«EMPLOYEE RIGHTS 1 (People’s Law School) I. Types of Employment: A. Private Sector Employment: 1. “Golden Rule” Employment”At-will” ...»
Loudermill applied the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The Loudermill Court emphasized that "the pretermination 'hearing,' though necessary, need not be elaborate." 470 U.S. at 545, 105 S.Ct. at 1495.
The Supreme Court then held:
The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." See Arnett v. Kennedy, 416 U.S., at 170-171, 94 S.Ct., at 1652-1653 (opinion of POWELL, J.); id., at 195-196, 94 S.Ct., at 1664opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S., at 581, 95 S.Ct.,
at 740. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.
Id. at 546, 105 S.Ct. at 1495.
A collective bargaining agreement is a contract between an employer and a union. The collective bargaining process begins with negotiations between representatives of a union and the employer with respect to the terms and conditions of employment for the employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions. If successful, the negotiations culminate with a written agreement.
2. What is an “agency shop”?
An agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs. The fee paid by non-union members under the agency shop is known as the "agency fee.”
3. What is a “closed shop”?
A closed shop is a form of union security agreement under which the employer agrees to only hire union members, and employees must remain members of the union at all times in order to remain employed. In 1947 the Taft-Hartley Act outlawed the closed shop. However, the Taft-Harley Act but permits the union shop. A union shop is a employer who has a contract with a labor union which requires employees to be or become members of the union within a specific time. The union shop is legal in all states except in states, like Nevada, that have passed "right-to-work laws", in which case even the union shop is illegal. An employer may not lawfully agree with a union to hire only union members; it may, on the other hand, agree to require employees to join the union or pay the equivalent of union dues to it after a set period of time.
4. Right to Work:
Section 14(b) of the Taft-Hartley Act authorizes individual states (but not local governments, such as cities or counties) to outlaw the union shop and agency shop for employees working in their jurisdictions. Under the "open shop" rule, an employee cannot be compelled to join or pay the equivalent of dues to a union, nor can the
employee be fired if he or she joins the union. In other words, the employee has the right to work, regardless of whether or not he or she is a member or financial contributor to such a union.
II. Public Policy Protections:
There are three primary federal anti-discrimination statutes which apply to private employers: 1) the Civil Rights Act of 1964 as amended; 2) the Age Discrimination in Employment Act and 3) the Americans with Disabilities Act. In addition, under limited circumstances private employers may be subject to damages under the Rehabilitation Act of 1973. Finally, Nevada has its own statutes which prohibit discrimination and harassment. See Nev. R. Stat. 613.
The Civil Rights Act of 1964 states that it is unlawful for an employer or employment agency to fail or refuse to hire or to discharge any individual or otherwise to discriminate against them with respect to their compensation, terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a) & (b). Furthermore it is unlawful for a labor organization to exclude or to expel from its membership or otherwise to discriminate against any individual on the basis of his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(c).
The Age Discrimination in Employment Act states that it is it is unlawful for an employer or employment agency to fail or refuse to hire or to discharge any individual or otherwise to discriminate against them with respect to their compensation, terms, conditions, or privileges of employment, because of the individual’s age. 29 U.S.C. § 623(a) & (b). Furthermore it is unlawful for a labor organization to exclude or to expel from its membership or otherwise to discriminate against any individual on the basis of his age. 29 U.S.C. § 623(c).
The Americans with Disabilities Act states that it is unlawful for an employer to discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment. 42 U.S.C. § 12112(a). The ADA also states:
As used in subsection (a) of this section, the term "discriminate" includeslimiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement or relationship that
has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
(3) utilizing standards, criteria, or methods of administration A) that have the effect of discrimination on the basis of disability; or (B) that perpetuate the discrimination of others who are subject to common administrative control;
(4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; (6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and (6) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
42 U.S.C. § 12112(b).
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 provides in
pertinent part that:
No otherwise qualified individual with a disability in the United States, as defined in Section 706(8) of this title, shall, solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance...
29 U.S.C. § 794. Section 706(8) of the Rehabilitation Act of 1973 defines an individual
with a disability as:
[A]ny person who (I) has a physical or mental impairment which substantially limits one or more of such persons's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
29 U.S.C. § 706(8)(B).
Furthermore, all employers, with fifteen or more employees, and all public employers in the State of Nevada are covered by Nevada Revised Statute 613.330
1. Except as otherwise provided in NRS 613.350, it is an unlawful employment
practice for an employer:
(a) To fail or refuse to hire or to discharge any person, or otherwise to discriminate against any person with respect to his compensation, terms, conditions or privileges of employment, because of his race, color, religion, sex, sexual orientation, age, disability or national origin; or (b) To limit, segregate or classify an employee in a way which would deprive or tend to deprive him of employment opportunities or otherwise adversely affect his status as an employee, because of his race, color, religion, sex, sexual orientation, age, disability or national origin.
2. It is an unlawful employment practice for an employment agency to:
(a) Fail or refuse to refer for employment, or otherwise to discriminate against, any person because of the race, color, religion, sex, sexual orientation, age, disability or national origin of that person; or (b) Classify or refer for employment any person on the basis of the race, color, religion, sex, sexual orientation, age, disability or national origin of that person.
3. It is an unlawful employment practice for a labor organization:
(a) To exclude or to expel from its membership, or otherwise to discriminate against, any person because of his race, color, religion, sex, sexual orientation, age, disability or national origin;
(b) To limit, segregate or classify its membership, or to classify or fail or refuse to refer for employment any person, in any way which would deprive or tend to deprive him of employment opportunities, or would limit his employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of his race, color, religion, sex, sexual orientation, age, disability or national origin; or (c) To cause or attempt to cause an employer to discriminate against any Lyons Law Firm th 512 South 8 Street Las Vegas, Nevada 89101 Employee Rights Peoples Law School Page 18 person in violation of this section.
4. It is an unlawful employment practice for any employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including, without limitation, on-the-job training programs, to discriminate against any person because of his race, color, religion, sex, sexual orientation, age, disability or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
5. It is an unlawful employment practice for any employer, employment agency, labor organization or joint labor-management committee to discriminate against a person with physical, aural or visual disabilities by interfering, directly or indirectly, with the use of an aid or appliance, including, without limitation, a guide dog, hearing dog, helping dog or other service animal, by such a person.
6. It is an unlawful employment practice for an employer, directly or indirectly, to refuse to permit an employee with a visual or aural disability to keep his guide dog, hearing dog or other service animal with him at all times in his place of employment.
7. For the purposes of this section, the terms “guide dog,” “hearing dog,” “helping dog” and “service animal” have the meanings ascribed to them respectively in NRS 426.075, 426.081, 426.083 and 426.097.
In ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006), the Ninth
Circuit Court of Appeals stated:
"The government's right to limit expressive activity in a public forum `is "sharply" circumscribed.'" S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir.) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)), amended by 160 F.3d 541 (9th Cir.1998).
"Thus, governmental regulation of speech in a traditional public forum `is subject to the highest scrutiny.'" Id. (quoting Int'l Soc'y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) ("ISKCON")).
The government bears "an extraordinarily heavy burden" when it seeks to regulate free speech in a traditional public forum. ACLU I, 333 F.3d at 1098 (internal quotation marks omitted).
We reiterate our concern, expressed in our prior published opinion on Las Vegas's restrictions on free speech in the Fremont Street Experience, that "as society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place. `We think this is particularly true with respect to downtown public spaces conducive to expressive activities.'" Id. at 1097 (quoting First Unitarian Church v.
Salt Lake City Corp., 308 F.3d 1114, 1131 (10th Cir. 2002)) (alteration, citation, and internal quotation marks omitted).
The Court then stated: