Employment-Law-Harper-Fall06

Employment-Law-Harper-Fall06 - EMPLOYMENT LAW OUTLINE WHY...

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E MPLOYMENT L AW O UTLINE W HY R EGULATE THE E MPLOYMENT R ELATIONSHIP A. Regulations of the employment relationship include requiring minimum benefits, putting restrictions on what ER and EE can agree to, etc. B. Possible reasons to regulate employment relationship: 1. Unequal bargaining power i. ER usually in stronger bargaining position, especially w/r/t unskilled EEs. ii. Could EEs still get what they wanted, just at a higher price? Depends. iii. This reason doesn’t easily answer the question. 2. Distributive reasons i. Make sure that EEs get more money/benefits b/c we value work? ii. Societal desire to redistribute wealth from ERs to EEs. 3. Externalities – both costs and benefits i. Free market imposes numerous external costs on society ii. iii. Regulation can provide external benefits as well as external costs – can provide benefits to society as a whole. Exs: 1. Whistleblowing statute that protects EE who brings illegal/harmful activity to public notice 2. Preventing discharge in violation of public policy 4. Paternalism i. Belief that EEs may not understand all of the possible problems they could face w/ ERs ii. Since EE may never bargain for rights that he doesn’t know he needs, we should require ERs to give them. 5. Market imperfections i. Asymmetry of information b/t ER and EE ii. Monopoly position of certain ERs (goes to unequal bargaining) iii. Mobility restrictions. EEs can’t really travel anywhere to work. iv. Collective action problems 6. Moral values of society - minimum values that we believe are necessary: i. Working in a safe environment ii. Getting a fair wage iii. Preventing discrimination C. Antidiscrimination laws as a model of why we regulate 1. Why do we proscribe discrimination based on certain categories, as outlined by Title VII, ADEA and ADA? i. Impact on victim individually 1. Look to the impact on individual of discriminating against him b/c of that particular reason. 2. Is discrimination based on this reason going to prevent him from getting a job somewhere else? Ex: difference b/t NYU discriminating against race vs. left-handedness
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ii. Impact on victim status group 1. These categories particularly harm a group of people 2. Even though statues proscribe discrimination against individuals, discrimination against an individual can cause harm to a group 3. Does this make a difference b/c of history of discrimination? iii. Irrelevance 1. These categories are irrelevant to successfully performing job 2. But we don’t prevent discrimination against left-handedness and that is irrelevant as well 3. Really goes towards history of discrimination. iv.
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Employment-Law-Harper-Fall06 - EMPLOYMENT LAW OUTLINE WHY...

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