The Individual Employment Rights Primer

Kurt Decker, Kurt H. Decker

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781351841207
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A guide to employment law. One of the most rapidly evolving areas of law involves individual employment rights. Individual employment rights has no clearly defined boundary. It encompasses a multitude of employment statutes and court decisions. It finds its support in constitutional law and has developed as part of specialized employment law areas involving record keeping and disclosure, labor relations, health and safety, labor standards, fair employment practices. This book consolidates these fragmented individual employment rights into a centralized reference source.

1
The Developing Law of Individual Employment Rights

Employment law is a maze of common-law doctrines, statutes, contract-established rules, judicial pronouncements, and administrative agency findings. Symmetry and clearly discernible legal patterns are not often recognizable. Even within a narrow area, employment law can vary considerably, depending whether an administrative agency or a court is involved. Statutes and court decisions reflect this shifting conflict balance between employee and employer making employment law one of the most political of legal areas.

Employment laws provide a mechanism to deal with conflict. Conflict involves not only wages, hours, and employment conditions, but also power contests within and between various groups and personalities within and outside organizations. This may include confrontations between employees, union officials, governmental agencies, and employers. Employment law is concerned with "rules of the game" where law and economics constantly confront ethical and moral problems for resolution.

Individual employment rights consist of the at-will employment relationship and employee privacy interests. At-will employment allows termination of employment by either an employee or employer at any time for no reason.

Employee privacy has varied meanings. It encompasses a broad spectrum of individual employment rights relating to the intrusiveness and fairness of information collection, maintenance, use, and disclosure along with employee lifestyle regulation at and outside the workplace. These interests arise prior to, during, and after the employment relationship is terminated.

This text reviews individual employment rights for all those interested in this developing area of the law. Along with examining at-will employment and employee privacy, guidance is offered to limit employer liability arising out of the individual employment relationship when dealing with these workplace situations.

THE EMPLOYMENT RELATIONSHIP

Employee and employer relationships are the basis of our economic structure affecting most people over the greater part of their lives. People increasingly depend on others to offer them the means to produce their daily income. Employment loss can be a considerable hardship having disastrous consequences. This relationship has become fundamental to society. Outside of marriage, no other relationship preoccupies daily affairs so completely.

Through multi-faceted human resource functions, wage and benefit programs, and government regulation, the employment relationship has become complex. Correspondingly, this relationship generates large quantities of information and records.

By entering into an employment relationship, little employee choice exists in providing sensitive, often detailed information. This information may reveal the employee's innermost beliefs, interests, and actions. It may cause incorrect evaluations by those who lack decision-making authority affecting the employee's standing and reputation at and outside the workplace. Through this, the employee may experience restricted opportunities to develop and maintain political, economic, and social relationships.

THE AT-WILL EMPLOYMENT RELATIONSHIP

Historically, the employment relationship has limited an employee's ability to challenge an employer's unfair, adverse, or damaging practices. It generally denies any right to the employee who is arbitrarily treated without a union or a contract. Absent a statutory or contractual restriction, an employee or employer can generally terminate the employment relationship at any time, for any or no reason, with or without notice, making it at-will.

Employee and employer rights within the United States trace their beginnings to England's Statute or Labourers. The Statute of Labourers was enacted in response to the extreme labor shortage that resulted from the Black Death in the mid-14th century. It provided that a "general hiring" of labor for an unfixed term was presumed to be for a year and that a "master" could not "put away his servant" except for "reasonable cause." After its repeal, English courts continued to apply the statute's spirit by presuming that a "general hiring" was intended to serve as an employment contract for one year. If the employment continued for longer than one year, it could be terminated only at the end of an additional year.

The American at-will employment doctrine has been viewed both as a departure from and as part of this English heritage. Early American courts adopted the English approach. In the 1880s, however, American courts developed their own version of at-will employment.

In 1887, H. G. Wood's treatise on the master-servant relationship articulated what seemingly became America's at-will employment doctrine. H. Wood, in the treatise Master and Servant 134 (3d ed. 1886), wrote that:

With us the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month, or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve.

Although Wood's "Rule" has been challenged and in certain instances negated, it has become the primary basis for what remains of at-will employment in this country.

American courts probably adopted Wood's Rule to facilitate economic development during the industrial revolution of the 1800s by promoting the prevalent ideology of laissez faire and freedom of contract. Within this framework, Wood's Rule seemed equitable. It provided the employer the flexibility to control the workplace through the unchallengeable power to terminate the employment relationship at will. In turn, the employee retained the freedom to resign if more favorable employment presented itself or if working conditions became intolerable. The at-will employment relationship has been codified in several jurisdictions.

Congress and various state legislatures have prohibited, in certain instances, the summary termination of an at-will employee. Courts have found that an employer may terminate an employee for any reason except when statutorily prohibited. The primary federal statutes limiting an employer's right to terminate an at-will employee are the National Labor Relations Act (NLRA) and the Civil Rights Act of 1964 (Title VII). The NLRA prohibits termination for exercising the right to organize and select an employee representative. Title VII prohibits any termination based upon discrimination involving race, color, religion, sex, or national origin. Other federal legislation restricting employee terminations are the:

1. Age Discrimination in Employment Act of 1967 (ADEA);
2. Occupational Safety and Health Act of 1970 (OSHA);
3. Vietnam Era Veterans Readjustment Assistance Act;
4. Fair Labor Standard Act (FLSA);
5. The Vocational Rehabilitation Act of 1973;
6. The Employee Retirement Income Security Act of 1974 (ERISA);
7. Energy Reorganization Act of 1974;
8. Clean Air Act;
9. Federal Water Pollution Control Act;
10. Railroad Safety Act;
11. Consumer Credit Protection Act; and
12. Judiciary and Judicial Procedure Act.
13. Americans with Disabilities Act of 1990

State statutes contain similar limitations.

The principal goals of this federal and state legislation have been to:

1. Promote unionization as a countervailing force against employer power and control;
2. Establish a minimum level of employee economic entitlement;
3. Combat discrimination against specific groups in hiring and terminations;
4. Protect employee health and safety; and
5. Guarantee a minimum level of security for retirement and for the survivors of wage earners.

Until recently, courts consistently upheld the legality of arbitrary terminations and denied damage claims even where the termination reasons were based upon false information, mistake, malice, or where the employer did not follow its own published disciplinary and appeal procedures. Courts and legislatures are now creating exceptions to this laissez faire relationship of at-will employment by permitting employees to contest certain employer actions. These exceptions may arise out of public policy considerations employer documents, or rest on the assumption that an implied covenant of good faith and fair dealing exists in every employment relationship whether oral or written.

EMPLOYMENT PRIVACY

The concept of privacy within the United State is generally traced to an article by Samuel D. Warren and Louis D. Brandeis. [Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).] Prior to 1890, no American cause of action for damages could be brought for a privacy invasion. Warren and Brandeis maintained that even though no prior case law explicitly supported a privacy right's existence, a reasoned development of common law principles and society's changing circumstances supported it. Their basic assumption was that the law recognizes novel causes of action. They noted the need for this innovation due to the newly developed methods of invading private and domestic life through photography and newspapers.

Employee privacy is a growing concern. Since George Orwell raised the spector of "Big Brother" with his book 1984, computer technology, court decisions, government intrusion, and the employer's right to know more about the individuals they employ have eroded the employee's sense that his/her life is a private matter.

Next to at-will employment, privacy is the most rapidly evolving individual employment rights area. Privacy concerns the nature and extent of an employee's "right to be let alone" or to be free from "unwarranted intrusions."

From the moment an individual first walks through an employers entrance, privacy rights are relinquished. As an employment condition, employees must disclose personal facts about their background and continually submit to employer scrutiny that may or may not be performance related. The employee may confront a physical examination, polygraph examination, psychological evaluation, or even an antibody test for Human Immunodeficiency Virus (HIV). Physical intrusion may also occur through locker searches or frisking as employees leave the workplace, even though no reasonable suspicion of theft exists.

Privacy interests are implicated where an employer conducts routine surveillance and monitoring. Employers have been known to operate video cameras in employee restrooms. Some employers have installed computers to monitor performance of video display terminal operators.

Employment privacy concerns extend to employer efforts to collect personal information that is not job-related. Employers have a legitimate need to know certain things about their employees, including their abilities, honesty, and prior employment histories. Some employers want to know much more. They assert mistakenly, that everything about an employee is relevant to employment and that it is necessary to examine the "whole person" to determine whether employment suitability exists. The employer wants to know if the employee smokes marijuana at home, is a homosexual, she/male, or socializes with the "wrong" kind of people.

When employers disclose employment information to third parties other employee privacy interests are implicated. These disclosures are primarily made to prospective employers as job references. The employer may disclose an employee's confidential medical records to those who have no legitimate need to view them or may disclose negative private facts out of spite or revenge. This may cause embarrassment by subjecting the employee to ridicule from friends and acquaintances. It may injure the employee's reputation and limit future employment prospects.

Today, legislatures and courts are increasingly concerned about individual employment rights. While employers may have legitimate business interests that sometimes require infringing on employee privacy, there are compelling reasons to limit the employer's trespass on employee privacy where no legitimate business reason exists.

Employment privacy interests exist in the:

1. Employee's person, property, or private conversations;
2. Employee's private life or beliefs;
3. Use of irrelevant, inaccurate, or incomplete facts to make employment decisions; and
4. Disclosure of employment information to third parties.

The can be summarized into the five main employment privacy themes of:

1. Speech—what is said about someone;
2. Beliefs—what one thinks;
3. Information—what is collected, maintained, used, and disclosed;
4. Association—with whom one shares similar interests; and
5. Lifestyle—how one lives.

It Is these privacy interests that recur throughout employment as they relate to hiring, the workplace, and life outside the workplace.

Individuals are generally comfortable in relating the more intimate aspects of their lives to a friend. They are secure with the friend's use of what is learned. The friend is trusted to continue respect for them, despite what may be known as a consequence of a request for assistance or guidance.

An important difference between an individual's relationship with family and friends and their relationship with employers, is that employers treat them as continuing performance evaluation objects. Among family and friends the individual's life is perceived to be conducted "in private" and involving "private relations." They believe themselves safe from scrutiny and secure. This is not true of the employment relationship.

Within the employment relationship there are two basic privacies. One concerns "informational privacy" or the interest in controlling employment information collection maintenance, use, and disclosure. The other relates to "behavioral privacy" or the interest in participating in activities free from employer regulation or surveillance at and outside the workplace.

"Privacy" and "confidentiality" are similar but yet distinct. Employment information "privacy" concerns what should be collected, how much should be maintained, and what should be disclosed. Through "confidentiality," the employer represents to those from whom it collects information that unauthorized uses or disclosures will not be made through procedures that ensure this information's security. Confidentiality requires security controls in oral and written communications as well as in manual and computerized records.

EXERCISING INDIVIDUAL EMPLOYMENT RIGHTS

In entering into the employment relationship, the employee must often relinquish considerable autonomy. Most employees do not bargain for their employment position. They adhere to the employer's unilateral terms. If they do not follow these employment terms, they may not be employed.

If employed by a large employer, the employee must conform with the employer's expectations, rules, and procedures that define specific rights and responsibilities. Many employees are wholly dependent upon their employers for their economic well-being.

Based on the anticipated continuance of this relationship, the employee creates various social and financial commitments. These may include marriage, children, home, automobile, etc. This establishes a social or financial reliance in others that is also dependent upon the employee's relationship with the employer.

Absent statutory restrictions, an employer can generally collect, maintain, use, and disclose employm...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• Chapter 1 The Developing Law of Individual Employment Rights
• Chapter 2 Hiring Guidelines
• Chapter 3 Employment Records
• Chapter 4 Medical Concerns
• Chapter 5 Information Collection Procedures
• Chapter 6 Employee Concerns at the Workplace
• Chapter 7 Outside the Workplace
• Chapter 8 Individual Employment Rights Litigation
• Index
• About the Author