WORKER PROTECTION LAWS
Who needs protection—the employer or the employee?
In the past, the dominant contractual form the employment relationship has taken has been found in
This doctrine assumes that given equal bargaining power, and absent
express or implied agreement to the contrary, either the employee or employer may end the relationship.
This termination can come about at any time, for any reason, bilaterally or unilaterally.
The doctrine has
long been under fire because of being myopic on two main scores:
it presumes equality of bargaining
power between the employer and employee and that the employment relationship is a totally private
contractual matter between the contracting parties.
Recent cases and legislative enactments have greatly eroded the doctrine.
On the legislative front, a
number of states have decided that public policy interests in favor of certain kinds of activities must take
precedence over the employer/employee relationship.
Examples would include voting rights,
antidiscrimination measures, whistleblower protections, and employee health and safety protections.
addition, a number of courts have seen fit to interpret employer handbooks, written and oral job policies,
and other acts as indicia of an implied contract between the employer and employee.
So what may have
appeared originally to be the employee's economic ball and chain has also become the employer's.
The simple truth is that there is a growing involvement of government at every step of the
employer/employee relationship. It sets the ground rules for hiring, working conditions, paying for harm,
termination, and ultimate payment of pensions and or death benefits.
It all has come a long way from the
simplistic and archaic notion that the employment contract is only the business of the immediate parties
In fact, many statutes protect the employment relationship by insuring a minimum wage, a premium
for overtime, safe working conditions and, hopefully, a drug free environment.
Are these statutes good or
bad for business?
That remains to be seen.
II. Hypothetical Multi-Issue Essay Question
Mr. Quincy Harpie has a problem.
As a matter of fact, he has a lot of problems.
He is chronically
complaining about all sort of illnesses, both actual and perceived.
His mother was never proud of him
and kicked him out of the house at age thirty-two.
Finally Mr. Harpie had to face reality and get a job.
He found his first job with Mega Widgets Corporation in Backwater as a crystal widget assembler.
Two weeks into the job, he complained of severe backaches and sought worker compensation for his back
He was awarded his claim of partial disability and proceeded to stay at home while seeking