Employment & Labor Law, 6th Edition

PART 1 Common-Law Employment Issues

LEGISLATION DATE

Model Uniform Employment Termination Act 1991

Sarbanes-Oxley Act 2003

PART 2 Equal Employment Opportunity

LEGISLATION DATE

Title VII of the Civil Rights Act of 1964 1964

Amended by:

The Equal Opportunity Act of 1972 1972

The Pregnancy Discrimination Act of 1978 1978

The Civil Rights Act of 1991 1991

The Equal Pay Act 1963

The Family and Medical Leave Act 1993

The Immigration Reform and Control Act of 1986 1986

The Age Discrimination in Employment Act 1967

The Americans with Disabilities Act of 1990 1990

The Mental Health Parity Act 1996

The Rehabilitation Act of 1973 1973

42 U.S.C. § 1981 (The Civil Rights Acts of 1866 and 1870) 1866

42 U.S.C. § 1983 (The Civil Rights Act of 1871) 1871

Executive Order No. 11246 1965

The Uniformed Services Employment and Reemployment Rights Act 1994

PART 3 Employment Law Issues

LEGISLATION DATE

Occupational Safety and Health Act 1970

Employee Retirement Income Security Act 1974

Fair Labor Standards Act 1938

Social Security Act 1935

Welfare Reform Act 1996

Older Workers Benefits Protection Act 1990

Immigration Act of 1990 1990

Whistleblower Protection Act 1989

Immigration Reform and Control Act 1986

Multiemployer Pension Plan Amendments 1980

Equal Pay Act 1963

Jones Act (Merchant Marine Act) 1936

Walsh-Healy Act 1936

Davis-Bacon Act 1931

Longshore and Harbor Workers’ Compensation Act 1927

Railway Labor Act 1926

Federal Employees’ Compensation Act 1916

Federal Employers Liability Act 1908

PART 4 Labor Relations Law

LEGISLATION DATE

The National Labor Relations Act (Wagner Act) 1935

Amended by:

The Labor Management Relations Act

(Taft-Hartley Act) 1947

The Labor-Management Reporting and Disclosure Act

(Landrum Griffin Act) 1959

The Worker Adjustment and Retraining Act 1988

EMPLOYMENT

&

L ABOR L AW

PATRICK J. CIHON

Law and Public Policy Department Syracuse University

JAMES OTTAVIO CASTAGNERA

President, Pinnacle Employment Law Institute Rider University

6TH EDITION

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Employment & Labor Law, 6th Edition

Patrick J. Cihon and James Ottavio Castagnera

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Brief Contents v

PART 1 COMMON-LAW EMPLOYMENT ISSUES 1

Chapter 1 Employment Contracts and Wrongful Discharge 2

Chapter 2 Commonly Committed Workplace Torts 19

PART 2 EQUAL EMPLOYMENT OPPORTUNITY 41

Chapter 3 Title VII of the Civil Rights Act and Race Discrimination 42

Chapter 4 Gender and Family Issues Legislation: Title VII and Other Legislation 71

Chapter 5 Discrimination Based on Religion and National Origin; Procedures Under Title VII 114

Chapter 6 Discrimination Based on Age and Disability 153

Chapter 7 Other EEO Legislation 197

PART 3 EMPLOYMENT LAW ISSUES 225

Chapter 8 Occupational Safety and Health 226

Chapter 9 Employee Retirement Income Security Act (ERISA) 256

Chapter 10 The Fair Labor Standards Act 282

Chapter 11 Employee Welfare Programs: Social Security, Workers’ Compensation, and Unemployment

Compensation 310

PART 4 LABOR RELATIONS LAW 343

Chapter 12 The Development of American Labor Unions and the National Labor Relations Act 344

Chapter 13 The National Labor Relations Board: Organization, Procedures, and Jurisdiction 369

Chapter 14 The Unionization Process 396

Chapter 15 Unfair Labor Practices by Employers and Unions 420

Chapter 16 Collective Bargaining 471

Chapter 17 Picketing and Strikes 501

Chapter 18 The Enforcement and Administration of the Collective Agreement 534

Chapter 19 The Rights of Union Members 565

Chapter 20 Public Sector Labor Relations 591

APPENDICES 624–711

GLOSSARY 712

LIST OF CASES 715

INDEX 718

BRIEF

CONTENTS

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Contents v

CONTENTS

PART 1 COMMON LAW EMPLOYMENT ISSUES 1

Chapter 1 Employment Contracts and Wrongful Discharge 2

Employment-at-Will 2 • Wrongful Discharge Based on Public Policy 3 • Express and

Implied Contracts of Employment 8 • Model Employment Termination Act 11 • New

Protection for Corporate Whistleblowers 12 • Summary 15 • Questions 15 • Case

Problems 16

Chapter 2 Commonly Committed Workplace Torts 19

Defamation and Invasion of Privacy 20 • Invasion Of Privacy 22 • Defamation: Libel

and Slander 24 • Tortious Infliction of Emotional Distress 29 • Tortious Interference

with Contract 30 • Retaliatory Demotion 31 • Theft of Trade Secrets 32 • Alternative

Dispute Resolution 35 • Summary 36 • Questions 37 • Case Problems 37

PART 2 EQUAL EMPLOYMENT OPPORTUNITY 41

Chapter 3 Title VII of the Civil Rights Act and Race

Discrimination 42

Title VII of the Civil Rights Act of 1964 43 • Coverage of Title VII 43 •

Administration of Title VII 44 • Discrimination Under Title VII 45 • Bona Fide

Occupational Qualifications (BFOQ’s) 46 • Unintentional Discrimination: Disparate

Impact 46 • Section 703(K) and Disparate Impact Claims 49 • Validating Job

Requirements 51 • The “Bottom Line” and Discrimination 54 • Seniority and Title VII

56 • Mixed Motive Cases Under Title VII 60 • Retaliation Under Title VII 60 •

Affirmative Action and Title VII 61 • Other Provisions of Title VII 66 • Summary 66

• Questions 67 • Case Problems 67

Chapter 4 Gender and Family Issues Legislation: Title VII and

Other Legislation 71

Gender Discrimination 71 • Dress Codes and Grooming Requirements 72 • Gender as a

BFOQ 72 • Gender Stereotyping 75 • “Gender-Plus” Discrimination 78 • Gender

Discrimination in Pay 78 • The Equal Pay Act 79 • Defenses Under the Equal Pay Act 80

• Procedures Under the Equal Pay Act 84 • Remedies 84 • Title VII and the Equal Pay

Act 84 • Gender-Based Pension Benefits 85 • Pregnancy Discrimination 88 • The

Family and Medical Leave Act 89 • Serious Health Condition 89 • Leave Provisions 90 •

vi Contents

Coverage 90 • Effect of Other Laws on the FMLA 93 • State Legislation 93 • Sexual

Harassment 94 • Quid Pro Quo Harassment 96 • Hostile Environment Harassment 96 •

Employer Liability for Sexual Harassment 99 • Employer Responses to Sexual Harassment

Claims 102 • Provocation 103 • Conduct of a Sexual Nature 103 • Remedies for

Sexual Harassment 104 • Sexual Orientation, Sexual Preference, and Sexual Identity

Discrimination 105 • Other Gender-Discrimination Issues 109 • Summary 110 •

Questions 110 • Case Problems 111

Chapter 5 Discrimination Based on Religion and National Origin;

Procedures Under Title VII 114

Discrimination on the Basis of Religion 114 • Exceptions for Religious Preference and Religious

Employers 115 • Discrimination Based on National Origin 122 • Definition 122 •

Disparate Impact 123 • English-Only Rules 124 • The Immigration Reform and Control Act

Of 1986 and Discrimination Based on National Origin or Citizenship 127 • Enforcement of

Title VII 128 • The Equal Employment Opportunity Commission 128 • Procedures Under

Title VII 129 • EEOC Procedure and Its Relation to State Proceedings 130 • EEOC Procedure

for Handling Complaints 131 • Burdens of Proof: Establishing a Case 133 • Disparate

Treatment Claims 133 • Disparate Impact Claims 137 • Arbitration of Statutory EEO

Claims 139 • Remedies Under Title VII 142 • Compensatory and Punitive Damages 144 •

Remedial Seniority 146 • Legal Fees 146 • Class Actions 146 • Public Employees Under

Title VII 147 • Summary 148 • Questions 149 • Case Problems 149

Chapter 6 Discrimination Based on Age and Disability 153

The Age Discrimination in Employment Act 153 • Coverage 154 • Provisions 154 •

Procedures Under The ADEA 167 • Remedies Under The ADEA 169 • Discrimination

Because of Disability 169 • The Americans with Disabilities Act 169 • Qualified

Individual with a Disability 170 • Definition of Disability 171 • Medical Exams and

Tests 175 • Reasonable Accommodation 175 • Defenses Under the ADA 180 •

Enforcement of the ADA 181 • The Rehabilitation Act 182 • Provisions 182 • Aids

and the Disability Discrimination Legislation 184 • State Disability Discrimination

Legislation 185 • Drug Abuse and Drug Testing 186 • Summary 192 • Questions 193

• Case Problems 193

Chapter 7 Other EEO Legislation 197

The Civil Rights Acts of 1866 and 1870 197 • Section 1981 197 • Section 1983 199 •

Section 1985(C) 199 • Procedure Under Sections 1981 And 1983 199 • Executive Order

No. 11246 200 • Equal Employment Requirements 200 • Affirmative Action

Requirements 200 • Procedure Under Executive Order No. 11246 201 • Employment

Discrimination Because Of Military Service: The Uniformed Services Employment And

Reemployment Rights Act 202 • The Uniformed Services Employment and Reemployment

Rights Act 202 • The National Labor Relations Act 205 • Constitutional Prohibitions

Against Discrimination 206 • Due Process and Equal Protection 206 • Affirmative Action

and the Constitution 207 • Other Constitutional Issues 210 • State EEO and Employment

Laws 210 • Other Employment Legislation 212 • Summary 220 • Questions 221 •

Case Problems 221

Contents vii

PART 3 EMPLOYMENT LAW ISSUES 225

Chapter 8 Occupational Safety and Health 226

Purpose of the Occupational Safety and Health Act 228 • Administration and

Enforcement 228 • Employee Rights 235 • Inspections, Investigations, and Recordkeeping 238

• Citations, Penalties, Abatement, and Appeal 243 • State Plans 244 • Workplace

Violence 244 • Summary 252 • Questions 253 • Case Problems 253

Chapter 9 Employee Retirement Income Security Act (ERISA) 256

ERISA: Background and Purpose 257 • Coverage 257 • Pre-emption 258 • Fiduciary

Responsibility 260 • Minimum Requirements for Qualified Pension Plans 269 •

Termination of a Plan 275 • Summary 280 • Questions 280 • Case Problems 280

Chapter 10 The Fair Labor Standards Act 282

Background of the FLSA 283 • Origin and Purpose of the Fair Labor Standards Act 287

• Coverage 288 • Minimum Wages 291 • Overtime Pay 297 • Exemptions from

Overtime and Minimum Wage Provisions 298 • Limitations on Child Labor 300 •

Enforcement and Remedies Under FLSA 305 • Summary 307 • Questions 307 • Case

Problems 308

Chapter 11 Employee Welfare Programs: Social Security,

Workers’ Compensation, and Unemployment Compensation 310

The Social Security and Supplemental Security Acts 312 • Titles II and VIII of the Social

Security Act of 1935 313 • The 1970s: Social Security Crisis 314 • The 1980s: Recovery?

314 • Social Security Benefit Programs Today 315 • Other Federal and State Benefit

Programs 320 • Who Must Participate in Social Security? 323 • Workers’ Compensation:

Limited Liability and Easy Recovery 325 • Eligibility for Benefits 327 • Workers’

Compensation Procedures 329 • Workers’ Compensation Preemption by Federal Law 330 •

Unemployment Compensation 332 • Voluntary Quitting 335 • Summary 340 •

Questions 340 • Case Problems 340

PART 4 LABOR RELATIONS LAW 343

Chapter 12 The Development of American Labor Unions and the

National Labor Relations Act 344

Labor Development In America 345 • The Post–Civil War Period 349 • Recent Trends

in the Labor Movement 352 • Legal Responses to the Labor Movement 354 • The

Injunction 354 • Yellow-Dog Contracts 355 • The Antitrust Laws 356 • The

Development of the National Labor Relations Act 358 • The Norris–La Guardia

Act 358 • The Railway Labor Act 361 • The National Industrial Recovery Act 363 •

The National Labor Board 363 • The “Old” National Labor Relations Board 364 • The

National Labor Relations Act 365 • Overview of the National Labor Relations Act 366 •

Summary 367 • Questions 368

viii Contents

Chapter 13 The National Labor Relations Board: Organization,

Procedures, and Jurisdiction 369

The National Labor Relations Board 369 • Organization 369 • Procedures 373 •

Jurisdiction 378 • Preemption and the NRLA 391 • Summary 392 • Questions 393

• Case Problems 393

Chapter 14 The Unionization Process 396

Exclusive Bargaining Representative 396 • Employees’ Choice of Bargaining Agent 397 •

Rules that Bar Holding an Election 400 • Defining the Appropriate Bargaining Unit 401

• Voter Eligibility 407 • Representation Elections 408 • Decertification of the

Bargaining Agent 412 • Acquiring Representation Rights Through Unfair Labor Practice

Proceedings 412 • Summary 416 • Questions 417 • Case Problems 417

Chapter 15 Unfair Labor Practices by Employers and Unions 420

Section 7: Rights of Employees 421 • Sections 8(A)(1) and 8(B)(1): Violation of

Employee Rights by Employers or Unions 430 • Antiunion Remarks By Employer 430 •

Employer Limitations on Soliciting and Organizing 432 • Other Section 8(A)(1)

Violations 436 • Union Coercion of Employees and Employers 438 • Section 8(A)(2):

Employer Domination of Labor Unions 440 • Sections 8(A)(3) and 8(B)(2):

Discrimination in Terms or Conditions of Employment 445 • Discrimination in

Employment to Encourage Union Membership 447 • Discrimination in Employment to

Discourage Union Membership 449 • Strikes as Protected Activity 450 • Other Unfair

Labor Practices 460 • Employer Reprisals Against Employees 460 • Excessive Union

Dues or Membership Fees 461 • Featherbedding 461 • Remedies for Unfair Labor

Practices 461 • Reinstatement 462 • Back Pay 464 • Delay Problems In NLRB

Remedies 465 • Summary 466 • Questions 467 • Case Problems 467

Chapter 16 Collective Bargaining 471

The Duty to Bargain 472 • Bargaining in Good Faith 472 • The Nature of the Duty to

Bargain in Good Faith 480 • Subject Matter of Bargaining 482 • Mandatory Bargaining

Subjects 482 • Permissive Bargaining Subjects 489 • Prohibited Bargaining Subjects 489

• Modification of Collective Agreements 490 • Bargaining Remedies 492 • Antitrust

Aspects of Collective Bargaining 495 • Summary 497 • Questions 497 • Case

Problems 498

Chapter 17 Picketing and Strikes 501

Pressure Tactics 501 • Strikes in the Healthcare Industry 502 • The Legal Protection of

Strikes 502 • The Norris–La Guardia Act 503 • The NLRA 505 • Picketing Under

the NLRA 508 • Remedies for Secondary Activity 527 • National Emergencies 527 •

Summary 528 • Questions 528 • Case Problems 529

Contents ix

Chapter 18 The Enforcement and Administration of the Collective

Agreement 534

Arbitration 535 • Interest Arbitration Versus Rights Arbitration 535 • Rights Arbitration

and the Grievance Process 535 • The Courts and Arbitration 537 • Judicial Enforcement

of No-Strike Clauses 542 • The NLRB and Arbitration 544 • Changes in the Status

of Employers 548 • Successor Employers 548 • Bankruptcy and the Collective

Agreement 553 • Summary 560 • Questions 561 • Case Problems 561

Chapter 19 The Rights of Union Members 565

Protection of the Rights of Union Members 565 • The Union’s Duty of Fair

Representation 566 • Rights of Union Members 577 • Union Discipline of

Members 577 • Union Members’ Bill Of Rights 578 • Other Restrictions on Unions 584

• Summary 585 • Questions 585 • Case Problems 586

Chapter 20 Public Sector Labor Relations 591

Government as Employer 591 • Federal Government Labor Relations 594 • Historical

Background 594 • The Federal Service Labor-Management Relations Act 595 • Judicial

Review of FLRA Decisions 603 • The Hatch Act 603 • Union Security Provisions 603 •

Federal Labor Relations and National Security 605 • State Public Sector Labor Relations

Legislation 608 • Coverage of State Laws 609 • Representation Issues 609 • Public

Employees and First Amendment Free Speech Rights 613 • Summary 620 • Questions

620 • Case Problems 621

Appendix A Civil Rights Act of 1964 624

Appendix B Text of Title 42 U.S.C. Section 1981 639

Appendix C Extracts from the Age Discrimination

in Employment Act 642

Appendix D Extracts from the Family and Medical Leave Act 653

Appendix E Extracts from the Americans with Disabilities Act 661

Appendix F Extracts from the Rehabilitation Act 668

Appendix G Text of the National Labor Relations Act 671

Appendix H Text of the Labor Management Relations Act 685

Appendix I Text of the Labor-Management Reporting and

Disclosure Act of 1959 696

Glossary 712

List of Cases 715

Index 718

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Preface xi

Employment and Labor Law, which first appeared in February 1988, will mark its 20th

anniversary during the life of this sixth edition. Our first reaction to this milestone is one

of deep gratitude to faculty who have adopted our text down through these decades. Hard

on the heels of this warm feeling is our sense of awe at the evolution of the employment

arena, which to the best of our abilities has been chronicled in the pages of these half-dozen

editions.

Emblematic of dramatic change is the book’s title, which for the first and second edi￾tions was Labor and Employment Law. The seemingly irreversible decline in the percentage

of employees, particularly in the private sector, represented by organized labor—down from

30% at the movement’s zenith in the 1950s to fewer than one in 10 private-sector employ￾ees today—and the concomitant increase in individual-employee rights drove our decision

to reverse the order of the words “labor” and “employment” in the subsequent editions.

This, however, is not to say that organized labor has ceased to be an important player in

the workplace arena. To the contrary, the rise of such upstart organizations as the Service

Employees International Union (SEIU)—best known for its occasionally violent “Justice for

Janitors” campaign and its founding membership in 2005’s “Change to Win” coalition of

maverick unions—has shaken the somewhat staid AFL-CIO to its foundations. For the first

time since the 1960s, a coalition of unions has declared its main mission to be organizing

the unorganized. In the words of the SEIU website, “At the federation’s founding conven￾tion in 2005, members pledged to focus their efforts on uniting the 90 percent of workers

not yet in a union so that all working people in this country can build the power to make

their voices heard in their jobs, their communities, and in Washington.” [http://

www.seiu.org/faqs/faq_changetowin.cfm] In September 2007 even the stodgy United

Autoworkers of America struck a “Big Three” auto maker, General Motors, for the first time

since 1970.

Concurrently, American unions have discovered that in a global business environment,

where many non-union American corporations have been acquired by unionized European

firms, a global organizing strategy can jump-start floundering local and national campaigns.

Such was the case with the 2006 acquisition of three well-known U.S. security firms—

Pinkerton, Burns International, and Loomis Fargo—by the Sweden-based Securitas. SEIU’s

President Andy Stern commented, “All of a sudden we found ourselves needing to talk more

to CEOs in Europe than in America.” While SEIU’s efforts to organize the rank-and-file of

PREFACE

xii Preface

the massive post-9/11 security establishment have enjoyed only spotty success so far, the

global War on Terror helps keep a spotlight on this union goal.

Meanwhile, the dynamic nature of employment law has lost none of its post-WWII

momentum. In some sectors of the developing law, tangents have intersected in some very

interesting and significant ways. For instance, arguably the most significant Supreme Court

decisions in the lively area of affirmative action have been the 2003 decisions dealing with

student-admission standards at the University of Michigan. [See Grutter v. Bollinger, 539

U.S. 306 (2003).] In 2007 the nation’s highest forum expounded again, this time on the use

of race in the assignment of K–12 students to a school district’s various facilities. [See Parents

Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County

Board of Education, 127 S.Ct. 2738 (2007)] While the high court has yet to take up the issue

of using race as a factor in hiring decisions on the Grutter ground of fostering diversity as a

workplace value, a number of lower federal courts have considered the issue. It seems but a

matter of time before the rules so recently enunciated for elementary, high school, and

higher education students will be tested in the workplace.

Similarly, the issue of immigration refuses to be constrained neatly within the bounds of a

single field of the law, such as employment. The Democratic Congress, following the 2006

national elections in the waning days of the Bush administration, has tried and failed to reform

the ineffective national immigration statutes, dating from the last major “reform” in 1986.

Impatient for action, embattled states and municipalities have attempted their own legislative

“solutions” to the problems posed by the presence of millions of illegal aliens in American

communities and workplaces. An ordinance enacted in 2006 in Hazleton, Pennsylvania, was

the first to focus national attention on this local phenomenon. Numerous communities across

the country have followed Hazleton’s lead, as the ACLU and pro-immigrant organizations

challenge each of these enactments in federal court on grounds ranging from federal preemp￾tion to fourteenth-amendment due process. As this textbook goes to press the federal courts

thus far have stricken down these ordinances as intrusive upon Congressional interstate powers

and individuals’ “due process” rights.

It is in this dynamic, challenging and exciting environment that we take pride in pre￾senting the sixth edition of Employment and Labor Law. We trust that it will assist your stu￾dents in understanding the not-so-seamless web of statutes, regulations, and court cases that

are both driving and responding to change in the American workforce in this most dynamic

of American decades.

While Employment and Labor Law, Sixth edition, is about law, it is a “law book” designed

for use by non-lawyers. The primary audience for this book is students in business

schools, human resources programs, and industrial relations programs; but the book

also can be used by anyone seeking to learn about labor and employment law in the

United States.

Purpose and Organization