Tag: Employment Law

Paid Family Leave: Striking a Balance Between the Needs of Employees and Employers – Note by Anne Wells

From Volume 77, Number 5 (July 2004)
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Ten years after the Family and Medical Leave Act (“FMLA”) was signed into law, paid family leave emerged as the new focal point in the family rights movement. Paid family leave legislation has been proposed in twenty-eight states and momentum is growing. In September 2002, advocates of paid family leave celebrated their first victory. California became the first state in the nation to enact legislation guaranteeing pay to employees taking leave to care for an ill family member. This legislation propelled paid family leave into the national spotlight, sparking debate on both sides of the issue.

Paid family leave advocates argue that the benefit is a necessary response to demographic and cultural changes in the United States. Labor force participation of women with young children has increased dramatically in the past few decades. In 1998, 62% of women with children under three were working, compared to 34% in 1975. Further, the number of children living in single-parent families rose from 12% in 1970 to 28% in 1998. These changes have resulted in a declining share of children living with a parent who is available to care for them full-time. By 1998, only a quarter of all children had one parent staying at home while the other worked. As a result, balancing the demands of work and family has become more challenging, and advocates argue that paid family leave is of increasing importance for working Americans.

 

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The Cost of Older Workers: How the ADEA Has Been Interpreted to Allow Employers to Fire Older Employees Based on Cost Concerns – Article by Lee Franck

From Volume 76, Number 6 (September 2003)
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The Age Discrimination in Employment Act (“ADEA”) was enacted to promote the ability of older workers to compete in today’s marketplace. It recognized a disturbing change in the way that companies were treating older workers. Historically, older workers were regarded as a valuable commodity because of their skill and experience. The advance of the modern age brought about a shift in ideologies in corporate America. Older workers came to be considered a liability in the fast-paced business world. Congress drafted the ADEA to eliminate unfounded stereotypes of older workers as less productive and more expensive to employ. It gave statutory protection against discrimination to anyone over forty years of age.

 

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None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact – Note by Jason Bosch

From Volume 76, Number 5 (July 2003)
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At the beginning of the twentieth century, major American companies had entire departments staffed with hundreds of—sociological specialists who were charged with monitoring the private behavior of company employees—often in their homes—to make sure they did not drink too much, had appropriate sex lives, kept their houses clean, and used their leisure time properly. Worker privacy and autonomy has made tremendous advances since that time, but even today employers continue to take actions against employees whose off-the-job behavior they find objectionable. Recent examples of employee—offenses include cohabitating with a partner outside of marriage, smoking, drinking, motor-cycling, and even having a high cholesterol level.

The baseline presumption at common law is that employment is at the will of either party. Even with the modern dilution of this doctrine and the many exceptions that have been carved out by courts and by statute, employers still have the ability to discharge, or constructively discharge, an employee for doing anything not protected by a specific statute or not included in the nebulous protection against violations of—public policy. This broad deference to employers’ judgment in employment matters is a result of judicial reluctance and inability to deal with issues relating to business efficiency and job performance. At-will employment encourages the flexibility and freedom needed for managers to make efficient decisions that best help their businesses compete in the marketplace. Certainly there is a consensus that managers know much better than judges what policies are needed to foster peak performance from their workforce. However, employees should not have to relinquish autonomy over every aspect of their lives just to get or keep a job. Employers have a vested interest in controlling those aspects of employees’ lives that reasonably affect the employees’ performance on the job, but that does not justify giving employers carte blanche to control every aspect of their employees’ lives. This Note argues that employers should only be able to take employment actions against employees for behavior that sufficiently impacts legitimate business interests.

 

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