LEGAL Chapter 11
Two important exceptions to the workers' compensation laws are cases in which:
1. an employer has engaged in actions that intentionally create conditions that result in harm 2. an employer acts with a reckless disregard for the safety of its employees.
Authorization Cards
A group of employees, with a mutuality of interests, organizes an effort to have other workers sign authorization cards; 30 percent of the collective bargaining unit must sign in order to proceed to the next step.
Monitoring of E-Mails and Internet Usage
An employee's activities while using an employer's computer system are not protected by any privacy laws. All computer use is ordinarily subject to employer monitoring, including the right to: Track websites visited by employees. Count keystrokes and mouse clicks. Block employees from visiting specific Internet sites. Limit the amount of time an employee may spend at a specific website.
Implied Contracts
An employment-at-will relationship may be converted to a contract relationship if the employer acted in a manner that would lead a reasonable person to believe that the employer intended to offer the employee protection from termination without cause.
Family Medical Leave Act
Applies to employers with at least 50 employees within 75 miles. Mandates that employers provide up to 12 weeks of unpaid leave to employees for the purposes of caring for family medical matters during any 12 month period.
Filing with NLRB
Authorization cards are filed with the NLRB, and a formal union certification process begins when the NLRB sets a date for an election.
Statutory Exceptions
Certain federal and state statutes also displace common law employment-at-will rules. Antidiscrimination laws Jury duty laws Attempting to form a union laws
Employee Retirement Income Security Act (ERISA)
Comprehensive set of laws and regulations that requires employers to make certain disclosures related to investment risk and provides transparency for plan beneficiaries Establishes rules for conflict of interest and imposes certain fiduciary standards for investing and managing pension plans or administering retirement savings plans.
Employment Regulation
Congress and state legislatures have passed laws intended to protect employees from oppressive or unfair practices in the workplace.
Exempt versus Non-exempt:
Education or skill level or certifications required for the position, salary level, compensation method Amount of physical labor required Amount of repetitive tasks Degree of supervision required by the employer
Lockouts and Replacement Workers
Employers who are subject to a strike may hire nonunion replacement workers in order to continue operations. Employers that anticipate a strike may lockout workers by shutting down the business, preventing employees from working.
Election
Entire bargaining unit votes to either elect or reject unionization. A simple majority is required to certify the union.
Health Care
Health Insurance Portability and Accountability Act (HIPPA) sets rules designed to protect employee medical records from disclosure. Consolidated Omnibus Budget Reconciliation Act (COBRA) mandates that employers offer continuous coverage eligibility to employee who has been terminated.
Certification or Rejection
If a simple majority voted for unionization, the union is certified. The employer must recognize the union as the exclusive bargaining representative of the workers and is required to bargain in good faith with the union thereafter. If a simple majority voted against unionization, the union is rejected
State Wage and Hour Laws
Minimum paid rest periods Minimum paid meal periods Payday requirements Prevailing wages requirements
Public Policy Exception
One important exception that displaces the employment-at-will rule recognizes that allowing employers to terminate an employee for certain reasons may contradict public policy (welfare of the general public).
Express Contracts
One major exception to the employment-at-will rule occurs when an employee has an express contractual relationship with the employer that is intended to displace the employment-at-will rule.
Employee Polygraph Protection Act
Prohibits use of polygraph by most private employers.
Drug and Alcohol Testing
Some states permit employee testing so long as the employer follows certain procedural safeguards intended to ensure confidentiality, safety, and accuracy. Other states permit testing only when the employee's job carries a great deal of risk to the employee or the public or when a worker has been involved in a work-related accident in which drug use is suspected.
Overtime compensation
Standard work week: 40 hours/seven-day period.
Minimum Wage
The FLSA establishes a minimum wage to be paid to every employee covered under the act. Congress has raised the minimum wage to $7.25; (states are permitted to set a higher minimum wage level).
Collective Bargaining
The NLRA requires that both parties engage in good faith negotiations. This is not a requirement that one side or the other concede a particular term. The parties are obligated to demonstrate that they are engaged in moving toward an agreement.
Strikes
The NLRA specifically allows for union employees to commence a strike in order to induce the employer to concede certain contract terms during collective bargaining.
Employment-at-will Doctrine
The employment-at-will doctrine does not apply in cases where (1) the employee has an express contract, (2) courts have fashioned a common law exception, or (3) there is some specific statutory protection against job termination.
Employee Privacy
The privacy of employees while they are at the workplace or are off-site performing work-related tasks is an issue of growing concern because many employers regularly monitor employee behavior in some form.
Public Policy Exception
The public policy exception is a narrowly applied common law rule that places the public welfare ahead of the rights of an employer.
Employment Regulation
These employment protection laws are intended to safeguard the welfare of individual workers who have little or no bargaining power in the employer-employee relationship.
Employment-at-will Doctrine
This doctrine permits employers to terminate an at-will employee with or without advance notice and with or without just cause, subject to certain exceptions. The employment-at-will doctrine does not apply in cases where (1) the employee has an express contract, (2) courts have fashioned a common law exception, or (3) there is some specific statutory protection against job termination.
Child Labor Laws
Under age 14: No employment except newspaper sale and delivery. 14-15: Limited hours during school days; only nonhazardous jobs. 16-17: No limits on hours, but cannot work in dangerous jobs.
Campaign
Union organizers campaign according to fair labor practices. Management is also permitted to engage in certain practices to campaign against unionization.
Express Contracts
When the parties enter into a contract, the rights of the contractual employee in the case of termination are spelled out in the contract.
Illegal Work Stoppages and Boycotts
Wildcat strikes Sit-in strikes Strike during cooling-off period Secondary boycotts
Whistle-blower
an employee or agent who reports unlawful conduct or a statutory violation by his employer to the authorities.
National Labor Relations Act (NLRA)
general protections for the rights of workers to organize, engage in collective bargaining, and use economic weapons (such as a strike) in the collective bargaining process.
Fair Labor Standards Act (FLSA)
intended to cover all employers engaged in interstate commerce primary provisions mandate (1) payment of a minimum wage,11 (2) a maximum 40-hour workweek, (3) overtime pay, and (4) restrictions on children working in certain occupations and during certain hours.
right-to-work laws
make it illegal for employers to agree with unions that union membership be required for continuing employment.
Collective bargaining
negotiation of wages and other conditions of employment by an organized body of employees.
Labor Management Relations Act
prohibited employers and employees from agreeing that union membership is required as a condition for employment.
Federal Unemployment Tax Act (FUTA)
provided limited payments to workers who had been temporarily or permanently terminated from employment through no fault of their own. FUTA established a state-administered fund to provide payments to workers who have suffered sudden job loss.
Social Security Act (SSA) of 1935
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.
Labor-Management Reporting and Disclosure Act
regulates the internal operating procedures of a union including election procedures, and rights of members, requires union financial disclosures, gives the NLRB additional oversight jurisdiction for internal union governance.
Occupational Safety and Health Act (OSHA)
setting of national safety standards mandating information disclosure/warning of hazardous working areas/assignments record keeping and reporting requirements imposing a general duty upon employers to keep a workplace reasonably safe.
Workers' compensation
statutes establish a structure for an injured or ill employee to be compensated through a statutorily mandated insurance program as the exclusive remedy for workplace injuries or illnesses.
Electronic Communications Privacy Act (ECPA)
updated existing wiretap laws and restricts an employer from monitoring an employee's personal calls (even those from the workplace) without the employee's consent. Employers may monitor business calls but must disconnect the moment they recognize that a call is personal. Employers are also restricted from accessing an employee's office voice mail without the employee's consent.
Post-strike Rehiring
while a strike is a potent economic weapon of a union, its impact on striking union members can be harsh. Workers are cut off from any pay, medical benefits, and other compensation until the strike is over. Employers have no legal obligation to rehire striking workers or provide retroactive pay in cases of a strike for economic reasons
