Chapter 11: Employment Regulation and Labor Law

What factors are used to determine if an employee is exempt?

*education or skill level or certifications required for the position, salary level, and compensation method. *amount of physical labor required. *amount of repetitive tasks. *degree of supervision required by the employer. *generally, exemptions include employees whose responsibilities are primarily executive, administrative, or professional

What is the most important aspect of the worker's compensation system?

*employees are paid regardless of any issues related to fault or negligence of the employee, the employer, or any third party. *an injured employee is assured continuous income income for an injury that requires him/her to stop working.

Under what conditions, is an employer allowed to issue a polygraph test?

*employers are allowed to issue polygraph test when investigating a loss attributable to theft or if the employee is in the security or pharmaceutical industry. *the law does not apply if the employer is federal, state, or local government

What are the FMLA protections related to job security?

*employers are restricted from taking or threatening any adverse job action against the employee because of FMLA leave. *employee must be guaranteed employment in the same or similar job at the same pay rate. *FMLA employee must be reinstated immediately upon the employee's notification that the leave is over.

What happens if the employer fails to comply with the WARN Act?

*employers are subject to pay damages and attorney's fees to displaced workers.

COBRA

*employers must provide continuous coverage to any employee who has been terminated even if the worker was terminated for cause. *employers must provide the exact same health care coverage for up to 18 months. *employers are not required to pay for the coverage.

Who is protected under the FMLA?

*employers who have 50 or more full-time employees and only full-time employees who have been employed for at least one year are protected. *employers must provide up to 12 weeks of unpaid leave to employees for the purposes of caring for family medical matters during any 12-month period. *Examples: newborn or newly adopted baby; a serious health issue affecting the employee, spouse, child, or parent

What OSHA provisions apply to all employers?

*employers with 11 or more employees are required to maintain records about the company's safety records and to document the investigation of any accidents. *reports must be kept current and prepared for inspection by the administration. *employer is required to notify the administration if 3 or more employees are hospitalized in one event or an employee is killed (must notify admin within 8 business hours)

If an employer has violated safety standards, what type of enforcement action is the administration allowed to take?

*fines. *cease and desist orders. *criminal charges in egregious cases.

Are employers obligated to rehire striking workers or provide retroactive pay?

*if a union member is on strike for economic reasons, then the employer is not obligated to rehire the worker. *if a union member is on strike for unfair labor practices, then the employer has to rehire the worker with retropay

How does the Americans with Disabilities Act protect employees from drug testing?

*if testing uncovers a former drug addition under certain circumstances the employee is protected from discipline or termination under the ADA

Under what circumstances are certain occupations restricted from striking?

*if the strike would significantly jeopardize public health or safety. *the NLRA also provides guidelines on when, where, and how a strike should be carried out

What is the Social Security Act of 1935?

*it provides a broad set of benefits for workers that are funded by mandatory employment taxes paid by both employer and employee into a trust fund administered by the federal government. *employment taxes are mandated by the Federal Insurance Contributions Act (FICA). *benefits are based on the number of credits earned during the employee's working life.

What is the Federal Unemployment Tax Act (FUTA)?

*it provides limited payments to workers who had been temporarily or permanently terminated from employment through no fault of their own. *FUTA establishes a state-administered fund to provide payments to workers who have suffered sudden job loss. *funded by employment taxes shared by employer and employee.

What is HIPPA?

*it sets administrative rules and standards designed to protect employee medical information and records from disclosure to a third part.

What is the Family Medical Leave Act?

*it sets out the basic protections for workers who need a brief leave from work to care for themselves or an immediate family member. *some states allow for additional time periods or provide additional medical leave protections

What is the employer's options when faced with a strike?

*may employ a lockout: shutting down the business and preventing employees from working. putting pressure on the union members. *if an employer lacks a legitimate business reason for a lockout, it is considered an unfair labor practice. *employers may hire nonunion replacement workers to continue operations during a strike. employers may retain replacement workers or discharge them

What are the provisions of the FLSA?

*minimum wage. *a maximum 40 hour work week. *overtime pay. *restrictions on child labor (occupations/hours)

Are employers required to provide employees with health care?

*no; however most companies offer health care insurance plans as a competitive matter *usually the employer and employee share in the cost.

What is the Health Care and Education Reconciliation Act of 2010?

*offers small business owners (<25 full-time employees) immediate tax incentives if they offer health care coverage to their employees and pay at least 50% of the total costs for their employees' coverage. *individuals not covered under their employer's plan are required to purchase health insurance through a health care exchange set up by the individual states.

What triggers the WARN act?

*permanent terminations. *layoffs for six months or longer. or. *when the company imposes a reduction in work time of 50% or more for 6 months or longer

Who governs employee privacy protection from use of regular or random drug or alcohol tests?

*primarily governed by state statutes (vary considerably).

What are some examples of employees who are not covered by the FLSA?

*professionals requiring specialized study and certifications (attorney's, physicians, accountants). *management or supervisory employees. *computer programmers and engineers. *employees subject to certain certification and regulatory requirements (insurance adjusters or dental hygienist)

What is the Electronic Communications Privacy Act (ECPA)?

*protections provided to employees for telephone calls and voicemail. *employers are restricted from monitoring an employee's personal calls without their consent. *employers are also restricted from accessing an employee's voicemail

What type of authority does the OSHA administration have?

*routing or unscheduled worksite inspections. *investigating complaints made by employees alleging that an employer violated safety standards

What are the two largest union organizations?

*the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). *Changes to Win Federation

What are the limits of the ECPA?

*the business-extension exception permits an employer to monitor employee electronic communications on company-owned devices as long as it is in the ordinary course of business. *the ECPA allows an employer to avoid liability if the employee consents to the monitoring (some use it as a condition of employment)

What is the National Labor Relations Act (NLRA)?

*the centerpiece of labor-management regulation statutes. *it provides general protections to rights of worker to organize, engage in collective bargaining, and use economic weapons in the collective bargaining process. *the worker must be a current employee

What is a retirement savings account?

*the employee commits to saving a certain percentage of base pay in an account that is directly controlled by the employee *the employee can allocate savings to various investment options ranging from high to low risk. *some employers match the employee's contribution based on a percentage of the employee's pay. *the major benefit is that the earnings are not taxed until the employee makes retirement withdrawls

What is a pension plan?

*the employer promises to pay a monthly sum to employees who retire from the company after a certain number of years of service. *the amount is normally based on the length of service and the employee's final salary rate at the date of retirement

What are the eligibility requirements for FMLA leave?

*the health condition must require continued treatments by a health care provider. *severe enough to render the person unable to care for themselves for three consecutive days. *all conditions must be properly documented by a physician

What criteria must be met to qualify for worker's compensation?

*the injury was accidental. *the injury occurred within the course of employment. *definitions vary by state, but courts usually rule in favor of the employee

The NLRA requires both parties to enter into good faith negotiations. What does that mean?

*the parties are obligated to demonstrate that they are engaged in moving toward an agreement. *any tactics to delay, stall, or hinder the process is considered unfair labor practices

What is collective bargaining?

*the process of negotiating an agreement on behalf of an entire workforce instead of individuals negotiating privately on their own behalf (or not at all)

What is collective bargaining?

*the process of negotiating terms and conditions of employment for employees in the collective bargaining unit. *if a collective bargaining agreement is reached, the parties enter into a binding contract. *the NLRA sets out which terms can and cannot be negotiated

What prevents an employee from filing a lawsuit?

*the prospect of immediate compensation and the uncertainties and delays inherent in litigation

What is the FLSA standard regarding a 40 hour work week?

*the standard workweek is 40 hours per week in a 7 day period. *any hours worked over the standard is considered overtime compensation paid at time and a half. *all wage and hour laws assume a base unit of one week. *to earn overtime a work week has to exceed 40 hours

What happens when an employee files a union grievance?

*the union is given the exclusive authority to invoke the arbitration provisions of the agreement and it conduct the proceedings on behalf of the employee. *the arbitrator's award is subject to review by the court. *courts give great deference to arbitrators and will only intervene in the case is unfair

What does the worker's compensation statute entail?

*they establish a structure for an injured employee to be compensated through a statutorily mandated insurance program as the exclusive remedy for workplace injuries or illnesses. *statutes require the establishment of a system for processing claims through the state worker's compensation board and compensation is funded through employer-paid insurance policies. *employees with job-related injuries or illnesses are paid based on a percentage of the employee's salary at the time of occurrence.

The Worker Adjustment and Retraining Notification Act (WARN) requires employers to provide advance notice to employees if...

*they intend to close down a facility. or *they intend to lay off 50 or more workers

What must someone do to receive unemployment benefits?

*they must actively seek work and retraining in a different field if necessary. *eligibility requires vary by state. *not intended to reward an employee who was terminated for cause

Why was the Labor-Management Reporting and Disclosure Act created?

*to establish a system of reporting and checks intended to uncover and prevent fraud and corruption among union officials. *it regulates the internal operating procedures of a union including election processes, procedures, and rights of members at membership and officer meetings. *requires extensive financial disclosures by unions. *gives the NLRB additional oversight jurisdiction for internal union governance.

For what reason would an employer employ elaborate monitoring measures?

*to limit their risk of vicarious liability in areas of defamation and employment discrimination

What are the objectives of the OSHA regulation?

*to make the workplace as safe as possible for workers engaged in business operations through. *setting of national safety standards. *mandating information disclosure and warning of hazardous areas. *record keeping and reporting requirements. *imposing a general duty upon employers to keep a workplace reasonably safe.

ERISA authorizes the Department of Labor to perform what activities?

*to monitor pension and retirement savings plan administration. *the department oversees the Labor Management Services Administration to implement, administer, and enforce ERISA

What are some ways employers monitor computer usage?

*track web sites visited by their employees. *block employees from visiting specific internet sites. *limit the amount of time an employee may spend on a specific web site. *filters, key strokes, recording software

What are the two exceptions to worker's compensation laws?

*when an employer has engaged in actions that intentionally created conditions that resulted in harm. *when an employer acts with a reckless disregard for the safety of its employees. *workers may bypass the worker's compensation system and sue the employer for a full recovery including punitive damages

When are strikes normally carried out?

*when employer-union negotiations have stalled and extreme action is necessary to continue the bargaining process. *members will vote for a "strike authorization" if the employer refuses to continue the bargaining process

When is are employees allowed to walk off the job when faced with a hazardous condition?

*when the employee faces a condition which he reasonably believes will result in serious injury or death. *the context makes it impractical for the employee to contact administration inspectors

What are types of illegal work stoppages and boycotts?

*wildcat strike: going on strike for short bursts without union authorization (group calls out sick). *Sit-in strike: occupation of an employer's facility. *Strike during a cooling-off period: any strike during the 80 day strike prohibition by the federal court *Secondary boycotts: to increase pressure on an employer by targeting a third party (vendor or customer)

How is the union member affected by the strike?

*workers are cut off from pay, medical benefits, and other compensation until the strike is over

Do workers have the right to engage in picketing at the employer's facility?

*yes, but they are not entitled to picket on the company's property. *must be peaceful without interfering with the operations of the employer. *cannot be used to prevent or harass customers or nonstriking employees

Under the FLSA, are children under the age of 18 allowed to work?

*yes, under certain restrictions. *under 14: no employment except newspaper sale and delivery *14-15: limited hours; no hazardous jobs *16-17: unlimited hours; no dangerous jobs

Are union organizers allowed to campaign?

*yes. they can distribute flyers and leaflets to employees. *employers have the right to limit any union campaign activities that take place on the employer's property and/or during the regular workday as long as it is based on business reasons

How would a group of employees start a union?

*by having other workers sign authorization cards indicating that they wish to form a local union and/or to join an existing union. *at least 30% of the authorization cards must be signed by employees in a certain bargaining unit. *employees may bargain collectively only if they have a mutuality of interests (similar, non-management jobs, work sites, and conditions). *bargaining units may be recognized as employees of a single employer or those of an entire region or industry

What type of workers are usually exempt from worker's compensation benefits?

*domestic workers. *temporary or seasonal workers

Under what circumstances, is child labor not covered under the FLSA?

* family agriculture jobs. *child actors

If an employer establishes either a pension plan or a retirement account, the employer is subject to what federal statute?

*Employee Retirement Income Security Act (ERISA). *requires employers to make disclosures regarding investment risk and to provide plan transparency for beneficiaries. *ERISA sets rules for conflict of interest and imposes fiduciary standards for investing and managing plans. *employers must adhere to record-keeping regulations and treat all employees in accordance with a set of standardized vesting rules.

What two federal statutes regulate the administration of the health plan?

*Health Insurance Portability and Accountability Act (HIPPA). *the Consolidated Omnibus Budget Reconciliation Act (COBRA)

What are the two types of retirement benefits are offered by employers?

*a pension. *a tax-deferred retirement savings account (401K)

Created by a provision in the NLRA, the National Labor Relations Board (NLRB) is responsible for...

*administering, implementing, and enforcing the law's wide-sweeping provisions. *it also monitors union elections for fraud and sets guidelines for employers and unions with respect to fair labor practices

What is the Labor Management Relations Act?

*an ammendment of the NLRA that prohibits employers and employees from agreeing that union membership is required as a condition for employment.

What is a key employee?

*an employee whose salary range in the top 10% of all salaries in the company. *employer does not have to reinstate a key employee if reinstatement would cause a "substantial and grievous economic injury". *employers must notify the employee that they are a key employee and the limits of the FMLA protections

What happens after 30% of the bargaining unit have signed the authorization cards?

*authorization cards are filed with the NLRB. *the NLRB sets a date for an election (vote to elect or reject unionization).

The WARN Act applies to employers with how many employees?

100 or more full-time employees.

Under the WARN Act, how much notice must the employer give each employee of the closings/layoffs?

60 days written notice

What is the centerpiece for wage and hour protections?

The Fair Labor Standards Act (FLSA)

Who sets the procedures for forming a union?

NLRA

What is required to certify the collective bargaining unit as a union?

a simple majority of pro-union votes. *the employer must recognize the union as the exclusive bargaining representative of the workers and is required to bargain in good faith

If it is not clear as to whether or not an employee is exempt, should the employer classify them as exempt or covered?

covered; the consequences for miss-classification are severe (fines from the FLSA and back pay)

What employees are not covered under FLSA?

exempt employees are not covered under the FLSA

What happens if OSHA is notified that an employee has been killed or 3 or more employees have been hospitalized?

the administration dispatches an inspector to investigate the accident

What might cause the NLRB to set aside any election results?

misconduct during a campaign constituting unfair labor practice

Does the Employee Polygraph Protection Act permit private sector employers to require a polygraph test as a condition of employment?

no. employers cannot require a polygraph test as a condition of employment. *employers are prohibited from taking or threatening action against current employees who refuse to take the test.

Can an employee file a negligence lawsuit after accepting worker compensation benefits?

no. in exchange for compensation benefits, employees are barred from pursuing a negligence lawsuit related to the injury against the employer.

Are employers required to establish retirement accounts for their employees?

no; however they are commonly used to attract and retain high-quality employees

Is an employees activities on an employer's computer protected by privacy laws?

nope!

If the union decides not to issue a grievance can the individual union member pursue a lawsuit against the employer?

normally, the union member is not authorized to file a suit on their own

Why are exempt employees not covered by the FLSA?

professional and management level employees are expected to have a certain level of bargaining power

Which workers are exempt from the NLRA?

railroad and airline employees

What department administers and enforces the FLSA and its regulations?

the Department of Labor

Who administers the FMLA?

the Department of Labor

Who does the Occupational Safety and Health Administration report to?

the Department of Labor

Which law made it illegal for employers to agree with unions that union membership be required for continuing employment?

the right-to-work law

What is the underlying concept of the FLSA?

to level the playing field for employees who were in an untenable bargaining position with employers

What is the purpose of the Occupational Safety and Health Act (OSHA)?

to prevent workplace injuries

Are union members allowed to publicly boycott the employer's products or services?

yes

Does OSHA provide whistleblower protection?

yes

Does OSHA's coverage extend to federal, state, and local goverments?

yes

Does the SSA provide benefits when a worker is disabled or survivor benefits for spouses and children upon the death of a worker?

yes

Does the WARN act require the employer to notify the local government?

yes

Does the employer have to maintain the employee's health care benefits?

yes

Can the President of the United States suspend a strike?

yes, for up to 80 days in times of national emergency

Are states permitted to set a higher minimum wage?

yes, the state can set a higher minimum wage for employees working within a state's jurisdictional boundries

Are offsite injuries covered under worker's compensation?

yes. as long as it is sufficiently related to the worker's employment

Can employees be compensated for commuting time if their employer requires them to perform a significant amount of work during the commute

yes; however the courts apply this provision relatively narrowly

Can employers campaign against unionization?

yes; however, they are not allowed to use economic pressure to influence employee voting

Are companies allowed to choose a self-insured option instead of the normal insurance program?

yes; however, they must meet the state's requirements for establishing a fund that is sufficient to make payments to injured employees.