Legal Environment of Business Chapter 15

Serious health condition qualitifes for fmla includes illness injury a phsucial ro mental condition that ivlos in patient care or treatment by health provider which may include

1 More than 3 consecutive days of incapacity and treatment for condition involving 2 or more treatments, including exams; or one treatment with continuing prescription medicine or special equipment 2 incapacity due to pregnancy 3 incapacity or treatment for chronic serious health condition 4 absence from multiple treatments and recovery for surgery or condition that results in more than 3 pay period of cincapacity left untreated

Examples of employer conduct violating NLRA(unfair labor practices)

1 Threatening employees with loss of jobs or benefits if they join or support a union 2 threatening to close a plant if employees vote for unionization 3 questioning employees about union activities 4 promising benefits to employees if the do NOT support a union 5 Giving employees worse assignments for participating in protected activities

Where chemicals are used, employers must have( workeres and toxic substances (hazcom))

1 a written plan that indicates -list hazardous chem in workplace - how safety data sheets chemical labels and worker training about chem safety are handled -descript of how employes will be trained for non routine tasks like chem or explosions 2 labels for chemical containersthat indentiy chemc hazard warning and name and adress of producer 3 material safety data sheets provided by chem edistrucitors with every container. MSDS 4 programs to train employees at risk of exposure about chem and proper procedures

Workers Compensation objectives

1 provide benefits to work accident victims regardless of fault 2 provide a certain remedy and relieve hassles of tort litigation 3 protect public and private charities from undue burden 4 reduce fees to lawyers and expert witnesses 5 encourage employer safety; accident rating based premium 6 provide open communication of accidents for safety improvements

employee substance abuse politices elemnts

1. pre employment screening of job applicants for substance abuse is usually legal 2. Testing employees on annual basis or part of occasional physical exams usually legal. exam must be volutnary or directly related to ability to perfor job 3 Random drug tests ok when a condition of employment (notification) employees not in sent position are more likely 4 Drug tests after accidents because safety outweight employee right to privacy 5 drug test given because reasonable suspicion of improper usage are lilkey to be allowed when there is an announced policy of such tests and when safety is an issue 6 certifed labs should be used to give the process drug tests 7 give employees copy of company policy and keep a signed receipt from employee

Legal issues in drug testing

Drug free workplace act -requires all companies with 250000 worht of bus to cert provide drug free workplace main requirement that the employer -publish and dist statemnt not employees that use distribution -state what action will be taken against employees woh violate policy -establish drugg free awarenes program -notify employees as conditoin the mepoyer must be notifed if occur employer who fial may lose bus with fed gov omnibus trans employee testing

At will employment

Employers can hire and fire who they want employees : may quit when they want contractual can limit presumption of at willl exceptions refusing to commit illegal act importnat public duty public right whistle blowing contracts in violation of public policy Dismissal: if firm dismisses employee in violation of public policy exception, such as EEO violations, employee may sue for wrongful discharge or retaliatory discharge

Omnibus transportation employee testing act

Employers who op -aircraft public transportation -commercial motor Must test employees for use of alcohol or illegal drugs include: -Pre-employment -random testing during employment -testing after accident

Norris la guardia act of 1932

Ended court intervention when employers plead to stop strikes and other union activities as a violation of antitrust law. No court injunctions in nonviolent labor disputes such as strikes, publicizing a labor dispute, picketing, etc. •Declared that every worker "have full freedom of association, self -organization, and designation of representatives of his choosing to negotiate terms and conditions of his employment." •Prohibits employers requiring employees to sign yellow-dog contracts - agree to NOT join a union or risk being fired if they do management must dela with union or begin adm with nationla labor relations board acts not subject to court intervation are strikes belongin to union, paying strike or unemployment benefits to labor disputes, publizing labor dispute, picketing, peacefully assembling and advising ohter to do any of these acts without violence or fraud

Family and medical leave

FMLA applies to private employers with 50 or more employees and and ato all gov units 12 weeks unpaid leave -after childbirth or adoption to care for seriously ill child, spouse or parent; in case of employee own serious illness Pertains to serious health condition - - - - exempts "key" employees- 10% highest paid a complex law need knowledgeable manager to oversee decisions

new employment procedure

Fill out an I-9 form for all new hires (which must be kept on file for three years or at least one year after the employee leaves the job, whichever is later). Allow employees to choose which documents from the I-9 list to use as proof; never insist on a specific document and accept documents that appear genuine. Never ask for more documents than the I-9 requires.

Good faith bargining(collective bargining)

NLRA imposes duty for employes an dunion to bargain in good faith nlra says barining with good faith must occur with repsect to mandaotyr subjects of bargaining meet and willing to presetn prosals listen and consider of other party search for common ground that can serve as basis of agreement but there is no legal requirement that agreement can be reache s court noted nlrb and crt not beocme inlvived in barinign process so parties reach agremetn of own making

Worker health and safety

Occupational Safety and Health Act of 1970 (OSHAct)created Occupational Safety and Health Administration (OSHA)The Occupational Safety and Health Review Commission (OSHRC) The National Institute for Occupation Safety and Health Council (NIOSH)OSHRC reviews administrative cases brought by OSHA.NIOSH does studies to help set safety standards.Safety InspectionsInspectors visit workplaces and respond to workers' reports of problems.Marshall v. Barlow's (OSHA inspectors routinely obtain administrative warrants that do not require show of probable cause; the warrant requirement is not difficult.)Penalties may run from small fines to millions for multiple violations.

NLRB remedies

Posting a notice in the workplace Issuing a cease and desist order Providing back pay for lost wages Reinstating dismissed workers Issuing an order to bargain with the union

Workers compensation

State statutes that provide an employee who is injured in the course of employment with a partial payment in exchange for mandatory relinquishment of the employee's right to sue the employer for the tort of negligence; funded through employer-paid insurance policies. require employers to pay ins premium for inj or deaht be for employees workers comp provides ceratin recovery with benbeen paid regardless of casue of work related injury no fault ins REDUCES PAYMENT FROM TORT DAMAGES TO A SCHEDULE SET OF STATE LAW SOMETIMES EMPLOYEES PREFER TO SUE IN TORT BUT GEN NOT ALLOWED FOR PAYING PRIIUM EMPLOYERS BECOME IMMUNIE FROM EMPLOYEE DAMGE SUTS OR TORTS

Examples of union conduct violating NLRA

Threatening employees with loss of job if they do not support union refusing to help employees with grieving who have critized union leaders engaging in picket line misconduct such as threatenign non strikers striking over issues unrealted to employment terms and conditions

The following documents are used as proof of identity and of employment eligibility

U.S passport permanent resident card foreign passport with employment authorization

Vesting

Under the Employee Retirement Income Security Act of 1974, a pension plan becomes vested when an employee has a legal right to the benefits purchased with the employer's contributions, even if the employee is no longer working for this employer. employee become onwer of funds in rreitremetn program various options ot use in pension programs

authorization cards

a card signed by an employee at a worksite targeted for possible unionization; the card authorizes the union to request that an election be held to determine if all workers will be represented by the union.

Wrongful discharge(retailitory discharge)

a cause of action an employee may have if dismissed for an improper reason, such when a firm dimsised sn amployee in violationof public policy exception to the right of at will are torts

Decertify

a process by which employees vote to withdraw their consent to union representation; an election is conducted by the national labor relations board

secondary boycott

a union's refusal to handle products of or work for a secondary company with whom the union has no dispute; to force that company to stop doing business with another company with which the union has a dispute

Strikes

a work stoppage by employees as a protest against an employer

Substance abuse

alcohol most commonly abused 8% of workers are serious alcohol abusers about 3-8% of adults abuse or are addicted to illegal or improperly dispensed drugs one in eight of workers have substance abuse problem FEDERAL DRUG FREE WORKPLACE ACT

Hazard communication standard

also called hazcom in an employment law; the requirement that an employer provide training and information about hazardous chemicals employees will be exposed to on the job

1959 landrum griffin act-labor managment reporting and disclosure act

amended NLRA increased reporting regulation of internal union affairs protects unions members from improper actions by leader by monitoring leadership and providing union member bill of rights ---- Monitoring leadership--uion finances are subject to reveiw and report avil to union meebrs. betrays are usbejct ot presecution union members bill of rights-ensures membres right ot nom cnadites for union offices maintains fair election procedures and allows memebrs to part in union bus

1947 Taft hartley act-the labor management relations act

amended the NLRA market a change in federal policy from ativitely encouraging labor union formation to a more balanced approach. act prohibits unions form following activites Coercing employees to support union Refusing to bargain in good faith with employers Carrying out certain kinds of strikes "secondary boycotts,"charging "excessive" union fees, or "featherbedding" Going on strike during 30-day "cooling off" period or during 60-day period ordered by the President.

yellow dog contracts

an agreement between an employer and an employee under which the employee agrees not to join a union and that if he joins a union, there is breach of contract and the employee is dismissed.

Unions

an association of workers that is authorized to represent them in bargaining with their employers labor laws gernally erefers to laws dealing with unions whereas employemnt law refers to law governing all employoess however some labor laws apply to all employees

Whistle-blower

an employee who alerts the authorities to the fact that her employer is undertaking an activity that is contrary to the law employee reports an employer illegal act more likley to apply to public secotr employees under state sttute than private sector employees

Workers compensation: benefits and incentives

benefit category: death, total dis, permanent partial disability, temporary partial disability and med ex including rehabiltaiton obligations to employees not independent contractors companies pay premiums based on injury claims records vary widely among states and occupations differetn states have diff systems rules payout histories usually worker receives 2/3 of their gross wages as dis income -as low as 500 in some staes and 1500 in some ------------ Provide employers with incentive to invest in safety at worksite. lowest number of injuries and therfore fewest cliam pay lowest premiums premiums vary widely rates depodn on how many claims an employer had called bus exp rating ------ employer must pay FICA taxes and withold fed an ssate income texes sim to woker socmp is unemplyment

Concerted activites(collective bargaining)

concerted activites: employer and union must be able to back up positions -union can strike, employer can lock out -each side may do other activites to place presssue on the other side Protected activities: right to engage in concerted activites for mutual aid or protection -most union organizing efforts or refusal to wokr due to unreasonable hazards or concerns: working conditions unprotected activites: threats or acts of violance not protection -employers may fire employees for insubordiantion disobeince disloyalty unless activity part of protected primary boycott(strike against employer whose collective bargaingin agreemnt in question is legal Secondary boycot(union uses econ pressue to force others to stop doing bus with an employer not directly involved in primary labor dispute is illegal

Occupational safety and health act

congress enacted occupational safety and health act in 1970(OSH act) created occupational safety and health admin occupational safety and health review commission national institute for occupational safety and health council osh act states employers must provide employees workplace free from hazards oshrc reviews admin cases from osha while niosh does studies to help set standard ---------- INSPECTIONS OSHA insp visit workplace and repsond to workers report of problems becuase osha ins obtain adm wrrants that not require show prob cause warrant req has little impact viist workpplace and respond to workers reports of problems -------- penalites based on inspections of compliacne officers, citation may be issued for violating or failrue to meet standard of workplace Penalites may run from small fines to millions for multiple violations

Substance abuse: a costly issue for business

directly affects employers because mean reduced productivity and higher med insurance costs 400bil total huge cost of substance abuse does not include nicotine

Retirement plans

employee retirement income security act (ERISA) guarantee expectations of retirement plan participants- protects benefits after reasonable length of employment if plan collapses because employer goes bankrupt, fed chartered pension Benefit guaranty corporation may profit pension benefits mandatory vesting requirements- participants receive benefits after certain legnth of employment. have some choicees statutes are complex involving lengthy regulatory filings for pension and benefit plans-need for expert guidance

Anti raiding covenants

employees sign an agreement they will not recruit fellow employees for antoher company when they leave their current place of employment -varies a lot from state to state some court holds flcauses in violation of public policy --is illegal restraint on compeitiotn -others hold them as enforceable NEW YORK COURT HELD ONCE EMPLOYEE LEAVES PLACE CONTINTUED RESTRAINTS ARE NOT FAVORED --exception to protect things-trade secrets CALI AND TEXAS have held that covenants limited in time and coverage are enforceable In missouri legislature specifically hedl such covenants legal

Non competition agreements

employees sign not to leave employment and then direclty with employer Different states differ: Some allow the agreements if reasonable time and area Some states allow court to imply reasonable terms so as to save the covenant in part Other states will eliminate these agreements entirely if some terms unreasonabl eOther states, like CA, say that almost every contract that restrains anyone from lawful business is void Employers must pay attention to individual state law in this area as what may be used for employees in one state will not work for employees in another state.

Employer economic responses

employer may not retailitate against employees for engageing in protected activities have right to use some economic pressue may lock out employees until dispute with union is settled -lockout usually a defsnvie move -okay if in an effort to promote settlement or protect plant or its materials replacement of employees by non union workers can be okay if collective bargaining agreesment expires with no agreement to new contract and union calls for strike the employer can hir enew wokrers and keep usuing existing union workers who cross picket lines

integration with employment rules(famliy medical leave)

employers should have clear policies that have been reviewed by knowledgable attorney an employer should designate a manger who understands the law to ensure compliance. no ind man should make det of el becuase FMLA vio imposed fmla coverage may be denied on case by case bais to key employees or leas tone year not wokred 1250 hours noitfy emploers at least 30 days in adance for forseeable leave

General regulation of labor markets

family and medical leave hiring legally federall min wage requirement occupational licensure and reg warning employees of plant closings employee reitrements plans

Occupational licensure and regulation(general regulation of labor markets)

few controls at fed most by states usually a state commission determines entry criteria such as formal ed apprenticeship testing ability to practice through license or cert -as lawyer docto nurse dentist veterinarian optomestrist -some states licenwse dog groomer beekeeper interior designer coffin sellers hair braiders manicurists r upholsterers Some laws concern how businesses provide reference to when employees paid their final pay check. Many states require time off to employees to vote and to attend parent-teacher conferences .Many small to medium size firms unaware of details of laws - often unwittingly violate them

Hiring legally(general regulation of labor market)

for every person hired, employer must have a I-9 form on file documents must eb presented for proof of identity and employment eligibility many use e verify program(US citizenship and immig services elec ver system) (USCIS) -program has had diff with accuraryc -fmany fed contract require e verify use -some states like ar and miss require e verify cant hire illegal immigrants fines and crim pen-can be large for sloppy record keepers when someone buys bus the new owner becomes repson for previous owners imigraiotn com;iacne so can be liable fo rnay errors in employment verification for ex employees

Contracts in violation of public policy

generally courts will not enforce contracts that are against public policy courts do not look with favotr at exculpatory agreements . noncompete agreements antiraiding covenants

Unionization process

if union not rep emplyee move to unionize may arise bec some interest employees ocntact union for ass or employees are contact by union Representation elections organizer seeks auth cards singe dby 30 % or more of empl turs to nLRB and request rep election. election determiens whether majo ro employee wnat union as agent comp allowed to address prob it sees fron unionizatoin NLRB and courts help with access to union info

public policy exceptions

in employment law, statutory or court-mandated exceptions to the presumption of employment-at-will that goes beyond contract issues in employment; for example, it is illegal for an employer to dismiss an employee for reporting for jury duty.

noncompete agreements

in employment law, when an employer requires an employee, as a condition of employment, to agree not to compete with the employer in the future for a certain time and in a certain location; such agreements are not favored in some states cannot go into comp against employer fo rcettian time like one to three years

Anti raiding covenants def

in employment law, when employees are required to sign, as a condition of continued employment, an agreement that in the future, should they no longer work for the employer, they will not attempt to hire away other employees from the company; these are looked at closely by the courts as possible restraints of trade. not recruit fellow employees for antoher company whne they leave current employer some courts hold such clasues to be in violation of public policy as illegal restraint on compettion

Substance abuse policy

in employment law, workplace rules adopted by an employer with respect to any required tests and the consequences of abuse of drugs, alcohol, or other substances; must comply with certain federal and state laws Pre-employment screening usually OK - (some states say only test after job offer is extended)Testing employees on annual basis or part of occasional physical exams usually legal. Examination must be voluntary or directly related to ability to perform job.Safety sensitive jobsRandom drug test OK when a condition of employment (Notification)After accidents - often required."Reasonable suspicion"- document this well in employee fileAnnounced policy of such tests and safety is an issueUse Certified Labs for drug testing resultsGive employees copy of company policy and keep a signed receipt from employeeMake policy clearCheck with attorney

Unfair labor practice complaints

in labor law wide range of actions that iolates right of workers to organize and engage in collective activites or that violates the right of employers to be free from practices defined as illegal under hte national labor relations act

primary boycott

in labor law, a union action that tries to convince people not to deal with an employer with which the union has a grievance

Agency shops

in labor law, a unionized workplace where employees who are not union members must pay agency fees to the union for being the sole bargaining agent for all employees; illegal in states that have right-to-work laws. place of employment where maj fo employees voted and collect bargain ag are legal employees who belong to union pay union dues while employees who dont want to join the union pay agency fees nonunion emplyees rep by union and have fees deducted from paycheck agency fees little lower than union dues

Concerted activities def

in labor law, actions by employees such as strike or other mutual actiivty that fiurther employment interest , protected by the national labor relations act

Union certification

in labor law, when a majority of the workers at a workplace vote to have a union be their collective bargaining agent, the National Labor Relations Board certifies the legal standing of the union for that purpose

representaton election

in labor law, when at least 30 percent of workers in current or proposed bargaining unit sign a request to have an election to determine if all workers in that workplae will be representated by a particular union

Federal minimum wage and tax requireemtns(general reg of labor markets)

initiated in 1938 as part of fair labor standards act averages about 50% of the average man wage min wage of 7.29 as of 2009 many states like cali have high min wage some state laws cover employers exempt from fed law

Agency shops(unionization)

majority of employees vote to be represetned by union -members pay union dues -nonmembers pay agency fees(little lower than union) -union give $ to support political act -states pass right to work laws that prohibit agency shops -have right to wrork without joining a union even if majority of workers voted for union use of agency fees to support union pol activites must be explained and escrow account for amounts when dispute pending re: use of fees for this purpose

Workers and toxic substances(worker health and safety)

most osha conern safety health standards also eists have some impact Hazard communication standard(hazcom) chemical producers and users must conduct a hazard determination of each chemical. Where chemicals are used employers must have 1. A written plan that includesList of hazardous chemicals in workplaceManner in which safety data sheets, chemical labels, and worker training about chemical safety is handledDescription of how employees will be trained for non-routine tasks (e.g. chemical spills or explosions)2. Labels for chemical containers 3. Material Safety Data Sheets (MSDS)4. Employee Training Programs

Major labor relations acts

norris la guardia act wagner act of 1935 the taft hartley act of 1947 the landrum griffin act of 1959 national labor relations act was enact by fcongree in three phases wagner taft and landrum only major labor law passed before nlra was norris la guardia

National labor relations board

overseeing national labor relations act it has five board members, gen counsel, regional directors and amin law judges admin agency craeted to monitor unfair labor practices and assure that union labor practices and assure that union represetnation elections are fair Jurisdiction: labor dispute that "affects interstate commerce" about 30,000 cases a year most are unfair labor charges hearing is before an admin law judge -is an employee of NLRB -issues a order certain classes of emplyees not covered by NLRA-fed statea nd munip employees superiosrs mang ind contract domestic servent and some agri laboroers order is final unless one party files an exception if exception files appeal heard by washington paenl of 3 NLRB members -sometimes the entire board may hear an appeal if one party refueses to accept boards decision, case will be referred to us court of appeals -for enforcement or review of order in rare instances case may go to us supremee for final review pres are either pro labor or pro managemetn presidentail appointmetn to board can be politically sensititive

lockout

refusal by an employer to allow employees to work

employers cannot fire an employee for

refusing to commit an illegal act such as falicyign reports performing a public duty excercising a public right like filing a claim for workers compensation or filing for bankruptcy whistle blowing contracts in violation of public policy

Unionization

represenation election rules governing employer and union conduct employees sign authorization cards need 30% to go to NLRB for an election campaign-by union and management NLRB supervised election -more than 50% vote yes? -if so, union certification is granted -is exclusive bargaining agent for all employees for all terms and conditions of employement. if not, union fails can also hae 30% call for election to decertify union -60 to 90 days before expiration of collctive bargaining agreement, e0 percent can call for election to attempt ot decert a union NLRB and courts do not permit access to company property by outside organizers

occupational licensure

requirement at the state level that for one to practice a certain profession, one must meet certain educational or experience guidelines, pass an entry examination, and show evidence of continuing educational accomplishments cannot simlpy set up must permission from reg agency used to protect con and restirctions are supposed to help guaruettee bus qulaified

1935 wagner act (NLRA)

right of workers to unionize created national labor relations board (NLRB) basic goal of nagner act the fist phas of nlra was self org -monitors unfair labor practices. issue few rules prefers developmetn through dispute res process board decisions can vary with political makeup-outcome of proceedings various over time more than most agencies NLRB not regulate substance of bargaining; terms an conditions of employement it deals with procedures and review of claims that NLRA has been violated

Right to work laws

state law that prohibit unions from forcing employees who do not want to pay union dues or agency fees to pay such dues or fees even inf emplyees are represent by union or under collective bargaining agreement tart hartley act allows to pass this if maj of employees vote for union rep an dpya dues union collective bar agent for all employees how no employees an be required to pay age fees

bargaining agent

the union recognized and certified by the National Labor Relations Board, upon election by a majority of the workers, to be the exclusive representative of employees in a bargaining unit (worksite) to determine working conditions and wages.

Labor disputes

under labor laws, specific actions by employers, unionk, or employees that are subjeect to covereage by steandards set by the national labor relations act

mandatory subjects of bargaining

under the National Labor Relations Act, all terms and conditions of employment that must be discussed by employers and unions or an unfair labor practice occurs either party may insist on posiiton and back taht up with strike or lockout employers and union sfree to bargian over any topics like pay rate insurance plans holidy etc ------- arbitration clauses under griveance abritratin clauses in collective barining agreements disputes between employers and unions are reoslve dby internlea griveance procedure outside arbitrator chosen under contract if violated may sue for enforcment right to grieve belongs to union, however , not the worker as union controls if uion refueses to take employeees concern eomployee must sue union for ivolation fo duty of fiar represtnaqtion

Collective bargaining

union is exclusive bargaining agent for employes collective bar covers whole process from inniatl focntract negotiation up through contract admin set forth terms of contract for given period -most collective bargaining agreements contain dispute res clause(greivance atrbitration clauses) NLRA requires good faith bargaining -certain mand subjects ie wages hours other terms -can back up positions with strike by union or lockout by employer

Workers Compensation claims

worker must show that he has injury, as a result of accident of occupational disease, that arose out of and in the course of employment -compnesable injuries can inlcude metnal and nervous disorders and heart attacks that occur on the job neg or fault of employer in causing injury not issue and cov is braod courts strict in interpretin stat that liablity cov of worker comp actions of employer, empoyee or third become releant if was int tort employe emay want to sue intort instead of acpeitng works comp payments ebc damges cna be much larger how suit outside of workers compensation is rarely allowed -exception may be for injury in case of intentional tort, injury caused by a defecgtiv peoruxct o ftoxic substance or injury cuased by actions of third party

To have a workers compt claim

worker must show he has 1 an injury 2. as a result of an accdient or occupational disease 3. that arose out of and in the course of employment

Warning Employees of plant closing (general reguatlion of labor markets)

workers adjustment and retraining notification act(WARN)- -employers with 100+ full time employees -must give advance notice of plant closing or mass layoff if 50+ employees affected notice must be given to each affected employee 60 days in advance of closing or layoff notice must be form perm term and reduction in work time of 50% or more for 6 months or longer employees who do not receive proopr notice may sue for up to 60 days back pay ben inter and attonrey fee local government may sue comp for up to 500 per day for each day no notice some states have plant closing requirements beyond federal requiremetns