s drug use policy for employees. Prior to his
Sthe testdrug test, Plaintiff showed his registry card to
ing staff to indicate that he was a qualifying patient for
medical marijuana under Michigan law. Plaintiff then
underwent his drug test, wherein his urine was tested
for drugs.
One week later, Defendant notified Plaintiff that
he tested positive for marijuana. Plaintiff immediately
met with his shift manager to explain the positive drug
test. Plaintiff showed the manager his registry card and
also stated that he never smoked marijuana while at
work or came to work under the influence of the drug.
Plaintiff explained that the positive drug test resulted
from his previous ingestion of marijuana within days
of his injury in order to treat his medical condition.
The shift manager made a photocopy of Plaintiff ’s registry card.
The following week, Wal-Mart’s corporate office directed the store manager . . . to fire Plaintiff due to the
failed drug test, which was in violation of the company’s drug use policy. Wal-Mart did not honor Plaintiff ’s
medical marijuana card. Plaintiff sued Wal-Mart . . . for
wrongful discharge and violation of the MMMA, arguing that the statute prevents a business from engaging
in disciplinary action against a card holder who is a
qualifying patient. * * * [T]he district court held that
the MMMA does not protect Plaintiff ’s right to bring a
wrongful termination action because the MMMA does
not regulate private employment. Plaintiff now appeals.
* * * According to the MMMA,
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner,
or denied any right or privilege, including but not
limited to civil penalty or disciplinary action by a
business or occupational or professional licensing
board or bureau, for the medical use of marihuana in
accordance with this act. . . .
The parties’ dispute focuses on the use of the word
“business” and whether the word simply modifies the
words “licensing board or bureau,” or in the alternative,
whether “business” should be read independently from
“licensing board or bureau.” * * * The district court
concluded that “the MMMA does not regulate private
employment; [r]ather the Act provides a potential defense to criminal prosecution or other adverse action
by the state.” Specifically, the court concluded that the
“MMMA contains no language stating that it repeals
the general rule of at-will employment in Michigan or
9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Part 1: Introduction to Employment Law
that it otherwise limits the range of allowable private
decisions by Michigan businesses.” * * *
We agree with the district court and find that the
MMMA does not impose restrictions on private employers, such as Wal-Mart. * * * Based on a plain
reading of the statute, the term “business” is not a
stand-alone term as Plaintiff alleges, but rather the
word “business” describes or qualifies the type of “licensing board or bureau.” Read in context, and taking
into consideration the natural placement of words and
phrases in relation to one another, and the proximity of
the words used to describe the kind of licensing board
or bureau referred to by the statute, it is clear that the
statute uses the word “business” to refer to a “business”
licensing board or bureau, just as it refers to an “occuA
pational” or “professional” licensing board or bureau.
The statute is simply asserting that a “qualifying patient” is not to be penalized or disciplined by a “busiV
ness or occupational or professional licensing board or
bureau” for his medical use of marijuana.
Plaintiff also argues that the plain language of the
statute somehow regulates private employment relationships, restricting the ability of a private employerT
discipline an employee for drug use where the employ,
ee’s use of marijuana is authorized by the state. We find,
however, that the statute never expressly refers to employment, nor does it require or imply the inclusionT
private employment in its discussion of occupational or
professional licensing boards. The statutory language
of the MMMA does not support Plaintiff ’s interpretaR
tion that the statute provides protecti…
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