Chapter 26

What is true about union formation?

At least 50% of the employees must favor the formation of a union

To ensure that its employees did not use illegal drugs in or outside the workplace, Marvel Grocery Store required all employees to take a polygraph exam. Moreover, managers began to screen the company email system for drug references. Jagger was fired for refusing to take the polygraph test. Jonathan was dismissed when a search of his email revealed that he had used marijuana during the prior weekend. What does the Employee Polygraph Protection Act permit?

Employers may not require, or even suggest, that an employee or job candidate submit to a polygraph test except under a few exceptions

Brook moved from Denver to San Francisco to take a job with an advertising agency. His employment contract stated that he was "at-will and could be terminated at any time." After 28 months with the company, he was fired without explanation. Which of the following statements is true?

He could be fired for any reason except a bad reason. He argued before the California Supreme Court that his contract implied that he could only be fired for cause, but the court rejected this argument.

Janice has been working as a restaurant manager for 10 years. She is cannot stand her job anymore. Janice calls her boss at 7:00 a.m., on Monday and tells him that she quits. Her boss is astonished because Janice is due to be at work by 9 a.m. Which is most true?

Janice can quit at any time under the employment-at-will doctrine.Most employees fall under the employment-at-will doctrine. At common law, the employer can fire an employee at any time, as long as the firing decision does not conflict with a statute or common law exception. At common law, the at-will employee can also quit at any time. There is no evidence that there is an employment contract nor is there evidence of an employee handbook (that some courts hold creates a contract). It is good practice to give more than 2 hours' notice (if she wants a reference). However, notice is not a legal requirement unless there is an employment contract with such a provision.

Connie and her fellow union employees went out on strike when the company refused to meet the union's demands for higher wages and better benefits. Shortly thereafter, the company began hiring permanent replacement workers. After a hard eight-month strike, the union and the company reached an agreement. When the strike was over, Connie was upset that she was not given her job back. The replacement worker that took over her job was retained. She believes she has a legal right to her job, especially since she was a faithful employee for over 20 years. Is Connie right?

No because the strike was an economic strike. Replacement Workers. If the union members vote to strike, the employer can hire replacement workers during the strike. If the strike is an economic one, the employer does not have to give the striking worker her job back (but can keep the replacement worker). If the strike was based on a unfair labor practice, the employer must give the striking worker her job back after the strike.

Assume ABC, LLC employed Will for 6 months. Will interviews with XYZ, Inc. A representative from XYZ calls ABC to check on Will during a normal reference check. What is the best way for ABC to prevent Will from suing based on defamation?

Only give out basic employment information, like dates of employment.Tort Law, Defamation. Employers may be liable for defamation if they give unfavorable AND false statements about a former employee. Half the states include a qualified privilege to employers; they will only be liable if the statements were known to be false and were primarily motivated by ill will. One of the common business practices to prevent these lawsuits is to no longer give references, but rather only confirm the dates of employment.

Which of the following statutes defines unfair labor practices and ensures workers' right to form a union?

The National Labor Relations Act

CPA QUESTION An unemployed CPA generally would receive unemployment compensation benefits if the CPA

Was fired as a result of the employer's business reversals. CPA Examination, November 1991, #33.

During a job interview with Venetia, Jack reveals that he and his wife are expecting twins. Venetia asks him if he is planning to take a leave once the babies are born. When Jack admits that he would like to take a month off work, he can see her face fall. She ultimately decides not to hire him because of the twins. Which of the following statements are true?

the FMLA only applies to people who have worked for the company for a year. Jack is not pregnant, so the Pregnancy Discrimination Act does not apply.

Social security is a system of taxes that provide benefits to the elderly, to some workers who are ill, and to some unemployed workers.

true

The Occupational Safety and Health Act created an administrative agency that can inspect some workplaces.

true

Some courts have held that employee handbooks create binding contract terms.

true. Contract Law, Employee Handbooks. States provide common law exceptions to the at-will-employment doctrine through statutes, wrongful discharge, contract, and tort. A court may find that an employee handbook creates a contract. Courts do this in order to expand protections from the at-will-employment doctrine. If a handbook sets out specific action (like how employees can be fired), the handbook provision becomes an enforceable promise under contract law.

When Shiloh interviewed for a sales job at a medical supply company, the interviewer promised that she could work exclusively selling medical devices and would not have to be involved in the sale of drugs. Once she began work (as an employee at will), Shiloh discovered that the sales force was organized around regions, not products, so she had to sell both devices and drugs. When she complained to her boss over lunch in the employee lunchroom, he said in a loud voice, "You are a big girl now—it's time you learned that you don't always get what you want." That afternoon, she was fired. Which of the following is/are a/an example of legal exception for the employment-at-will doctrine (wrongful discharge)?

Refusing to Violate the Law,Violating Public Policy,Exercising a Legal Right

When Shiloh interviewed for a sales job at a medical supply company, the interviewer promised that she could work exclusively selling medical devices and would not have to be involved in the sale of drugs. Once she began work (as an employee at will), Shiloh discovered that the sales force was organized around regions, not products, so she had to sell both devices and drugs. When she complained to her boss over lunch in the employee lunchroom, he said in a loud voice, "You are a big girl now—it's time you learned that you don't always get what you want." That afternoon, she was fired. Does she have a valid claim against the company?

Yes because they made false promises to her.Contract Law, Truth in Hiring (p. 622). States provide common law exceptions to the at-will-employment doctrine through statutes, wrongful discharge, contract, and tort. A court may find that oral promises made during the hiring process are enforceable, like a contract. Courts do this in order to expand protections from the at-will-employment doctrine. In this case, Shiloh would sue the employer for contract breach based on the oral promises - that turned out to be false.

Pat tells his employer that he needs to stay home to care for his sick father. Can the employer fire him?

Yes, but it would probably be illegal and Pat could sue for damages.Employers with 50 or more employees are required to provide up to 12 weeks' unpaid leave for employees who have worked full time in the preceding 12 months. The leave may be for birth or adoption of a child or for a serious medical condition (like, hospitalization, multiple visits to a healthcare provider, or a condition that requires a course of treatment). The employee must be allowed to return to the same or an equivalent job with the same pay and benefits. In this case, Pat would sue the employer and most likely win under the FMLA.

Alpha Company's workers walk out on strike. The company hires replacement workers so that it can continue to operate its business. When the strike ends, Alpha must rehire the original workers if the strike was over ________________.

an unfair labor practice

The Fair Labor Standards Act requires that all workers are paid for overtime work unless the workers agree otherwise.

false. FLSA provides that hourly workers must be paid time and a half for any hours over 40 in one week. However, this "overtime" provision does not apply to workers who receive a salary.

the Equal Employment Opportunity Commission (EEOC) generally prohibits drug testing for all types of employees.

false.Alcohol and Drug Use. First, the EEOC is a federal agency that enforces FEDERAL employment laws. Therefore, EEOC decisions usually affect federal workers, not state workers. Second, the EEOC prohibits testing for prescription drugs (not all drugs) unless the employee seems impaired. Note that it is much easier for private employers to test employers than for government employers.

Hanson Corporation is concerned that its employees are spending too much work time talking on the telephone, sending e-mails, and using the Internet for personal uses. Hanson Corporation wants to monitor workers' telephone calls and e-mail messages. What has to happen before they can do this legally?

in the case of e-mail, the employer provides the e-mail system.Employees must consent,The monitoring occurs in the ordinary course of business

Don works at the local gas station and garage. Don's boss, Betsy, encourages Don to find brake problems with out of state cars that come to the station. Usually Don tells the driver that their brakes are leaking fluid, and offers to replace the brakes at a good price. The cost is low because Don does nothing more than remove the tires and look at the old brake pads. One day a woman with five kids comes to the station and Betsy tells Don to "do a brake job." Don does not want to have five kids running around the station and tells the lady that they are out of gas and to go down the street to the next station. Can Betsy fire Don?

no, because Betsy ordered him to perform an illegal act. Wrongful Discharge (Refusing to Violate the Law). States provide common law exceptions to the at-will-employment doctrine. Many states have recognized the tort of Wrongful Discharge, where a fired employee can sue the former employer for damages. Wrongful Discharge is supposed to stop employers from firing employees on the basis of something "bad." The "bad" firing usually involves something major. One example is when an employer requires an employee to violate the law. If the employee refuses to violate the law and is then fired by the employer, the employee can sue (and probably win). Here, Don refused to violate the law even though his employer asked her to falsify repairs. Don would sue his employer under Wrongful Discharge, and probably win damages. Note that it does not matter that Don refused to participate in the fraudulent repair because he did not want the kids running around. His intent is not important here; the focus is that his employer was asking him to perform a criminal act.