BLAW ch 28 summary

DEFAMATION

A current or former employee may sue his or her employer for defamation if the employer provides information to a third party that is untrue, irrespective of whether or not it relates to the employee's job performance. Such defamation is considered: Slander, if spoken. Libel, if written. Many states have enacted laws to shield employers from the risk of liability for defamation, provided the previous employer has a good-faith belief that the statements made in the reference are truthful.

WRONGFUL DISCHARGE

An employer's termination of an employee's employment in violation of the law or an employment contract.

Exceptions to the employment-at-will doctrine

Courts have made exceptions to the doctrine on the basis of contract theory, tort theory, and public policy. The public policy exception may sometimes apply to whistleblowers.

Invasion of privacy

Disclosing personal, irrelevant information about a former employee, irrespective of whether such information is true or false. An employer can safely disclose information about a current or former employee in the following areas: The employee's prior employment and educational history. The employee's character as such relates to the job (teamwork, leadership abilities, etc.). The employee's performance capabilities. The employer's willingness to rehire the employee.

PRIVACY ISSUES

Drug, medical, and genetic testing Polygraphs Workplace and personal possession searches Monitoring phone calls, computers, and emails Video surveillance and audio recording

State workers' compensation laws

Establish an administrative procedure for compensating workers who are injured in accidents that occur on the job, regardless of fault.

Labor-Management Reporting and Disclosure Act

Established an employee bill of rights and reporting requirements for union activities.

National Labor Relations Act

Established the rights of employees to engage in collective bargaining and to strike. It also defined specific employer practices as unfair to labor. The National Labor Relations Board (NLRB) was created to administer and enforce the act.

Fair Labor Standards Act

Extended wage and hour requirements to cover all employers whose activities affect interstate commerce plus certain other businesses. The act has specific requirements in regard to child labor, maximum hours, minimum wages, and overtime.

Typically, the employee handbook contains the following information:

History of the company Hiring procedures Hours of employment Payment of salaries Salary increments and promotions Termination procedures Benefits Leaves of absence Safety and security Miscellaneous policies

Doctrine of employment at will:

Just as an employee may choose to terminate his or her employment at any time he or she wishes, so too an employer terminate an employee's employment at any time for a good reason, a bad reason, or no reason at all. Early exceptions to the doctrine disallowed an employee from being terminated for: Jury duty service Being called to active duty in the military Whistleblowing Today, there are several reasons for which it would be illegal to terminate an employee.

Employee handbooks

Manuals that contain the many policies of the firm. In some states, the provisions contained in the handbook are considered a kind of contract between the employer and the employee. In other states, legislatures and courts have made it clear that employee handbooks are not to be construed as contracts

Unreasonable publicity of private life or facts

Medical information Affairs and personal relationships History of drug use Sexual abuse

Intrusion into private affairs

Must be unreasonable, unjustified, or unwarranted Employee must have reasonable expectation of privacy

NEGLIGENT MISREPRESENTATION

Occasionally, employers attempt to reduce their risk of liability in providing references by: Withholding negative reference information, and Simply not responding to reference requests. However, if a prospective employer hires an employee based on an incomplete reference, and then suffers damages that may have been avoided had the previous employer provided an accurate reference, the prospective employer may sue the previous employer for negligent misrepresentation.

OCCUPATIONAL SAFETY & HEALTH ACT

Occupational Safety and Health Act of 1970: This law was passed to promote safety and health in the workplace. The law created a federal agency, the Occupational Safety and Health Administration (OSHA), to administer its many provisions.

EMPLOYEE REFERENCES

Often, employers are asked to provide references for employees who are currently working for them or who have worked for them in the past. Employers need to be extremely careful as to how they respond to these requests. A negative reference can give rise to 3 kinds of lawsuits brought by current or former employees (or prospective employers). Invasion of privacy Defamation Negligent misrepresentation.

Labor Management Relations Act

Proscribes certain unfair union practices, such as the closed shop.

Norris-LaGuardia Act

Protects peaceful strikes, picketing, and boycotts.

Davis-Bacon Act

Requires contractors and subcontractors working on federal government construction projects to pay their employees "prevailing wages."

Occupational Safety and Health Act

Requires employers to meet specific safety and health standards that are established and enforced by the Occupational Safety and Health Administration (OSHA).

The Family and Medical Leave Act (FMLA)

Requires employers with fifty or more employees to provide employees with up to twelve weeks of unpaid leave (twenty-six weeks for military caregiver leave) during any twelve-month period. An eligible employee: May take family leave to care for a newborn baby, an adopted child, or a foster child. May take medical leave when the employee or the employee's spouse, child, or parent has a serious health condition requiring care. May take military caregiver leave to care for a family member with a serious injury or illness incurred as a result of military duty. May take qualifying exigency leave to handle specified nonmedical emergencies when a spouse, parent, or child is in, or called to, active military duty

Walsh-Healey Act

Requires firms that contract with federal agencies to pay their employees a minimum wage and overtime pay.

OSHA

Requires that companies maintain records of employee workrelated accidents and sicknesses and post data regarding these every February. Inspects workplaces to be certain that these worksites comply with safety and health standards and imposes penalties if it finds any violations. Can impose penalties ranging from fines to facility closings. In extreme cases, such as those in which deliberate and repeat violations result in a fatality, penalties may reach $500,000 plus prison time.

LABOR UNIONS

Since the 1930s, labor unions have played a vital role in both the U.S. economy and its politics. It is important to understand the rights under the law that pertain to employees, unions, and employers. These rights are protected by the National Labor Relations Board (NLRB), a federal agency responsible for administering laws relating to labor unions.

Employment contract:

Specifies that the employer agrees to pay, and the employee agrees to work, for a specified period of time at a specified salary. These contracts frequently have clauses related to maintaining confidentiality with respect to trade secrets, restrictive covenants, and agreements to arbitrate in the event of a dispute between the parties.

Drug Testing

Texas is NOT a state that limits an employers right to give you a drug test. Know your employers antidrug policy if they have one. They must get consent, but they can fire an employee for not consenting.

Affordable Care Act

The Affordable Care Act requires most employers with fifty or more full-time employees to offer health-insurance benefits. It also provides tax credits to employers who provide benefits even if they are not required to do so.

COBRA

The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers to give employees, on termination of employment, the option of continuing their medical, optical, or dental insurance coverage for a certain period at their own expense.

Privacy:

The ECPA of 1986 does offer protection, but the purpose was not for protection from your employer at work on a work computer. Telephone calls might be different though.

THE FAIR LABOR STANDARDS ACT OF 1938

The FLSA sets standards for: The minimum age an employee can be, The minimum wage an employee can earn, and The rate at which an employee is paid if he or she works more than a certain number of hours in a given workweek. Currently, the federal minimum wage is $7.25, and the overtime pay rate for employees who work more than 40 hours in a workweek is 1.5 times regular wages. Categories of employees excluded from coverage: (1) executives; (2) professional employees; and (3) outside sales associates.

FAMILY & MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) is a federal statute that provides eligible employees with the right to take up to 12 weeks of unpaid leave for: Personal medical reasons, or To care for a child, spouse, or parent. The FMLA applies to all employers who employee 50 or more employees To be eligible, an employee must have worked for his or her current employer for at least 1,250 hours in the previous year.

Unemployment insurance

The Federal Unemployment Tax Act (FUTA) created a system that provides unemployment compensation to eligible individuals. Employers are taxed to cover the costs.

WHAT IS FUTA?

The Federal Unemployment Tax Act (FUTA) passed in 1935 • It is a state system that provides unemployment compensation to those who are qualified and lose their job. • Do you pay into this like a retirement account? NO • Who pays for this benefit? Your employer through taxes

HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) establishes requirements for employer-sponsored group health plans. The plans must also comply with various safeguards to ensure the privacy of employees' health information.

Social Security and Medicare

The Social Security Act provides for old-age (retirement), survivors', and disability insurance. Both employers and employees must make contributions under the Federal Insurance Contributions Act (FICA). The Social Security Administration also administers Medicare, a health-insurance program for older or disabled persons.

ARBITRATION CLAUSES

The U.S. Supreme Court has ruled that arbitration clauses in employment contracts are enforceable provided the employee: Has signed the agreement. Has a reasonable time to file a claim. Has access to the same remedies that a court could provide. Has access to an arbitrator with expertise in employment law. Has the right to be represented by an attorney. Does not have to pay the cost of arbitration.

Private retirement plans

The federal Employee Retirement Income Security Act (ERISA) establishes standards for the management of employer-provided pension plans.

Collective bargaining—

The process by which labor and management negotiate the terms and conditions of employment (such as wages, benefits, and working conditions). The central legal right of a labor union is to engage in collective bargaining on the members' behalf.

WORKER SAFETY & HEALTH

There are numerous federal and state laws that serve to protect employees from accidents and sicknesses that are job-related. State Level Workers' compensation statutes, which pertain to how a worker may recover damages for work-related injuries and illnesses. Federal Level There are several statutes that require employers to maintain a safe and healthful work environment. The most important of these federal statutes is the Occupational Safety and Health Act of 1970

Employee privacy rights

Tort law, state constitutions, and federal and state statutes, as well as the U.S. Constitution, provide some protection for employees' privacy rights. Employer practices that have been challenged by employees as violations of their privacy rights include electronic monitoring, lie-detector tests, and drug testing.

employment at will doctrine

Under this common law doctrine, either party may terminate the employment relationship at any time and for any reason ("at will").

UNEMPLOYMENT BENEFITS

Unemployment insurance provides financial stability, in the form of unemployment compensation, to eligible employees who lose their jobs. A dual program of state and federal statutes create a system whereby employers are required to pay federal and state unemployment insurance taxes. Generally, in order for employees to be eligible to receive unemployment compensation, they must have: Lost their job through no fault of their own, and They must meet the minimum state requirements for wages or time worked during an established period of time.

Union organization

Union campaign activities and elections must comply with the requirements established by federal labor laws and the NLRB.

SURVEILLANCE

Video surveillance is okay except in private spaces • No audio • No notice or consent required

LABOR LAWS

Wagner Act of 1935 (aka NLRA) - Adopted to encourage the formation of labor unions and provide for collective bargaining between employers and unions. Also, created the NLRB. • Taft-Hartley Act of 1947 - Passed to curtail some of the powers the unions had acquired under the Wagner Act. • Landrum-Griffin Act of 1959 - Governs the internal operations of labor unions. • National Labor Relations Board (NLRB) - An administrative agency formed to interpret and enforce the National Labor Relations Act. • Labor Union- Know what labor unions are and words like strike, boycott, picket, etc.

Strikes—

When collective bargaining reaches an impasse, union members may use their ultimate weapon in labor-management struggles—the strike. A strike occurs when unionized workers leave their jobs, refuse to work, and typically picket the employer's workplace.

Wrongful discharge

Whenever an employer discharges an employee in violation of an employment contract or statutory law protecting employees, the employee may bring a suit for wrongful discharge.

WORKER'S COMPENSATION

Workers' compensation: A type of insurance that provides that employees may recover damages for work-related injuries and illnesses without having to prove negligence on the part of the employer. Since workers' compensation is almost mandatory and provides employees with nearly automatic recovery, it is considered to be the exclusive remedy. Exclusive remedy: An employee who sustains a work-related injury or illness can recover damages only through workers' compensation and may not file a lawsuit against his or her employer. Employees may sue their employers if it was the employer's intentional or grossly negligent conduct that caused the injury or illness.

Electronics:

You do NOT have a reasonable expectation of privacy when using your employers' email system, even during non-working hours!! They don't have to warn you or tell you they are monitoring you.

MONITORING PHONES, COMPUTERS

• Notice of monitoring means no expectation of privacy • Employer email • Facebook • Personal email

RECORDING PHONE CONVERSATIONS

• Texas: One party consent • Illegal t