Week One EMPLOYMENT LAW ONLINE 10 2007

Slide1: 

Workshop One – Online Robert H. Obringer, JD,MA,MBA/TM

Introduction: 

Introduction What is Law? What is Employment Law ? Over the past 75 years there has been an explosion of laws regulating the employment relationship! Some Factors: Union Movement Civil Rights Movement Concerns for workers’ safety Concern for the Environment

Classification of Law: 

Classification of Law

Variety of Business Relationships: 

Variety of Business Relationships

Employer/Employee: 

Employer/Employee Superiors. Peers or Associates in Partnerships Subordinates. Labor Organizations.

Worldwide Environment: 

Worldwide Environment International Business Transactions Legal Environment in Other Countries

Maximize Your Effectiveness: 

Maximize Your Effectiveness Awareness of Legal Consequences. Honest and Fair Dealings. Ethical Issues and Concerns of the Business Environment.

Ethics ??: 

Ethics ?? Law & Public Policy Morality Social Responsibility Religious & Cultural Heritage Term also is applied to any theory of values or moral principles

Overview: 

Overview What is Right or Wrong Is it Legal What is Art What is Beauty What is the meaning of life?

Questions Raised: 

Questions Raised How should we live? Shall we aim at happiness or at knowledge, virtue, or the creation of beautiful objects? If we choose happiness, will it be our own or the happiness of all? And what of the more particular questions that face us: Is it right to be dishonest in a good cause? What are our obligations to the other creatures with whom we share this planet and to the generations of humans who will come after us?

Ethics and Morality: 

Ethics and Morality Closely Related to Law when we consider employment What is fair What are our rights What is Legal What can I live with

Philosophy Asks Foundational Questions: 

Philosophy Asks Foundational Questions What is truth and knowledge? Is there a meaning to our existence? What is beauty and art? What makes something good, bad, right, or wrong? Why should there be a state? Is there a God?

Socrates: 

Socrates “The unexamined life is not worth living.” Key beliefs: Objectivity of goodness Link between knowing what is good and doing it Lived from about 470 BC until he was put to death in 399.

Plato’s Theory of theJust Soul: 

Plato’s Theory of the Just Soul Only reason can “see” the Form of the Good, so reason should properly govern each part of the soul Temperance is appetite governed by reason Courage is drive governed by reason Wisdom is intellect governed by reason Justice is when all three of the above virtues are present in the same soul, and it is essential to true happiness

Ancient Ethical Naturalists : 

Ancient Ethical Naturalists Aristotle: The good life is the happy life obtained by functioning excellently as a rational animal (human being) Epicureans: The good life is the moderate life of pleasure characterized by the avoidance of pain Stoics: The good (pleasant) life is one of calm indifference, emotional detachment, serenity, and acceptance of the natural law

Christian Ethics: 

Christian Ethics (St.) Augustine (354-430) explained physical evils as the absence of good and moral evils as the result of misdirected love (St.) Thomas Aquinas (1225-1274) blended Aristotle’s natural law with the divine law

Point of Studying Ethics: 

Point of Studying Ethics Ancient Questions are at the basis of modern ethical theories These theories are foundation of Schools of Jurisprudence Schools of Jurisprudence form modern Employment Law

Ethical Theories: 

Ethical Theories Teleological Concerned with Consequences Deontological Motivation Principle

Modern Ethical Theories: 

Modern Ethical Theories Consequential The good or evil results of an action Egoism Self-interest is the proper goal (long term?) Utilitarian Greatest good for the greatest number Feminism (Individualism) Philosophy of caring Effect on the individuals

Utilitarian: 

Utilitarian Greatest good for the Greatest Number Compare to Corporate Ethics what will maximize profits of Shareholders Concerns for Stakeholders Employees Customers Environment Local Community

Teontological: 

Teontological The ethical good of an act is to be judged based on the effect of the action on others Concerned with Consequences Distinct from deontological which is concerned with the motivation of the actor

Utilitarian: 

Utilitarian Greatest good for the Greatest Number Compare to Corporate Ethics what will maximize profits of Shareholders Concerns for Stakeholders Employees Customers Environment Local Community

Non-Consequential: 

Non-Consequential Deontological Immanuel Kant and the Categorical Imperative Each person should act in a manner that his or her actions could become universal law Duty is more important than result Rawlsian Ethics and the Veil of Ignorance An idealized “contract form” of justice Other Theories Relativism The Golden Rule

Deontological: 

Deontological Ethical Actions defined in Terms of Duties. Codes of Professional Conduct Ethical norms are defined in terms of duties to: Patients Clients Courts From Greek “dein” which means to bind

Immanuel Kant: 

Immanuel Kant Kant's most distinctive contribution to ethics was his insistence that our actions possess moral worth only when we do our duty for its own sake. "Act only on that maxim through which you can at the same time will that it should become a universal law." Universalizability Reversability

John Rawls – Theory of Justice: 

John Rawls – Theory of Justice Maximize the welfare of those at the minimum level in society If everyone operated from behind a “veil of ignorance” as to their own position – Act to safeguard themselves against the worst possible occurrence.

American Pragmatism: 

American Pragmatism C. S. Pierce (1839-1914) the meaning of an idea is the sum of its practical consequences, and truth is whatever the ultimate consensus will be William James (1842-1910) the meaning and truth of an idea are based on its usefulness or workability for the individual John Dewey (1859-1952) thought should solve practical problems; metaphysics is escapism and realism is false

Rights Theory: 

Rights Theory Ethical actions are defined in terms of rights Compare to the Legal system in the US Recognizes personal rights Defines illegal actions in terms of violating such rights

Rights Theory: 

Rights Theory Negative Right Duty on the community is simply do not interfere or restrict Positive Rights Requires the community to act Example Right to have a common defense – Positive Right to bear arms - negative

Schools of Jurisprudence: 

Schools of Jurisprudence Legal Positivism. Natural Law. American Legal Realism. Sociological Jurisprudence.

Legal Positivism: 

Legal Positivism Command of a recognized authority. “Law is Law. Just or Not. Valid Law should be enforced .

Positive Law: 

Positive Law “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Hobbes – Leviathan Austin’s Jurisprudence Distinction Obey because it’s the law Not --- Obey because it is right Business Law is generally “Positive Law”

Natural Law: 

Natural Law All Commands that are not unjust. Unjust Law is not Law. Unjust Positive Laws should not be enforced and obeyed . Aquinas on Law & Ethics

American Legal Realism: 

American Legal Realism What the Decision makers actually do. Conduct of the Enforcers is the law. Law in action is more important than law on the books.

Sociological Jurisprudence: 

Sociological Jurisprudence Social Ordering in accordance with dominant values. Moral values influence positive law. Rightness of moral values does not matter, Law does and should follow values.

What is Law : 

What is Law Traditional --- A set of unchanging rules. Today’s Lawmakers: flexible tool public purposes Peacekeeping Checking Government Power Promote Economy Protect Environment

Week One Part II: 

Week One Part II The Regulation of Employment

Myths About Employment Regulation: 

Myths About Employment Regulation You have a right to your job Once you’re hired, your employer may not fire you except if there is a good reason As an employer, you may not terminate someone unless that worker does something “bad” If you have someone working for you whom you do not really get along with, you may not fire that person for that reason alone

Slide39: 

As an employer, you may have a rule that, if any employee reports the wrongdoings of the firm to the government, she or he will be terminated

Introduction to the Regulatory Environment: 

Introduction to the Regulatory Environment Freedom of market depends on freedom to contract Employers historically free to hire and discharge as they choose Is regulation necessary? Employment laws designed to give employees equal footing Economic forces may or may not protect against employment discrimination

Slide41: 

Why do employers need to understand regulation? Protection from legal action To promote fairness, equality and opportunity Most employer/employee relationships are contractual Noncompete agreements Arbitration agreements

Slide42: 

Workers’ compensation To protect employees from injury or illness resulting from employment Contains no-fault statutes to further protect employees from claims of employee negligence by employers Employers get freedom from lawsuits for workplace injuries

The Employment-At-Will Doctrine: 

The Employment-At-Will Doctrine Historically, both employer and employee free to leave at any time for any reason Equal opportunity legislation curtailed employers’ rights to hire and fire Legislation protected some classes Other workers began to feel more empowered

Exceptions to the At-Will Doctrine: 

Exceptions to the At-Will Doctrine Courts have created exceptions to at-will doctrine Employer breaches implied covenant of good faith or implied promise Termination in violation of public policy Employees can try to sue for wrongful discharge and may receive damages or reinstatement

Slide45: 

The Worker Adjustment and Retraining Notification Act (WARN) Requires 60 days’ notice to workers of plant closing or mass layoff for certain employers Exceptions permitted in certain circumstances

Violation of Public Policy: 

Violation of Public Policy Public policy determined by statutes or impact Employers’ actions must have been motivated by bad faith, malice or retaliation Usually involves employee refusal to violate a law, exercising a legal right or duty, or disclosure of employer violations (whistle-blowing)

Violation of Public Policy: 

Violation of Public Policy Breach of implied covenant to good faith and fair dealing implied in every contract Implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties Recognized in some states as exception to at-will doctrine

Slide48: 

Breach of implied contract A contract that is not expressed, but is created by other words or conduct of the parties involved Employers need to be careful of pre-employment interviews Employment policy manuals may form implied contract

Introduction to Wrongful Discharge: 

Introduction to Wrongful Discharge Judgments for wrongful discharge becoming more frequent Compensatory damages – given to compensate party for direct losses due to injury Punitive damages – given to punish wrongdoers and to deter similar conduct in the future Constructive discharge – employer creates environment in which employee has no option but to leave

Other Wrongful Discharge: 

Other Wrongful Discharge Based on tort liability Tort – violation of a duty other than under a contract Result of intentional and outrageous behavior of employer that causes emotional distress to employee May be limited by workers’ compensation laws May arise from defamation of employee or wrongful invasion of privacy

Model Uniform Employment Termination Act: 

Model Uniform Employment Termination Act An attempt to bring uniformity to state employment laws To promote predictability and uniformity Issued in 1991, but only one state (Montana) has adopted it

Management Considerations: 

Management Considerations Employers should strive for honesty and fairness Care should be taken in pre-employment interviews Employee appraisals should be job-related and should not contain overstatements Review all documentation as if it is a contract

Issues in Employment Law: 

Issues in Employment Law Employer Testing & Surveillance Drug Testing Health Screening Genetic Testing Polygraph Testing On-site Monitoring Computer Monitoring Phone Recording

Issues in Employment Law: 

Issues in Employment Law Reasonable Accommodation Religion Americans with Disability Parents FMLA

Issues in Employment Law: 

Issues in Employment Law OSHA Homeland Security Liability of Employers for Terrorist Attacks Violence in the Workplace Tort Liability

Just a taste of the issues : 

Just a taste of the issues We will explore these and much more during the next five weeks.