C241 - CHAPTER 10

exceptions to the employment at will doctrine?

- Contract Theory: does the employment manual create an implied contract? - Tort Theory: was the discharge of employment abusive in procedure (emotional distress/defamation)? - Public Policy: does the discharge of employment violate a fundamental public policy of the jurisdiction (whistle-blowing)? Exceptions are based on contract theory, tort theory, and public policy.

National Labor Relations Act- employer practices as unfair to labor:

1. Interference with the efforts of employees to form, join, or assist labor organizations or to engage in concerted activities for their mutual aid or protection. 2. An employer's domination of a labor organization or contribution of financial or other support to it. 3. Discrimination in the hiring of or the awarding of tenure to employees for reason of union affiliation. 4. Discrimination against employees for filing charges under the act or giving testimony under the act. 5. Refusal to bargain collectively with the duly designated representative of the employees.

Social Security and Medicare?

1. Social Security provides for old-age (retirement), survivors', and disability insurance to help pay for benefits that will partially make up for the employees loss of income. 2. Medicare is a federal government health insurance program administered by the Social Security Administration for people 65 or older and those disabled. Federal and state governments participate in insurance programs designed to protect employees and their families from the financial impact of retirement, disability, death, hospitalization, and unemployment. The key federal law on this subject is the Social Security Act.

Occupational Safety and Health Act OSHA.

1. The act imposes on employers a general duty to keep the workplace safe. 2. has established specific safety standards that employers must follow depending on the industry. 3. EXAMPLE - regulations require the use of safety guards on certain mechanical equipment and set maximum levels of exposure to substances in the workplace that may be harmful to a worker's health.

State Workers' Compensation Laws - Recover benefits under state workers' compensation laws are:

1. The existence of an employment relationship. 2. An accidental injury that occurred on the job or in the course of employment, regardless of fault. (An injury that occurs while an employee is commuting to or from work usually is not covered because it did not occur on the job or in the course of employment.)

Worker Adjustment and Retraining Notification Act (WARN).

1. The purpose is to provide employees of large businesses with an advance notice of layoff or shutdown. 2. It also provides the federal and/or state government with notification so that they have the opportunity to provide resources, such as job training to displaced workers.

Family and Medical Leave Act FMLA. Eligible Reasons:

1. To care for an adopted or foster child within 1. To care for an adopted or foster child within one year of the time the child is placed with the employee. 2. To care for the employee's spouse, child, or parent who has a serious health condition. 3. If the employee suffers from a serious health condition and is unable to perform the essential functions of her or his job. 4. For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty. For instance, an employee can take leave to arrange for child care or to deal with financial or legal matters when a spouse is being deployed to Korea. In addition, an employee may take up to twenty-six weeks of military caregiver leave within a twelve-month period to care for a family member with a serious injury or illness incurred as a result of military duty.

Illegal Strikes.

1. Violent strikes. The use of violence (including the threat of violence) against management employees or substitute workers is illegal. 2. Massed picketing. If the strikers form a barrier and deny management or other nonunion workers access to the plant, the strike is illegal. 3. Sit-down strikes. Strikes in which employees simply stay in the plant without working are illegal. 4. No-strike clause. A strike may be illegal if it contravenes a no-strike clause that was in the previous collective bargaining agreement between the employer and the union. 5. Secondary boycotts. A secondary boycottsecondary boycottA union's refusal to work for, purchase from, or handle the products of a secondary employer, with whom the union has no dispute, for the purpose of forcing that employer to stop doing business with the primary employer, with whom the union has a labor dispute.is an illegal strike that is directed against someone other than the strikers' employer, such as the companies that sell materials to the employer.

Omnibus Budget Reconciliation Act COBRA.

1. prohibits an employer from eliminating a worker's medical, vision, or dental insurance on the voluntary or involuntary termination of the worker's employment. 2. A worker has sixty days (from the date that the group coverage would stop) to decide whether to continue with the employer's group insurance plan. 3. enables employees to continue healthcare coverage after their jobs have been terminated and they are no longer eligible for group coverage through the employer. 4. prohibits an employer form eliminating a worker's medical, vision, or dental.

Fair Labor Standards Act as it pertains to minimum wages.

1. provides that a minimum wage of $7.25 per hour must be paid to employees in covered industries. 2. If the state minimum wage is greater than the federal minimum wage, the state rate prevails. 3. When an employee receives tips while on the job, the employer is required to pay only $2.13 an hour in direct wages only if that amount, plus the tips received, equals at least the federal minimum wage. 4. If an employee's tips and direct wages do not equal the federal minimum wage, the employer must make up the difference.

Family and Medical Leave Act FMLA.

1. requires employers of 50 or more employees to provide an eligible employee with up to 12 weeks of unpaid family or medical leave during any 12 month period for a qualified event. Allow employees to take time off work for family or medical reasons.

"lockout."

A lockout occurs when the employer shuts down to prevent employees from working, typically because it cannot reach a collective bargaining agreement with the union. It is the employer's counterpart to a strike.

Exceptions Based on Tort Theory - exceptions to the employment at will doctrine.

Abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress or defamation. Theory of fraud when an employer made false promises to a prospective employee.

(WARN) Worker Adjustment and Retraining Notification Act . Applies and Requires.....fines

Applies to employers with at least one hundred full-time employees. It requires an employer to provide sixty days' notice before implementing a mass layoff or closing a plant that employs more than fifty full-time workers. A mass layoff is a layoff of at least one-third of the full-time employees at a particular job site. WARN Act can be fined up to $500 for each day of the violation.

Employee Privacy Protection.

Employees of private (nongovernment) employers have some privacy protection under tort law and state constitutions. In addition, state and federal statutes may limit an employer's conduct in certain respects. For instance, the Electronic Communications Privacy Act prohibits employers from intercepting an employee's personal electronic communications unless they are made on devices and systems furnished by the employer. Nonetheless, employers do have considerable leeway to monitor employees in the workplace. Private employers generally are free to use filtering software to block access to certain Web sites, such as sites containing sexually explicit images. The First Amendment's protection of free speech prevents only government employers from restraining speech by blocking Web sites

CLOSED SHOP - Labor Management Relations Act LMRA or Taft-Hartley Act of 1947

IS A FIRM THAT DOES NOT REQUIRE UNITION MEMBERSHIPT AS A PREREQUISITE FOR EMPLOYMENT BUT CAN AND USUALLY DOES, REQUIRE THAT WORKERS JOIN THE UNION AFTER A SPECIFIED AMOUNT OF TIME ON THE JOB). closed shop illegal.

prohibited unions from refusing to bargain with employers, engaging in certain types of picketing, and featherbedding (causing employers to hire more employees than necessary).

Labor Management Relations Act LMRA or Taft-Hartley Act of 1947

State Workers' Compensation Laws?

State Workers' Compensation Laws establish an administrative procedure for compensating employees injured on the job. Instead of suing, an injured worker files a claim with the state agency or board that administers local workers' compensation claims.

STEPS unions can be organized.

Step 1: have employees sign authorization cards, stating a desire to be represented by a certain union. If a majority is signed, the union organizers present the cards to the employer and ask for a formal recognition. The employer can approve or deny. Step 2: if the employer chooses not to voluntarily recognize the union, the union organizers must present the cards to the NLRB with a petition for election. have the workers sign authorization cards. If a majority of the workers sign authorization cards, the union organizers (unionizers) present the cards to the employer and ask for formal recognition of the union.

Affordable Care Act (Obamacare) and when it applies to businesses.

The ACA requires most employers with 50 or more full-time employees to offer health insurance benefits to its qualified employees. It also extends tax credits of up to 35% for employers who do offer health insurance benefits. Under the Affordable Care Act (ACA, commonly referred to as Obamacare), most employers with fifty or more full-time employees are required to offer health-insurance benefits. An employer who fails to provide health benefits as required under the statute can be fined up to $2,000 for each employee after the first thirty people. Any business offering health benefits to its employees (even if not legally required to do so) may be eligible for tax credits of up to 35 percent to offset the costs.

"collective bargaining."

The process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions.

The Right to Strike.

The right to strike is guaranteed by the NLRA, within limits. Strike activities, such as picketing, are protected by the free speech guarantee of the First Amendment to the U.S. Constitution. Persons who are not employees have a right to participate in picketing an employer. The NLRA also gives workers the right to refuse to cross a picket line of fellow workers who are engaged in a lawful strike. Employers are permitted to hire replacement workers to substitute for the striking workers.

The Walsh-Healy Act.

applies to U.S. government contracts. It requires that a minimum wage, as well as overtime pay at 1.5 times regular pay rates, to be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government.

Fair Labor Standards Act as it pertains to overtime.

employees must pay employees who work more than a 40 hour work week at least 1.5 times this regular pay rate for any time worked over 40 hours in the week. Certain executive and administrative employees are exempt.

National Labor Relations Act.

established the right of employees to engage in collective bargaining and to strike and also defines a number of employer practices as unfair to labor. One of the foremost statutes regulating labor is the National Labor Relations Act (NLRA) of 1935.

Health Insurance Portability and Accountability Act HIPPA.

establishes requirements for employers that offer health insurance to its employees. It also restricts the manner in which employers can collect, use, and disclose the health information of employees and their families. Under HIPAA, employers must give credit to employees for previous health coverage (including COBRA coverage) to decrease any waiting period before their coverage becomes effective.

Exceptions Based on Contract Theory -exceptions to the employment at will doctrine.

implied employment contract exists If the employee is fired outside the terms of the implied contract, he or she may succeed in an action for breach of contract even though no written employment contract exists.

"Employment at Will."

is a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.

UNION SHOP - Labor Management Relations Act LMRA or Taft-Hartley Act of 1947

is a firm that does not require union membership as a prerequisite for employment but can, and usually does, require that workers join the union after a specified amount of time on the job.

Immigration Reform and Control Act (IRCA) of 1986 and the Immigration Act of 1990.

it provided amnesty to certain groups of aliens living illegally in the United States at the time. It also established a system that sanctions employers that hire immigrants who lack work authorization.

Immigration Reform and Control Act?

makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in this country. I-9 Employment Verification.

Exceptions Based on Public Policy - exceptions to the employment at will doctrine.

most common exception employer's reason for firing the employee violates a fundamental public policy of the jurisdiction. Courts require that the public policy involved be expressed clearly in the statutory law governing the jurisdiction. The public-policy exception may apply to an employee who is discharged for whistleblowing (An employee's disclosure to government, the press, or upper-management authorities that the employer is engaged in unsafe or illegal activities).—that is, telling government authorities, upper-level managers, or the media that her or his employer is engaged in some unsafe or illegal activity.

purpose of the Immigration Act.

places a cap on the number of visas that can be issued to immigrants each year. Most work visas are set aside for workers who can be characterized as "persons of extraordinary ability," members of the professions holding advanced degrees, or other skilled workers or professionals. Often, U.S. businesses find that they cannot hire sufficient domestic workers with specialized skills. For this reason, U.S. immigration laws have long made provisions for businesses to hire specially qualified foreign workers. The Immigration Act of 1990 placed caps on the number of visas (entry permits) that can be issued to immigrants each year.

Genetic Information Nondiscrimination Act: Types of employee privacy acts.

prevents the improper use of genetic information by employers and during hiring, firing or promotion and for health insurance providers when calculating insurance premiums and determining coverage. More than half of employers engage in some form of electronic monitoring of their employees. Many employers review employees' e-mail, blogs, instant messages, and tweets, as well as their social media, smartphone, and Internet use. Employers may also video their employees at work, record and listen to their telephone conversations and voice mail, and read their text messages and social media posts.

Electronic Communications Privacy Act: Types of employee privacy acts.

prohibits employers from intercepting an employee's personal electronic communications unless they are made on devices and systems furnished by the employer.

Fair Labor Standards Act as it pertains to child labor.

prohibits oppressive child labor. 1. Children under 14 are allowed to do only certain types of work (examples include delivering newspapers, working for their parents, and working in the entertainment and limited agricultural industries). 2. Children 14-15 are allowed to work only in non-hazardous occupations. There are numerous restrictions on daily hours and how many days per week that can be worked. 3. Children 16-18 are not restricted in the amount of work that they can perform but cannot work in hazardous occupations. 4. These restrictions all fall away after age 18 when the person is legally considered an adult.

Davis-Bacon Act.

requires contractors and subcontractors of working on federal government projects to pay "prevailing wages" to employees.

Norris-LaGuardia Act.

restricts the power of Federal courts to issue injunctions against unions engaged in peaceful strikes. In effect, this act declared a national policy permitting employees to organize.

right-to-work laws - Labor Management Relations Act LMRA or Taft-Hartley Act of 1947

the act allowed individual states to pass their own right-to-work laws-(right-to-work laws-A state law providing that employees are not to be required to join a union as a condition of obtaining or retaining employment.)—laws making it illegal for union membership to be required for continued employment in any establishment. Thus, union shops are technically illegal in the twenty-four states that have right-to-work laws.

union cannot strike.

via violence, massed picketing (forming a barrier and preventing entry to the workplace), sit-down strikes (striking within the workplace), strikes that are a violation of a no-strike clause, and secondary boycotts (boycotting a supplier of the employer).

Labor Management Relations Act LMRA or Taft-Hartley Act of 1947.

was passed to proscribe certain unfair union practices, such as the closed shop(IS A FIRM THAT DOES NOT REQUIRE UNITION MEMBERSHIPT AS A PREREQUISITE FOR EMPLOYMENT BUT CAN AND USUALLY DOES, REQUIRE THAT WORKERS JOIN THE UNION AFTER A SPECIFIED AMOUNT OF TIME ON THE JOB). closed shop illegal.

union can strike.

when unable to come to an agreement through collective bargaining. These strikes can involve picketing by employees and non-employees. Non-picketing employees have the right to refuse to cross a legal picket line of fellow workers.