Employment Law Final

ERISA: Pension Plans 2

A defined benefit plan: guarantees a certain benefit each month, calculated according to a formula. - The employer must assure that enough funds are available to make these payments. - The employer assumes the risk. A defined contribution plan: guarantees the contributed amount, to be invested by the employee. - The amount of the benefit depends upon the success of the employee's investment. - The employee assumes the risk. ---------------------- Plan funding requirements are very important and complex. Funding requirements are more stringent for defined benefit plans.

Work-Life Conflicts

A diverse workplace poses several work-life conflicts and employment law issues. - Workers who are increasingly female, older, or disabled may require leave for parenting and medical problems. - Workers may leave to serve in the military. - Diverse workforces may have difficulty with an English only language requirement. - Gay, lesbian, bisexual and transgender persons in the workplace may encounter difficulty.

The General Duty Clause

It is impossible for OSHA to create a standard for every workplace hazard. The "general duty" clause provides: --"Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Reasonable Accommodation of Disability

Two similar laws govern the employer's obligations to accommodate disability: - For private employers and state and local governments, the American with Disabilities Act of 1990. - The Rehabilitation Act of 1973 for public employers and any program or activity receiving Federal financial assistance. The ADA has been amended by the Americans with Disabilities Amendments Act of 2008, which was designed specifically to broaden the ADA's application after several restrictive Supreme Court interpretations.

The WARN Act 1 *Know that this act requires that you give advanced notice before closure of a significant part of your operation

Worker Adjustment and Retraining Notification Act (WARN), known as the "plant closing law" WARN Act requires covered employers to give 60 days notice to affected employees (or to union representatives) and to state and local government officials before certain mass layoffs or plant closings. Details and definitions under the Act are exacting.

Downsizing

"Downsizing" or "Reduction in Force" (RIF): common terms used to describe the involuntary termination of multiple employees due to business concerns, not employee performance. Common business concerns leading to downsizing/RIF: business downturns that result in going out of business, closing facilities, relocating, subcontracting, outsourcing, and reducing staffing to save money.

Privacy: Electronic Communications Privacy Act 2

"Intercepting" generally means capturing the communication at the exact time it is being sent. Interceptions are legal if prior consent was granted. *These last two points, don't matter: Communication service providers are exempt. --Example: An employer's search of an employee's stored emails in its own system is not a violation. Business users of the provider's equipment are exempt if the equipment is used in the ordinary course of business. --Example: An employer could install additional extension phones to listen in on employees' business (but not personal) calls.

Reasonable Accommodation (Examples)

- Making facilities accessible (ramps, elevators, evacuation plans) - Restructuring jobs - ** Job transfer to a vacant job - ** Devising part time or modified work schedules (very common request) - Providing additional time on a test - Providing voice recognition software - Providing qualified readers or interpreters (sign language) - Leaves of absence (to have surgery or rehab an injury) Job transfer -- only after an employee "medicals out" of their current job. - Entitlement to a job for which the employee is minimally qualified (and ranked below other candidates)? - Or merely allowed to compete? - See Huber v. Wal-Mart, p. 327... (Can still apply for the new position, but hire the most highly qualified applicant).

Restrictive Covenants

(Convenant = a promise) Restrictive covenants: contractual agreements that aim to protect employer interests by limiting the ability of former employees to do such things as: - going to work for competitors - disclosing trade secrets or other sensitive information - soliciting clients or former coworkers to do business with or join other firms - making disparaging comments about their former employers The increasing use of restrictive covenants to constrain the activities of former employees raises important legal and public policy questions.

Defined contribution plan

(Far more common) This plan guarantees the contributed amount, to be invested by the employee. - The amount of the benefit depends upon the success of the employee's investment. - The employee assumes the risk.

FMLA Qualifying Events

- * Birth of a son or daughter - * The inability of the employee to perform the functions of his job due to a serious health condition - * The need to care for a spouse, son, daughter or parent with serious health condition - Placement of a son or daughter with the employee by adoption or foster care - The need to care for a service member who suffered a serious injury or illness while on active duty - Any "qualifying exigency" arising because a family member is or soon will be placed on active duty ------------ The first 3 are by far the most common - birth, employee's own serious health condition, serious health condition of a family member.

Employment at will with exceptions

- An employer may terminate an employee for any reason except prohibited reasons (exceptions) developed by statute or common law since 1937. - Applies to a significant majority of the workforce

Anti-harassment policies should include:

- Clear definitions of the prohibited conduct. - A clear and accessible procedure for reporting harassment (talking to HR, supervisor, or another avenue). - A requirement that employees with knowledge of harassment report it to the appropriate person. - Assurance of protection from retaliation (if you tattle on someone, you want to be protected from retaliation). - A promise of confidentiality in handling complaints to the extent possible (don't say you will never disclose the information because you will have to take corrective action at some point). - A process for handling complaints promptly and thoroughly. - Assurance that corrective action will be taken if harassment is found. - Assurance that violators will be subject to disciplinary action (be careful with this because it could create expectations. Zero tolerance? flexibility in reprimand- suspension, classes?). - Assurance that the rights of the accused will be respected (we care about accused harassers because maybe they didn't actually do it- fair investigation is necessary, it's not a witch hunt).

Just cause/due process

- Employers bear the burden of proving that terminations were proper and based on good reasons. - Applies to about 20% of workforce (typically unionized employees and government workers)

NLRA: Employee Rights

- Engage in self-organization (i.e., unionizing with co-workers) - Form, join, or assist labor organizations - Bargain collectively with their employer through representatives of their own choosing - Go on strike - Engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection - Refrain from such activities (it is protected under the NLRA to chose not to do any of those things) ---------------------- NLRA intends to give opportunities for employee self-determination, not necessarily to pave the way for unions

Employment at will

- Existed prior to 1937 - There was no such thing as wrongful termination.

FMLA: Employer Notices of Leave 1

- Notice of Eligibility: A specific statement that the leave is FMLA leave and will be counted against employee's leave entitlement ---Must be provided with 5 business days of request or employer becoming aware of the qualifying event - Medical Certification: Requires provider to certify the serious health condition - Designation Notice: Informs the employee of their right to substitute paid leave for FMLA leave, whether employer will require that, and any conditions for the substitution ----------------- Important for employers to start the FMLA clock. Tracking leave time is important for employers who want to minimize time off Dept of Labor Forms

Common Religious Accommodation Requests

- Schedule modification - Dress code variation - Involvement in certain medical procedures such as abortions - Food handling or dietary needs - Time/Space for prayer during the workday ---------------- See discussion on pp. 332-339 - Consider facilitating schedule changes (voluntary shift trades, use of holidays/vacation, transfer). - Dress code - safety considerations, "public image," orderliness are all legitimate considerations. EX: Catholic pharmacists ask to be excused from anything to do with contraceptives. EX: Abercrombie dress code case (Applicant wanted to wear hijab headwear for Muslim religion) - is it an accommodation case? Or conventional religious discrimination?

Religious Organization Exemption

- Title VII contains a religious organization exception that absolves religious organizations from any liability for discriminating on the basis of religion. - Religious organizations can limit employment to or have a preference for persons sharing the same faith. ---"ministerial exception" - This exemption now includes not only religious activities, but also secular endeavors such as schools, hospitals, and shops, at least when they are non-profit organizations.

Unfair Labor Practices (ULP) 1 Employers must refrain from:

1. Interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA 2. Dominating or interfering with the formation or administration of a labor organization 3. Discriminating against employees for the purpose of encouraging or discouraging membership in any labor organization 4. Retaliating against employees for filing charges or giving testimony under the act 5. Refusing to engage in collective bargaining ---------------------------- 8(a)(1) and 8(a)(3) are the most common 8(a)(2) - see discussion on pp. 473-474 regarding employee involvement/participation programs - Where these programs "deal with" employers on subjects that are typically covered by collective bargaining, then they can be labor organizations and dominated by the employer (given that they were formed by the employer) --- Contrast with delegation of managerial functions to groups (not prohibited) - No good deed goes unpunished 8(a)(3) - disparate treatment cases - substitute CA for race/sex/disability/religion, and apply the same discrimination frameworks - direct evidence, burden-shifting, etc.

Privacy Torts

1. Intrusion Upon Seclusion 2. Public Disclosure of Private Facts 3. False Light 4. Intentional Infliction of Emotional Distress

Key enforcement concepts

1. OSHA is stretched thin 2. Plant inspections can yield violations 3. There are appeal rights 4. Employers can delay corrective action pending appeal 5. Fines/Penalties are often very soft

Elements of a Claim -Interference with FMLA Rights 2

3. She experienced a qualifying event which entitled her to FMLA leave 4. She provided her employer with sufficient notice of her intent to take leave 5. She had not already exhausted her maximum leave entitlement for the relevant 12 month period 6. FMLA benefits to which she was entitled were delayed or denied by the employer

Unfair Labor Practices (ULP) 2 Labor Unions must refrain from:

1. Restraining or coercing employees in the exercise of their rights under the Act 2. Causing an employer to discriminate against an employee for the purpose of encouraging or discouraging membership in a labor organization 3. Refusing to engage in collective bargaining 4. Broadening labor disputes to include neutral employers ("secondary boycott": encouraging the public to boycott not the employer, but another entity that does business with the employer.) 5. Charging excessive or discriminatory initiation fees or dues 6. Causing an employer to pay for work not performed ("featherbedding") 7. Picketing for more than 30 days for the purpose of obtaining union recognition

Elements of a Claim -Reduction in Force (Age) 2

1. The downsized employee was age 40 or over; 2. He was performing his job to his employer's reasonable expectations; 3. He was terminated (or suffered another adverse employment action); 4. Other similarly situated employees (with similar skills, etc.) who were substantially younger were treated more favorably; OR there is additional direct, circumstantial, or statistical evidence indicating that the plaintiff would not have been discharged "but for" his age. If a prima facie case is shown, the employer must provide a lawful reason for the termination. If the employer provides a lawful reason, Plaintiff may show that the reason is pretext and it is more likely that the decision was based on the employee's age.

FMLA: Employers Must Provide

1. Up to 12 workweeks of leave over a 12 month period for qualifying employees (more later); -- Unpaid leave, but employees may be required to use paid sick/vacation time. 2. Maintain health insurance under the same conditions as if the employee had not taken leave; and 3. Restore employee to the same or an equivalent position upon return from leave -- Same pay, benefits, and terms and conditions --------------------- - 12 workweeks - increments as low as one hour - 12 month period - can be a calendar year, a rolling year, or any other fixed 12-month period --- Regardless of the one you choose, it must be made known to your employees - see Bachelder, p. 361-363

Age Discrimination in Employment Act 2 At least one or two q's on this on final

3) Employees must be given at least 21 days to consider waivers (45 days for group early retirement offers); and 4) Waiver agreements do not become final—and can be revoked by the employee - until 7 days after acceptance Only claims that arose prior to the date of the waiver can be waived. If these requirements are not met, the ADEA waiver is unenforceable and any severance payments or other consideration provided to support the agreement are not recoverable by the employer.

Actual Disability

A person's disability must substantially limit one or more major life activities, such as: - Caring for oneself; - Performing manual tasks; - Seeing; hearing; eating; speaking; - Concentrating;* thinking;* communicating;* working; standing; lifting; bending; breathing; - Major bodily functions such as brain, bladder, normal cell growth, & immune system functioning. Consider "invisible" disabilities: very difficult to measure/quantify how one's ability to concentrate, for example, is limited by a health condition. Usually requires an expert medical opinion.

Elements of a Claim -Breach of an Implied Contract (Handbooks)

A specific promise was made. The promise was made frequently and consistently. The source of the promise was someone with authority to offer it. The promise was not highly conditional. The employer's entire "course of conduct" was consistent with the promise. There was an exhaustive listing of dischargeable offenses in a handbook. A change to a less-protective policy was not communicated to employees. There was no effective disclaimer.

Animal service

Has to be a dog or miniature horse. Has to be trained to help you work/do some task. Don't need to supply paperwork.

Enforcement of the OSH Act 3

Any citations and fines are assessed by directors at OSHA area offices and based on the officer's report. Citations must be posted in the workplace near where the violations occurred. Employers have 15 days following receipt of a citation to contest it. Employers are not required to correct violations until all appeals have been exhausted.

Enforcement of the OSH Act 2

An inspection begins with a conference, explaining the circumstances of the inspection. An employer representative has the right to accompany the OSHA compliance officer, but may not intimidate or interfere. The compliance officer creates a report, noting observations, taking photographs, taking instrument readings, and asking questions of employees. Apparent violations are noted.

Reasonable Accomodation

An employer's obligation to ___________________ is unique to the protected classes of disability and religion. However, the legal basis and nature of these obligations differ. - An employer's obligation to ____________ disabled persons is more extensive than religion. - It is somewhat more difficult for employees to establish entitlement in the case of disabilities than in the case of religious beliefs.

Reasonable Accommodation

Achieving reasonable accommodation should be a continuing, interactive process between employer and employee. - Don't ignore employee signals ... "How can we help you?" - Establish an accommodations request procedure - Consider the employee's input about possible accommodations - Seek input from the employee's medical provider about how the health condition limits the ability to perform job functions Document the communications regarding accommodation efforts Keep medical information segregated and confidential!! --------------- Review pp. 319-321 of the textbook Interactive process is critical - did the employer make a good faith effort to find an accommodation? - Courts are hesitant to second-guess an employer's substantive judgment on the reasonableness of an accommodation - Courts are willing to find liability for the failure to engage in the interactive process Unnecessary disclosure of medical information is a stand-alone violation of the ADA.

FMLA: Employer Notices of Leave 2

Any requirements for payment of employee share of health insurance premiums, arrangements for making payments, and employer's right to recover premiums if the employee does not return to work Any requirements for employee to present fitness for duty certification prior to return A statement of the employee's right of restoration to the same or equivalent job Designation of key employee status (of the company's top 10%) if employee meets the criteria, and circumstances under which restoration might be denied (essentially, employer must let employee know at time of leave that they are in the top 10% of pay scale and they might not get their job back when they come back to work)

ERISA: Manage Benefits as Fiduciaries

Anyone who exercises discretion or control over a benefit plan is a fiduciary (acting in that person's best interest), including employers and their agents who administer plans or give advice. Fiduciaries must manage such assets solely for the benefit of the beneficiaries, and with prudence (meaning good judgment). For pension plans, fiduciaries must diversify plan assets, monitor performance, and refrain from transactions that raise a conflict of interest. - Common concern - investing in company stock They must provide accurate information and disclose material facts. ----------------------------- Some plan administrators are employees, others are appointed to oversee plan administration but are not employees. Company stock - many executives are compensated in part with company stock. - They want a higher stock price which is accomplished through ... demand for stock

Factors Determining "Just Cause"

Arbitrators consider these factors: - Was there a clearly communicated rule or standard prohibiting the behavior that was engaged in by the employee? - Is the rule or standard a reasonable one? - Has the rule or standard been consistently enforced? - Was the employee afforded due process (notice)? - Is there sufficient proof that a rule was violated? - Was progressive discipline applied? - Was the discipline commensurate with the offense? - Are there any factors calling for imposition of a lesser penalty?

False Light

Broad and intentional disclosure of false and offensive information i.e., lying about the reason for letting someone go

Enforcement of the OSH Act 1

Enforcement of the OSH Act comes about from: --Complaints by employees --Inspections by OSHA OSHA has limited resources and must prioritize which workplaces to inspect. Most inspections are unannounced. --But unless an emergency exists, OSHA is required to obtain a search warrant to search business premises, unless the business agrees.

Elements of a Claim - Failure to Reasonably Accommodate Disability

Employee has the burden of proving the existence of reasonable accommodations Employer's Defense: employer can prevail by proving that a reasonable accommodation(s) would pose an "undue hardship" -->Very difficult for large employers with significant resources to prove "undue hardship." (defense even when the accommodation is reasonable) -->Employers usually concentrate on whether the accommodation was reasonable

Enforcement of the OSH Act 4

Employee reports of hazards are crucial to enforcement and the identity of an employee who reports a hazard to OSHA is protected. Employers must not retaliate against employees who seek OSHA inspections or complain about safety conditions.

Intrusion Upon Seclusion

Highly offensive intrusion into private area (physical space or perhaps online?) --------------------------- IUS - p. 583 Unannounced locker, locker room, bathroom searches, purses, briefcases

Chapter 14: Unions and Collective Bargaining

Chapter 14: Unions and Collective Bargaining

Chapter 15: Occupational Safety and Health

Chapter 15: Occupational Safety and Health

Chapter 17: Privacy on the Job - Information, Monitoring and Investigations

Chapter 17: Privacy on the Job - Information, Monitoring and Investigations

Chapter 18: Terminating Individual Employees

Chapter 18: Terminating Individual Employees

Chapter 19: Downsizing & Post-Termination Issues

Chapter 19: Downsizing & Post-Termination Issues

Chapter 9 Continued: Harassment

Chapter 9 Continued: Harassment

Expectation of Privacy (If you don't take anything from this course, remember this.)

Constitutional privacy protections (like the 4th Amendment) apply to public, but not private, employees. --However, there are other privacy protections available to private sector employees. Whether there is a reasonable expectation of privacy is a case-by-case determination based on policies, practices, and other circumstances.

Public Employees 4

Constitutional protection on free speech grounds is afforded only to a public employee who is speaking as a citizen on matters of public concern, and not as an employee. Public employers must respect the constitutional rights of their employees to freedoms of religion, speech, and association. Termination or other disciplinary action should be imposed only when the exercise of these rights clearly interferes with an employee's ability to do his job or with accomplishment of the public agency's mission.

Interviews and Interrogation

Can I "take the 5th?" (*5th Amendment right to refrain from testifying against one's self ... limited to criminal law). --Generally, there is no right to refuse to answer an employer's questions. Unionized employees are entitled to union representation in meetings that the employer reasonably believes is likely to result in discipline or discharge. --Known as Weingarten Rights (*He will ask a question about this on the final exam). No similar right in non-unionized settings.

ERISA: Pension Plans 3 (SKIPPED THIS IN CLASS)

Cash balance plans are defined benefit plans that have features of defined contribution plans (hybrid plans). They pay a benefit based on average annual income over a working lifetime, while traditional pension plans formulate benefits based on later, usually higher-paying years. A conversion from a traditional defined benefit plan to a cash balance plan may reduce benefits to older workers, but have generally been found to be lawful.

Chapter 10: Accommodating Disability and Religion

Chapter 10: Accommodating Disability and Religion

Chapter 11: Work-Life Conflicts

Chapter 11: Work-Life Conflicts

Chapter 12: Wages, Hours, & Pay Equity

Chapter 12: Wage, Hours, & Pay Equity

Chapter 13: Benefits

Chapter 13: Benefits

The WARN Act 3

Counting employees to determine whether WARN applies is problematic because downward fluctuation in employment levels is inherent in the circumstances under which the Act is applied. The relevant point in time for determining coverage is the date that first notice of a closing or mass layoff is required to be given (60 days before downsizing). There may be "waves" of layoffs, none of which is large enough to require notice, but employment losses over a 90-day period can be combined to prove a mass layoff. Multiple notifications may be required.

Bargaining

It is an unfair labor practice (ULP) to refuse to bargain, but no obligation to reach agreement Both parties have a duty to bargain in good faith. --Mandatory subjects of bargaining --Permissive subjects of bargaining ------------------------- Good faith - meet, exchange proposals and provide rationale, respond to proposals, but NO AGREEMENT REQUIRED

Elements of a Claim- Failure to Reasonably Accommodate Religion 2

Defense: If a prima facie case is established, the employer must show that: - A reasonable accommodation was offered, but not accepted; or - No reasonable accommodation was available that would not impose an undue hardship on the employer.

Administrative Employees

Determining whether someone is exempt from overtime pay based on administrative duties is problematic Performing office work for or with managers is not sufficient The primary criterion is whether the employee performs office or nonmanual duties which relate to company operations & policy, rather than to the goods or services it sells Another important criterion is the exercise of discretion & independent judgment

Determining Compliance with Wage & Hour Standards

Determining whether wage & hour standards have been met requires accurate information on -- compensation received, -- compensable work hours, and -- the exempt or non-exempt status of employees Record-keeping burden is on the employer! Although wages generally must be paid in cash, calculation of the minimum wage may include other benefits such as lodging and meals provided for employees' benefit ----------------------- If an employee asserts they worked more hours than they were paid, the burden is effectively on the employer to disprove that through records of hours worked. Generally, FLSA claims look back 2 years in time; 3 years for willful violations.

Disability

Disability under the ADA includes: - A physical or mental impairment that substantially limits one or more major life activities, or - A record of such impairment, or - Being regarded as having such an impairment. Example: Hearing loss, vision loss, arthritis, asthma, depression, anxiety, PTSD, etc. However, pedophilia, transvestites, and vision that is correctable through glasses is excluded. 2008 amendments have shifted the focus from whether the employee/applicant has a qualifying disability to whether entities covered by the ADA have complied with their obligations. After 2008 amendments, employers have concentrated their efforts on the accommodation process, not questioning whether the employee has a qualifying health condition/impairment.

Effect of Disclaimers

Disclaimers in are written statements in employment documents that deny that statements in those documents create any contractual rights binding on the employer. Recommended: Employers should incorporate disclaimers into employee handbooks to preserve at-will status. Disclaimers should be communicated to employees and employees should acknowledge receipt in writing.

Constructive Discharge 1

Disputes over whether an employee quit or was fired are common. If the employee truly resigned, he/she cannot sue for wrongful termination. But employers cannot avoid the legal consequences of terminations by effectively, but not officially, discharging employees (essentially, forcing them out). --A quit is a termination when an employer creates intolerable working conditions with the intention of forcing an employee to quit - a constructive discharge. --The quit is construed as a termination if, under the circumstances, a reasonable person would have felt compelled to quit.

Medical Information - OSH Act

Employees and unions have the right to access members' medical and exposure information. Such access must generally be provided within 15 working days. Medical monitoring of employees may be required. *Records of exposure to toxins must be kept for 30 years. Medical records must be kept for the duration of employment, plus 30 years. p. 589

Terminating an Employee 1

For an employee, the loss of a job can be life-altering, affecting his ability to care for himself and his family, damaging career prospects, and damaging self-esteem. For an employer, the undertaking is stressful, sometimes dangerous, and apt to prompt legal actions. Terminations are more likely than any other human resource action to result in legal claims.

Two Primary Tests

Duties Test Salary Basis Test

The Employee Retirement Income Security Act (ERISA) 1

ERISA governs benefit plans broadly, not only pensions. ERISA categorizes benefits as: - Pension plans (to provide retirement income) - Welfare plans (covers all other benefits, including health care insurance, childcare subsidies, pre-paid legal services, etc.) Benefits not covered by ERISA include premium pay, sick pay, vacation pay, college scholarship or tuition plans, and the like.

The Employee Retirement Income Security Act (ERISA) 2

ERISA preempts (trumps, overrides, nullifies) state laws even remotely relating to the regulation of benefit plans. State and city laws requiring employer contribution to health care insurance are likely pre-empted by ERISA. ERISA is a complex law containing four Titles. Our focus will be on the employee rights provisions of Title I. ---------------------------------- Preemption: federal law nullifies state and local laws that not only conflict with federal law, but in the case of ERISA, relate to the subject matter of employer-provided pension and welfare plans

ERISA: Refrain from Interference or Retaliation

ERISA prohibits discrimination against a beneficiary - for exercising any benefit right to which he is entitled, or - for the purpose of interfering with benefit rights to which he may become entitled. This rule applies to both pension and welfare plans. Interpreted narrowly: applied only to cases in which an adverse employment decision was made for the express purpose of defeating such rights. Rule: Employers must not discharge or discriminate against employees because they have used benefits to which they are entitled or to prevent them from using benefits to which they are entitled.

ERISA: Pension Plans 1

ERISA regulates pension plans more closely than welfare plans. Pension plans must "vest" (secures and cannot be taken away from you) after a certain period of time, resulting in a nonforfeitable right to a pension. Pension plans may be modified or discontinued, but plan participants must be able to retain benefits already accrued. The Pension Benefit Guaranty Corporation was created to protect beneficiaries of defined benefit plans. --------------- What are pension plans? Employee contributions vest immediately Cliff vesting - no employer contributions vest until the specified time (usually 5 years), and then it is 100% Gradual vesting - employer contributions best in portions over time (often 20% per year beginning in year 3 of employment) Once vested, the employee is entitled to the benefit even if they leave the company, although not until they reach eligibility age. (Employees can and do receive whatever money they have accrued even if they leave before 5 years).

ERISA: Deliver Promised Benefits

Employees may sue for a denial of benefits. If the plan administrator had discretion to determine eligibility for benefits, the court reviews for abuse of discretion. Conflicts of interest between beneficiaries and an administrator who has a direct financial stake in limiting access to benefits may be taken into consideration, but they are not legally prohibited. Administrators of benefit plans must - base benefit determinations on plan documents, - have reasons for their decisions, and - use all the current and relevant information available to them. --------------------------------- Abuse of Discretion: Was the administrator's decision arbitrary and capricious? Not whether it was the correct decision/interpretation. Conflict of interest: employer pays for the plan and decides on benefits rights

Religious Advocacy and Religious Harassment

Employees sometimes convey their religious beliefs to others in the workplace. Such proselytizing puts employers in a difficult position. - On the one hand, it is part of the proselytizing employee's religious beliefs, potentially requiring accommodation. - At the same time, employers are obligated to protect their other employees from religious harassment. ---The religious advocacy of one employee can be the hostile environment - based on unwelcome, pervasive religious communications - of others. --------------------------- pp. 339-340 - HP case with diversity posters and anti-gay Bible verses - Distinguish between "irritating/annoying" and "demeaning/degrading" - good luck!! - Employer's beliefs/practices can also infringe on employee rights - see daily devotions case on p. 340 - Special issues with public employers and the 1st Amendment - "Servant of the Lord Jesus Christ"

Unemployment Insurance

Employees who involuntarily become unemployed and are able to work, available for work, and actively looking for it are eligible to receive unemployment insurance. - Employees who are discharged for misconduct or who voluntarily leave are not eligible for unemployment insurance. To be eligible, employees must show "an attachment to the workforce" and be able and willing to accept suitable work. Employers must provide clear statements of the reasons for terminations and supporting evidence to the state agencies that decide unemployment insurance claims.

Decertification

Employees' procedure to vote out their union

Exclusive Representative

Employer may not deal directly with represented employees

Privacy: Electronic Communications Privacy Act 1

Employers (and others) are prohibited from: - Intentionally intercepting (through the use of electronic, mechanical, or other devices) wire, oral, or electronic communications - Disclosing such information - Unauthorized accessing and disclosure of electronic communications stored by an ISP The distinction between "intercepting" and "accessing" has proven troublesome for email and internet transmissions. ----------------------------------------------- Stored Communications Act limits the ability of nongovernmental entities to compel access to stored information at an ISP.

FMLA Retaliation Claims

Employers are also prohibited from retaliating against employees who oppose practices that are unlawful under the FMLA. Apply the usual retaliation analysis: - Protected activity - Adverse action - Causation?

What Benefits Must Employers Provide?

Employers are required by federal law to make contributions for their employees to the following benefits for employees: - Social security - Unemployment insurance - Workers compensation Federal law does not require that employers offer health insurance, but if they do, those plans must provide certain essential health services. Some states & cities have attempted to pass laws requiring contributions to health insurance, but they are the exception to the rule that generally, employers are not required to offer benefits. If a private employer voluntarily offers benefits, it must comply with the Employees Retirement Income Security Act (ERISA).

How safe is "safe enough?" 2

Employers arguing that compliance is infeasible must show that it would be impossible or render performance of the work impossible. More specific standards take precedence over general ones. Rule: Employers must become aware of and comply with all standards that apply to their operations.

Decision to Downsize 2

Employers must not selectively close individual facilities to inhibit unionization at their remaining facilities. - Employers are always allowed to close completely. Employers must negotiate with unions over the effects of downsizing decisions on employees (transfer rights, retraining, severance pay, and extended benefits). If the company is sold, successor employers must bargain with unions that represent employees at acquired companies, although they are generally not bound by the terms of existing labor agreements.

Determining Compensable Time

Employers must pay for all compensable time It is not always obvious when work begins and ends - Work time may be interrupted by breaks, waiting or downtime - Employees often work after hours or from home Employers must pay for work they "suffer or permit" (allow) To avoid liability for overtime, employers must strictly enforce policies prohibiting overtime without authorization

ERISA: Provide Claims & Appeals Procedures 1

Employers must provide "reasonable" claims and appeal procedures. Standards for handling health insurance claims are more stringent than for other benefits. Employers may not impose filing fees on claims. Decisions regarding claims must be made within 90 days, but more quickly for health insurance claims. - Urgent care claims must be decided within 72 hours. - Claims for treatment already received, within 30 days. -------------------------- Health benefit claims: generally require faster responses from the plan

Response to Reports of Harassment

Employers must respond promptly to stop and correct any harassment. (Response must be appropriate for the alleged conduct- i.e., proportionality between the offense and the punishment. Sexual assault=termination). Once it learns of harassment, it must take prompt action, even if the victim does not want action taken. Employers should launch a fair and prompt investigation, not one pre-determined to reach a certain conclusion.

Recording & Reporting Requirements

Employers not exempt from record keeping are required to establish and communicate to their employees specific procedures for reporting workplace injuries and illnesses. Employers are required to record (within 6 days of their occurrence): --all work-related injuries or illnesses that result in death, --days away from work, --restricted work, --transfer to another job, --loss of consciousness, or --medical treatment beyond first aid --and any other "significant" injuries or illnesses diagnosed by licensed health care professionals. Violations of such requirements can be costly.

Lockouts

Employers refuse to allow employees to work. (The NBA did this a couple of years ago until they could reach an agreement.)

Harassment Policies

Employers should establish, communicate and enforce policies prohibiting harassment. Use of anti-harassment policy will help demonstrate that reasonable care was used to prevent and correct harassment.

Responding to Workplace Injuries

Employers should require that employees report all workplace injuries as soon as possible, so that treatment can be provided. Employers should err on the side of caution in referring injured employees for medical treatment. Reports of injuries should be investigated immediately and thoroughly. Hazards that caused the injuries should be identified and abated. Workers' compensation claims should not be contested unless there are reasonable grounds for doing so.

Remedies for Harassment

Employers should take initial, temporary measures on receipt of a complaint, then long-term remedial measures based on the outcome of the investigation. -> Transfers, reassignments, leaves of absence and closer supervision are all possible initial measures. (In general, the alleged harasser, not the victim, should be transferred or reassigned.) There are conflicting views about what, if any, written records should be kept of such investigations, and whether attorney-client privilege should be claimed. -> But records should be kept of harassment charges and their dispositions.

Termination Standards

Employment at will Employment at will with exceptions Just cause/due process

English Fluency and Accents

Employment decisions based on English fluency and accents may constitute national origin discrimination. However, an employee's language proficiency and/or accent can be considered when communication is a significant part of the job, and the employee's language limitations interferes with his ability to perform the job. EEOC's guidelines provide that broad English-only rules applied at all times are presumptively discriminatory. --------------------- Fluency requirements must be job-related -- Customer service -- Safety concerns where communication in the workplace is necessary Broad/Strict English only rules: EEOC finds them suspect, but not all courts agree with the EEOC. -- Must be job-related and no more restrictive than necessary (for example, not applied during breaks or away from customers)

Interference or Retaliation?

Ex: Employee takes FMLA-covered leave of absence and is terminated two weeks after returning to work. Denied benefits (interference)? Opposed illegal practices (retaliation)? Courts are split on how this claim is analyzed, but adverse action because of an employee's exercise of FMLA rights is clearly illegal.

Primary Exemptions from FLSA

Executive - Management is primary duty; supervise others; highly compensated Administrative - Primary duty is performing office work directly related to management; exercises discretion; highly compensated Professional - Primary duty requires advanced knowledge and discretion and judgment Outside salespeople (external from company; door-to-door) Computer programmers Teachers ---------------------- Figure 12.2 is helpful in textbook "White collar exemptions" see next definition

FLSA & Child Labor

FLSA does not limit the number of hours required to be worked Does prohibit "oppressive child labor" - Employees must be 16, or 18 for dangerous work - 14 & 15 year olds may work in certain service or retail jobs, for limited hours - While school is in session, minors may work no more than 3 hours/day, between 7 am and 7 pm - When school is not in session, they may work up to 8 hours/day, til 9 pm

Fair Labor Standards Act

FLSA requires payment of a minimum wage; enforced by the U.S. Department of Labor The minimum wage under the FLSA is currently $7.25/hr for each hour worked during a workweek (gross pay) Exceptions: - Opportunity Wage: Employers may pay workers under age 20 the hourly wage of $4.25 for their first 90 days. - Tipped Employees: Employees who customarily and regularly receive at least $30/month in tips may be paid $2.13/hr, as long as hourly wage plus tips equals the minimum wage. - New regulations require employers to advise employees about the amount of the tip credit being claimed - Only employees who regularly share tips may be included in tip pooling - Employers may deduct credit card processing fees from tips ---------------------------- $7.25/hour - took effect in 2009 Opportunity Wage workers can't be used to displace or reduce hours of existing employees. -- Rarely used because of the administrative complication Tips - employer not allowed to take a cut of tips if the employer is taking advantage of the tip credit

Whistleblower Protection Statutes 2

Federal government employees are covered by the federal Whistleblower Protection Act (WPA). The WPA prohibits taking or failing to take a personnel action because an employee or applicant has disclosed information that is reasonably believed to show: 1) A violation of a law, rule, or regulation; or 2) Gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

Actual Disability

First prong: No definitive list of covered disabilities The EEOC identified some which should qualify (deafness, autism, diabetes, etc. - see p. 311) Focus is on how the health condition impacts the employee's functioning, rather than the diagnosis/label. Both physical and mental impairments are covered, although some conditions are expressly excluded (transsexualism, pedophilia, pyromania, others) - Examples of conditions on p. 311. - Note that many health conditions vary widely in their severity/impact so it labeling by diagnosis is unwise - By far the most common disability - Mental health conditions are the most difficult for employers to deal with

Protection under the NLRA: Concerted Activity *Important

For activity to be protected under the NLRA, it must be: - "Concerted activity" undertaken with or on behalf of other employees, not on behalf of an individual employee only, and - Undertaken in "mutual aid or support" of a group, not solely for an individual employee's benefit See pp. 464-465 for examples Distributing flyers, group discussions of concerns about work conditions ------------------------------- Concerted activity: covers far more activity than formal collective bargaining and extends to all employees under the NLRA, not just union shops - Needs group action, not just "personal gripes" - Also, in union shops, exercise of any right under the CBA is likely to be CA, even if it is individual action - Also includes the "preemptive strike," meant to prevent an employee from engaging in CA p. 469: policies like pay secrecy, no solicitation, no "negative conversations," limitations on right to be on premises, no fraternizing ... all may violate the NLRA if (1) they could be construed/interpreted to restrict CA, (2) were created in response to CA, or (3) if they had been applied to restrict CA.

Public Policy Exception to Employment at Will 2

Four kinds of the public policy exception are recognized: termination for: 1) refusing to commit an illegal act, 2) exercising a legal right, 3) performing a public duty, and 4) reporting illegal activity (i.e., whistleblowing: tattle-tailing). Rule: Employers must not terminate employees for refusing to commit an illegal act, exercising a legal right, performing an important public duty, or reporting illegal activities of employers and their agents.

What is key employee status?

From DOL: A "key employee" is a salaried, FMLA-eligible employee who is among thehighest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite. ... In order to deny restoration to a key employee, an employer must determine that the restoration of the employee to employment will cause "substantial and grievous economic injury" to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury. "An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer determines that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave."

Compensable Time

Generally, compensable time includes these: - Employer-required training - Traveling between worksites - Waiting while on duty - Restrictive on-call arrangements - Meal periods when not substantially relieved from duties - Rest periods of 20 minutes or less ------------------- Distinguished from "compensatory time" On-call factors: report time, frequency of call, restrictions on activities Donning/Doffing (taking clothes on and off) cases: "integral and indispensible?" - Are the work clothes required or a matter of preference?

Searches 1

Generally, employers may conduct workplace searches, subject to the Fourth Amendment (for public employees) and privacy torts (particularly intrusion upon seclusion). --Obtaining consent is best. Employers should: --Establish policies, --Notify employees regarding the circumstances under which searches will occur, and --Conduct searches only as stated.

Non-Compensable Time

Generally, non-compensable time includes these: - Pre-employment tests - Time traveling to and from work - Waiting to start work or after being relieved from duty for a definite & useful time - Most on-call time spent outside the workplace - Meal periods free of duties (usually 30 minutes or more) ------------------ Commute time is not compensated

Enforcing Labor Agreements

Grievance procedure: means of filing complaints under the collective bargaining agreement (CBA). Union is required to represent the employee, but is not required to take every grievance to arbitration. Individual employees cannot agree to resolve grievances in ways that would conflict with the CBA. In arbitration of grievances, the arbitrator decides disputes regarding the labor agreement.

Elements of a Claim -Discriminatory Termination 2 *Probably going to want to know this

If Plaintiff proves a prima facie case, the employer must prove a nondiscriminatory reason for the termination. If the employer proves a nondiscriminatory reason, plaintiff must show that the articulated rationale is pretext and that the decision was more likely motivated by discrimination.

Union Organizing: Representation Election Procedures (cont.)

If an election is ordered, the employer must provide the names and addresses of all employees in the unit to the union, so that they may be contacted before the election. --It is during this time between the order and the election that activities of both parties are closely reviewed. Employers may also voluntarily recognize a union.

Bargaining (cont.)

If the parties agree, a mediator may be called in, but the mediator cannot impose an agreement. If the parties are unable to reach agreement and a 'bargaining impasse' (you're stuck) is reached, then the employer can unilaterally implement its last, best offer.

Acting on Results of Investigations

If, following an investigation, the wrong conclusions are drawn and communicated to others, defamation claims may arise, and the qualified privilege may be lost. Recommended: Treat such information as sensitive and limit communication to those with a legitimate need to know. Employers who seek criminal prosecution should have reasonable grounds for doing so.

Health Insurance 1

In 2010, the Patient Protection & Affordable Care Act (PPACA) was signed into law The law is intended to insure that most Americans have affordable health care It also includes a number of provisions designed to reign in the cost of health care Provisions of the law are to be phased in between 2010 and 2014, when most terms apply; a final provision takes place in 2018 Plans existing prior to passage, with no significant changes may be "grandfathered" and exempt from some requirements ----------------------- (It essentially mandate health care coverage. If you are an employer of 50 or more, the PPACA is required or you get fined/taxed.)

Monitoring & Surveillance of Employees

In general, employers can train video cameras on their employees without significant legal concerns, at least in places open to view. Employers must not conduct surveillance of employees engaged in protected concerted activities, including union organizing. Recommended: If your firm uses video monitoring, inform employees that they are subject to monitoring and surveillance, even though such notice may not be legally required. p. 590-598

Public Employees 3

In general, public employers are responsible for affording their employees due process, both pre-termination and post-termination. Prior to termination, a hearing must be held that provides public employees with - notice of the charges against them, - explanation of the evidence, and - opportunity to present their side of the story. Following termination, a more elaborate hearing with opportunities to confront witnesses and present evidence is required (if requested by terminated employees).

Public Disclosure of Private Facts

Intentional, offensive disclosure of private facts that are not a legitimate public concern ------------------------------ PDPF - p. 584 Disclosure must be broad/significant. i.e., medical or other private info...

Union Organizing: Employer Response

Intimidation or coercion of employees is prohibited. Risky practices: --Asking employees about their preference for unions --Interrogation or polling of employees about their attitudes or how they will vote The NLRA permits employers to state their views regarding unionization at mandatory attendance meetings. --However, employers may not threaten reprisals or promise benefits for voting a certain way. --Ex. - "If the union wins, we will ship these jobs overseas and close the doors."

Terminating an Employee 2

Legal justifications for termination differ greatly for public sector employees or unionized employees, and private sector employees. Most of this chapter deals with private sector, non-union employees, the standard for which may be called "employment at will with exceptions". For unionized and public sector employees, the more stringent standard of "just cause/due process" controls. Legal standards differ for terminations of individual employees, than for terminations of groups of employees because of downsizings and the like.

Impermissible Grounds for Termination

Legal protections for wrongful discharge may be categorized as arising from these grounds: - Constitutional - Statutory - Common law -->contractual -->tort claims Some protections are available only to public sector employees, union employees, or employees with individual employment contracts.

Health Insurance 2

Major provisions of PPACA include: - A requirement that health plans cover immunization and preventive care services - A prohibition against requiring pre-authorization for emergency care - A prohibition against lifetime limits for essential health care - As of January 1, 2014, prohibits exclusions based on pre-existing conditions - Employers with at least 50 full-time employees (30 hours/week), must provide health care coverage to 95% of their employees and dependents up to age 26 or pay a penalty

Combining Exempt & Non-Exempt Duties

Many jobs combine exempt & non-exempt duties To determine whether the employee's primary duties are exempt in nature (and therefore not subject to overtime pay), courts consider the - Share of work time devoted to exempt duties - Relative importance of exempt vs. non-exempt duties - Employee's freedom from direct supervision - Wages paid to other employees performing non-exempt duties

Equal Pay Act

Men and women doing substantially equal work at the same employer in the same facility must be paid the same wage. Defenses: - A seniority system - A merit pay system - A payment system based on quality or quantity of production - Some factor other than sex

Just Cause/Due Process

Most employees are governed by the doctrine of "employment at will with exceptions". The higher standard for employers is "just cause /due process". Generally, terminations of employees who are unionized, work for government agencies, reside in Montana, or have written contracts of employment must meet a just cause/due process standard. Under this standard, employers bear the burden of showing that they had good reasons for their termination decisions and followed reasonable procedures. Due Process - statement of charge, opportunity to respond, investigation

Off Duty Conduct Laws

Most employees believe that their personal lives off the job are none of their employer's business, and should not affect their employment status. This view is not shared by their employers. About half of the states have off-duty conduct laws protecting an employee's autonomy off the job, but these are generally limited to protecting employees' off-duty use of tobacco and other lawful products.

Public Employees 1

Most governmental bodies have civil service laws, designed to insure that employment decisions are not based on politics, but on merit. Teachers and professors in public schools and universities sometimes enjoy the protection of tenure laws, designed to protect the central purposes of academic life: - to raise questions, - express controversial ideas, - and pursue the truth wherever it leads.

Essential Functions of the Job

Most jobs consist of essential and non-essential tasks. (Example: Word processing, filing, and answering phones are essential functions for many clerical jobs, but getting coffee for others, or lifting boxes of copier paper are probably marginal functions.)- note difference between marginal and essential*most important Rule: Under the ADA, a disabled person's ability to perform a job must be judged only in relation to the essential functions of the job in question. Very important to take an inventory of the essential functions of each job - once they are in question, it's too late! Employers must determine the essential functions of a job according to these criteria: - The position exists to perform this function; - Few other employees are available to perform this function; or - The function is highly specialized. Evidence of "essential functions" includes the employer's judgment, implications of not requiring the function, written job descriptions, and similar analyses. Focus on what needs to be accomplished rather than on how it is to be accomplished. Prior to 2008 Amendments: Many employees were caught in the position of needing a health condition that was so significant that they could no longer perform essential job functions.

Strikes and Other Economic Weapons

Most negotiations conclude without strikes (strike: stop coming to work). Private employers must not terminate employees for engaging in strikes, but strikers can be replaced. Economic strikes (strikes over employment terms: not getting paid enough, etc.) --Can be replaced --No reinstatement rights after strike is over; only can be put on recall list ULP strikes (strikes to protest employer ULPs) --Reinstatement upon unconditional request to return ------------------------- Economic - no right to reinstatement at the strike's conclusion; only waitlist ULP - reinstatement required upon the employee's unconditional request to return

Whistleblower Protection Statutes 1

Most states have whistleblower protection laws, although some apply only to public-sector employees. Some whistleblowers are protected under laws that pertain to specific safety-sensitive industries (including aviation and nuclear power). A variety of federal environmental laws incorporate whistleblower protections for employees reporting environmental violations by their employers.

Salary Basis Test

Must be paid a pre-specified sum of at least $455/week ($23,660/year) Pay cannot be docked for off time (pay docking rule- explained well in textbook) ------------------ - $100K or more with some admin/professional/exec functions - At least $23,600 or $455/week and on a salary basis (excluding teachers, lawyers, docs, outside sales; computer types can be paid $27.63/hr) - Salary basis - regular, equal payment independent of output or hours worked --- Limits the ability to suspend w/o pay - only in egregious policy violations like safety rules or sex harassment Penalties are drastic if you dock pay inappropriately

Decision to Downsize 1

National Labor Relations Act (NLRA) concerns: - Downsizing might be an unfair labor practice (ULP) if it interferes with employees' NLRA rights or is used to discriminate based on union activities. - Downsizing might be a mandatory subject of bargaining, requiring negotiation with union representatives prior to taking action.

Election bar

No elections within 12 months of each other

Noncompete Agreements *Test Q on this (Remember geography and time)

Noncompete agreements - A form of restrictive covenant - Designed to prohibit former employees from working for competitors. Enforceable or an unlawful restraint on trade? Example: 2 years; 50 mile radius Generally enforceable if it is no more restrictive than necessary to protect the employer's legitimate interests - Geography - where are the competitors? - Time - how long to train a replacement? - Enforceability varies considerably by state

Other Provisions 2

Nondisparagement clauses prevent employer and employee from saying negative or critical things about one another Nondisparagement clauses are now commonly included in severance agreements.

Permissive subjects of bargaining

Nonmandatory subjects that can be negotiated between labor and management --------------------------------------- Permissive subjects can be ignored, including business decisions (what product to sell, represent bargaining on behalf of persons not in the unit (retirees, supervisors or applicants) , pricing, capital investment decisions not involving labor costs, internal union discipline, ground rules of negotiations (means of reaching agreement, negotiators, ratification, interest arbitration, strike settlement agreements

Other Provisions 1

Nonsolicitation agreements prevent former employees from soliciting the firm's clients after the employee leaves. - Some courts give employers more leeway in using these agreements because they impose a lesser restriction on the employee's ability to earn a living. Trade secret: information that has economic value because (1) it is not generally known to others, and (2) the owner makes reasonable efforts to keep this information secret. - Courts have traditionally recognized a duty of employees under common law not to divulge such information.

Elements of a Claim -Disparate Treatment Termination 1

Plaintiffs must show: 1. The protected class characteristic(s) relevant to the case. 2. Prior to termination, the employee had been meeting the employer's legitimate performance expectations. 3. The employee was terminated (formally or constructively). 4. The employer sought a replacement or hired one with contrasting class characteristics, or 5. A similarly situated person with different protected class characteristics engaged in similar conduct, but was not terminated.

What Must Employees Do to Obtain Leave?

Notify their employers that a qualifying event has occurred for which FMLA leave is needed Foreseeable absence: provide employer with 30 days' notice Unforeseeable absence: provide notice "as soon as practicable" In serious medical emergencies, notice may be provided during or after absences

Health Insurance 3

Numerous lawsuits have been filed challenging the PPACA, and in particular, its requirement that individuals buy health insurance. Opponents argue that this requirement exceeds Congress' authority under the commerce clause, so that the law is unconstitutional. NFIB v. Sebelius (2012), the U.S. Supreme Court held that the PPACA was invalid under the Commerce Clause but valid under the taxing clause.

A Conflicted Environment

OSHA has the authority to adopt emergency temporary standards when there is "grave danger" to a new hazard. However, the normal process of adopting new safety standards is lengthy, arduous, litigious, and politicized, and not undertaken lightly. Many standards are non-existent or outdated. Some courts have interpreted OSH's protections narrowly. ---------------------------------------- pp. 512-514 Some standards are decades in the making OSHA's burden to prove that the standard "addresses a significant risk to" employee health

Medical Information- ADA

Only medical information that is job-related and consistent with business necessity can be obtained ("obtained" - does not apply to information that is volunteered by employees) from current employees. Employers must keep information regarding an employee's medical condition or history in a location apart from other personnel records and treat it as a "confidential medical record." Such information should be made available to managers, supervisors and first aid personnel for reasons of reasonable accommodation and treatment.

FLSA: Overtime Pay

Overtime pay is 1.5 times the regular pay for each hour in excess of 40 hours in a workweek. Except for minors, there is no limitation on the number of hours an employee may work in a workweek. Overtime pay must be calculated based on compensable time (time spent principally for the employer). Public employers only may provide "compensatory time" instead of overtime pay. ----------------- FLSA has no max hours provision, but bargaining agreements and/or state law may address that issue -- CA law that requires OT for > 8 hours/day; double time for > 12 hours/day Compensable time: time that must be compensated Compensatory time: extra time off in lieu of OT pay; only allowed for public employers -- Must be an agreement with the individual employees or their representative

Leave Polices Under the Pregnancy Discrimination Act

PDA: outlaws discrimination based on pregnancy, childbirth and related conditions under Title VII. It does not provide for leave for childbirth or related conditions. However, PDA require employers to treat pregnancy-related conditions no worse than other similar medical conditions. Must employers accommodate pregnancy-related work limitations? -------------------- Iowa Civil Rights Act 216: requires up to 8 weeks of "medically-indicated leave." -- Can't require pregnant employees to take leave if they are able to work. Young v. UPS (2015): UPS policy that provides light duty only for those injured on the job, ADA disabilities and those who lose their license for DUI. -- Court rules that if the plaintiff can show that others who were similar in their ability/inability to work were accommodated, this may constitute discrimination under the PDA.

Elements of a Claim- Failure to Reasonably Accommodate Religion 1

Plaintiff must establish a prima facie case: - The existence of a sincere religious belief or practice that conflicts with an employment requirement; - That the employer was informed of the conflicting belief or practice; and - That the employee suffered a loss or limitation of employment opportunity due to adhering to the religious belief or practice.

Elements of a Claim - Failure to Reasonably Accommodate Disability

Plaintiff must establish that: 1. He/she has a disability 2. He/she is qualified for the job (a. meets all the job-related requirements; and b. is able to perform the essential functions of the job with or without reasonable accommodation; and c. is not a direct threat to his/her own health or safety or the health or safety of others) 3. The employer knew or should have known of the employee's need for accommodation 4. One or more accommodations exist that are reasonable and that the employer did not provide

Elements of a Claim -USERRA, Failure to Reinstate

Plaintiff must show: 1. Employer was informed employee needed leave to perform military duties 2. Employee received an honorable discharge from active military service 3. Employee made a timely request to be reinstated (usually within 90 days) 4. Employer delayed, denied or failed to fully reinstate employee had employee not left for military duty ---------------------- See Serricchio v. Wachovia, p. 369: what must the employer provide for reemployment of a salesman who leaves for duty? -- "opportunity to re-enter the workforce with comparable earning potential and the chance for advancement" -- Not required to reinstate the exact book of business. See also Petty v. Metro, pp. 369-373: prompt reemployment requirement where there is an honorable discharge regardless of "suspicious circumstances" Escalator Principle: pp. 373-374 ... entitlement to all seniority-based benefits and pay raises as if the employee was never gone. -- Also promotions - employee should be trained up to the promoted position if possible. Termination for cause only (employer's burden of proof) in the six to 12 months following return

Elements of a Claim -Interference with FMLA Rights 1

Plaintiff must show: 1. She was eligible for FMLA benefits: - She worked for this employer for at least 12 months - She worked at least 1,250 hours during that 12 months - Has a "qualifying event," and provides timely notification of need for leave 2. Her employer was covered by the FMLA: - is a private employer with at least 50 employees on site or within a 75 mile radius, or - is a public sector employer of any size -------------------- Interference claims: employee was denied benefits.

Elements of a Claim -Reduction in Force (Age) 1

Plaintiff's prima facie case must show: 1. The downsized employee was age 40 or over; 2. He was selected for termination from a larger group of candidates; 3. He was performing at a level at least substantially equivalent to the lowest level among the group of employees retained; 4. The group of employees retained included one or more substantially younger employees who were not performing any better than the terminated employee;" OR (Don't over think this)

Elements of a Claim -Public Policy Exception

Plaintiffs must show: 1. The existence of a clear public policy relevant to their conduct (clarity element); 2. That discouraging the conduct in which they engaged would jeopardize this public policy (jeopardy element); 3. That engaging in conduct supportive of public policy resulted in termination (causation element). If Plaintiff establishes these elements, the employer must show that there was an overriding justification for the termination.

Protection under the NLRA: Concerted Activity (cont.)

Protection for such activity may be lost if it constitutes "insubordination, disobedience or disloyalty," which is "adequate cause for discharge." Consider social media cases (pp. 470-471) - Key consideration: were the comments intended to induce collective action by co-workers? - "Wuck Fal-Mart!!!" - not protected - "My boss is a scumbag" - protected, where the comment was made after the employee was denied union representation and other employees offered comments in support Social media policies should not limit all work-related discussion

Public Employees 2

Public employees are protected from wrongful termination by: - The due process rights in property and liberty afforded by the 5th and 14th Amendments to the U.S. Constitution, and - The freedoms of speech, religion and association afforded by the 1st Amendment to the U.S. Constitution.

Privacy Protections: Constitutional

Public employees enjoy privacy rights deriving from the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures. --Note that such rights have limits. Public employers need not establish probable cause or obtain warrants before conducting workplace searches. --Note that such searches and other actions impinging on privacy must be reasonable. ---------------------------------------- Reasonable at its inception (reasonable at the beginning; there was a need). And reasonable in its scope/breath (meaning don't overdo it; narrow it down to reach solution). Remember that probable cause has NOTHING to do with this. p. 581-582: Was there a reasonable expectation of privacy for the employee? Past practice? Policy statements? Any ongoing need for access by the employer? If so, was the employer's search reasonable at its inception and in its scope?

Right to Work laws RTW: Does not mean we can't have unions in Iowa.

RTW laws - allows states to outlaw union shop agreements (which require union membership of all bargaining unit employees) Closed shops - outlawed by Taft-Hartley (would allow agreements in which employers refused to hire non-members) Right to Work Laws: some states (including Iowa) have outlowed U.S. agreements. In right to work states, employees can't be required to pay dues as a condition of employment

Medical Information - HIPAA

Regulations primarily affect health care providers and self-insured companies. Any employer that receives protected health information from insurers or health care must: - Limit the uses and disclosure of that information; - Train staff on maintaining the privacy of medical information; - Designate a privacy officer with responsibility for compliance; and - Notify employees of their rights. --------------------------------------- Not all employers are subject to HIPAA - applies to employers who receive medical information in relation to group health plans

NLRA - excludes supervisors

Supervisors and managers are excluded from this protection, except when they are retaliated against for opposing an unfair labor practice. Supervisors defined: - Uses independent judgment to make personnel decisions, direct other employees, or settle grievances; or - "Formulate and effectuate management polices by expressing and making operative decisions of their employer" Many legal battles have been fought to decide which employees are supervisors ------------------------- Supes are excluded from the bargaining unit - how that unit is defined can be crucial to who wins the election (*Supervisors are excluded because they aren't protected by a union, etc.)

Actual Disability

Review: Illegal drug users are not disabled, but former/recovering users may be protected by the ADA. Not all medical conditions meet the definition of "disability" under the ADA. -> To be covered, the impairment must be severe, chronic, or expected to have long-term impact on functioning. Consider the condition in its active state. -> Active state: --Cancer may be in remission --Asthma or epilepsy largely controlled by medication --Migraines --The 2008 amendments fixed the problem faced by employees who addressed their conditions too successfully ->Without regard to assistive devices ... includes medicine Except for contacts or eyeglasses, the determination whether an impairment is "substantially limiting" is to be made without regard to assistive devices or ameliorative measures.

Selecting Employees for Downsizing: General Concerns

Rule: The means of selecting individuals for downsizing must not be discriminatory. Of particular concern is age discrimination. Age discrimination plaintiffs must show that they were treated less favorably than employees who were "substantially younger" even if not under 40. If an employer uses "reduction in force" to explain a discharge, the employer must explain why certain employees were selected. ------------------------------------- Why is age discrimination a significant risk in downsizing? A: if financial reasons are important, older workers tend to make more money

Searches 2

Searches should be conducted in a reasonable manner, - not overly broad - not resulting in destruction of employee property - not discriminatory Evidence obtained through searches, particularly if it relates to potential criminal activity (e.g., weapons, drugs), must be handled carefully and kept in a secure location.

Record of a Disability

Second prong: People with a record of a disability are protected under the ADA. -> Employees are sometimes discriminated against on the basis of a past disability, perhaps because of the stigma attached to certain conditions (mental illness) or a fear that it will reoccur (cancer). -> Sometimes people are misclassified, but the diagnosis remains on their records.

Intentional Infliction of Emotional Distress

Shocking, outrageous behavior that intends to, and in fact does, cause extreme harm Hard to prove, but everyone tries it. i.e., someone calling a person up and telling them their spouse died in a car wreck

Workers' Compensation 1

State workers' compensation laws require employers to provide medical care and replace partial lost income for injuries of employees arising out of and occuring in the course of employment. --Note that independent contractors performing the work of employees can be deemed "statutory employees," requiring workers' comp coverage. Employers must arrange workers' compensation coverage for their employees, and ensure that contractors provide similar coverage. --------------------------------------- Consider Wait v. Travelers Indemnity, pp. 528-531 Working from home, assaults as WC injuries, and the "street risk doctrine"

Strikes and Other Economic Weapons (cont.)

Strikes, picketing, and related activities constitute "concerted activity". Most public sector employees do not have the right to strike. Secondary boycotts Lockouts

ERISA: Advise Employees re Benefits Offered

Summary Plan Description (SPD) - Must be given to employees with 90 days of eligibility for benefits - Must describe premiums, deductibles, copays, coverage limits, limits on choice of providers, special provisions for emergency care, etc. Summary of Material Modifications - Outlining changes to benefit plans Summary Annual Report - Financial data on benefit plans Individual Benefit Statement - Regarding employee's individual pension plan Disclosure Notice - Notifying employees of certain funding problems with pension plans

A concluding thought...

Terminated employees will begin the search for new work and their former employers will seek to fill at least some of the vacated positions. This discussion brings us full circle in our tour of legal issues in employment. You should now have a better idea of how to meet both the spirit and the letter of the law—and to keep your employer's name out of any future editions of this book.

Early Retirement Offers

The Age Discrimination in Employment Act (ADEA) prohibits mandatory retirement except for certain persons in bona fide executive and high policy-making positions. Rule: Employers must not force employees to retire when they reach a certain age. Under the Older Workers Benefit Protection Act (OWBPA), it is legal for employers to offer incentives to retire early, even though the minimum age or service requirements might exclude younger employees. However, early retirement offers cannot be extended to one age group (employees between 52 and 56), but denied to older employees.

Age Discrimination in Employment Act 1

The Age Discrimination in Employment Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA), requires very specific provisions, if waivers of ADEA claims are to be held valid: 1) Waivers must be plainly worded, written agreements that specifically reference the ADEA and suggest consultation with a lawyer prior to acceptance; 2) Legal consideration must be provided for acceptance.

ERISA: Health Insurance 1

The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers to provide beneficiaries the option of continuation of health insurance for when qualifying events occur. COBRA qualifying events: p. 450 - Termination of employment (18 months) - Divorce from the covered spouse (36 months) - Death of the covered spouse (36 months) Beneficiary must pay their portion of the premium --------------------- COBRA: continuation of employer group coverage for 18 months following: - Voluntary or involuntary termination (for other than "gross misconduct") - Reduced hours of employment Continued coverage for 36 months: - Divorce or separation - Death of employee - Loss of dependent child status - Covered employee becoming entitled to Medicare Employee and other family members remain covered, but must pay the employee portion of the group health premium

Reasonable Accomodation

The EEOC provides guidance for employers as to "reasonableness." - Need not be the employee's first choice; there may be adequate alternatives - No "personal use" items like glasses or a smartphone - Does not require displacing another employee, creating a new job, or promotion into a new job - Need not eliminate essential functions or productions standards - Does not excuse misconduct - Does not trump established seniority rules - Consider the impact on co-workers Is it effective in removing barriers? See pp. 321-322 Consider leaves of absence, p. 328: EEOC frowns on rigid leave and attendance policies - Indefinite leaves need not be accommodated beyond FMLA or employer policy. - Additional, incremental leave may be reasonable, depending on the circumstances.

Religion Defined

The EEOC treats as religious: - "...moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views". Belief in a particular God or deity is not required. - Atheism and agnosticism are forms of religious belief. The espoused religion does not have to be popular, well known, or even organized. A religious belief must be "sincerely held". ------------- See p. 330, discussion of veganism under California law - Addresses fundamental questions about human existence. - Comprehensive beliefs rather than "isolated precepts." - Often displays formal and external signs such as leaders, ceremonies, holidays.

Family and Medical Leave Act

The FMLA is the principal federal law governing the provision of family and medical leave. It applies to ---all governmental agencies ---private employers of 50 or more Many states have their own leave laws. The FMLA sets minimum standards for the provision of leave. Leave policies should be consistent with the FMLA. -------------- Employers are free to maintain more generous leave policies.

National Labor Relations Act

The National Labor Relations Act (NLRA) is administered by the National Labor Relations Board (NLRB). Its duty is to protect the right of many (not all) private sector employees to engage in "concerted activities" and to decide whether or not to form a labor union for the purposes of negotiating with their employer. The NLRA attempts to balance the competing concerns of labor and management. ------------------------------- NLRA has no public sector application, although many state level public employee bargaining laws (Ch. 20 in Iowa) are very similar. Railway Labor Act - railroad and airline workers Civil Service Reform Act - federal employees State laws for state employees (Ch. 20 in Iowa)

Occupational Safety & Health Act

The OSH Act is the principal federal governing the safety of private sector workplaces. The Act created 3 new agencies: --OSHA, the Occupational Safety & Health Administration (administers the OSH Act) --OSHRC, the Occupational Safety & Health Review Commission (independent from OSHA; hears appeals from OSHA rulings) --NIOSH, the National Institute of Occupational Safety & Health (provides scientific & technical support to OSHA, does research) --------------------------------- States can adopt their own standards, but must be approved by OSHA.

The WARN Act 2

The WARN Act applies to employers with 100 or more full-time employees or 100 or more full- and part-time employees working at least 4,000 hours per week. "Plant closing" is defined by the Act as a permanent or temporary shutdown of a single employment site when that shutdown results in employment loss during any 30-day period for at least 50 full-time employees. A "mass layoff" is a reduction in force not caused by a plant closing, but that results in employment loss at a single work site during any 30-day period for at least 500 full-time employees. - (or at least 50 full-time employees when these comprise at least 33 percent of total employment at the work site)

"Serious" Health Conditions

The definition is complex - pp. 354-356 Involve inpatient care in a hospital, or continuing care by a health care provider, including: - Conditions resulting in 3 days or more of incapacity and treatment - Incapacity related to pregnancy or pre-natal care - Long term periods of incapacity - Absences to receive multiple treatments which would result in incapacity if not treated May require intermittent leave for episodic conditions in increments as small as one hour --------------- What is incapacity? Can't go to work/school or other regular daily activities. Does it require treatment? - Yes, usually two or more treatments or ongoing treatment, but also conditions that are so serious that treatment is ineffective/pointless. - Includes pregnancy-related conditions/complications. Typically does not include (absent complications)- common cold and flu, non-migraine headaches, routine dental, minor ulcers. - p. 355 Intermittent leave: difficult to manage because of its unpredictable nature. - Can't require someone to take off more time than they need.

Elements of a Claim -Violation of the General Duty Clause

The elements necessary to prove a violation of the general duty clause are: 1. A workplace hazard was allowed to exist. 2. The hazard was or should have been recognized by the employer. 3. The hazard caused or was likely to cause death or serious physical injury. 4. Feasible means exist to abate (avoid) the hazard and were not used.

Unionized Employees

The legal status of unionized employees derives from language in labor agreements that limits discipline and discharge to situations in which there is "just cause." Almost all labor agreements include grievance and arbitration procedures to challenge discipline and discharge decisions. Determinations as to whether unionized employees have been terminated for just cause are made by arbitrators rather than courts. --Arbitrators are typically given broad authority. --If an arbitrator decides that a discharge was not for just cause, he/she can overturn the decision or modify it.

How safe is "safe enough?" 1

The minimum level of safety that employers are required to provide is defined in two ways: --OSHA standards to address specific hazards --The "general duty" clause Separate safety standards are issued for general industry, maritime, construction and agriculture. General industry standards apply to all industries, unless more specific standards deal with the same issue.

Union Organizing - Representation Election Procedures (cont.)

The petition must define the "bargaining unit," the group of employees who would be represented by the union Bargaining unit members must share a "community of interest" --similarity of skills --interrelationship of tasks --common pay systems, supervision, personnel policies, and/or work location Supervisors are excluded (because they are defined as the employer, not the employee) Employer may dispute the bargaining unit definition; ultimately settled by the NLRB ------------------------- p. 483 - Why does the BU definition matter? Because they want to avoid putting together a bargaining unit that is more favorable. Consider multi-facility employers - one plant or multiple plants in the unit? ... Yes that's okay and sometimes common, but the employer can say that there is insufficient community interest.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Think of it like this: 'FMLA' for service members. Provides: Nondiscrimination: Employers may not discriminate against members of military. Leave Rights: Service members are entitled to leave (unpaid) to serve without penalty and must be treated as not absent. Reemployment: Returning veterans must be re-employed and reasonable efforts used to place them in the position they would have attained if not for military service. "Escalator clause": if you're gone on deployment and your job would have entailed a pay raise while you were away, you're entitled to that pay raise when you come back to work. Likewise, if you would have been promoted.

Perceived Disability/Regarded As

Third prong: Those who are mistakenly perceived as disabled are also protected under the ADA. Under the ADA amendments, this prong is satisfied by showing that the plaintiff was subjected to discrimination "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Transitory impairments (lasting less than 6 months) would not meet the definition. - Treating someone as if they are disabled even though they are not - Recall our fitness for duty discussion - does requiring a medical exam constitute a risk of a "regarded as" claim? - P. 315: "It is important for managers to have a clear understanding of any medical restrictions placed on their employees before making decisions about their suitability for employment opportunities."

Defined benefit plan

This plan guarantees a certain benefit each month, calculated according to a formula. - The employer must assure that enough funds are available to make these payments. - The employer assumes the risk.

The Employee Retirement Income Security Act (ERISA) 3 *First four bullets are most important*

Title I requires that employers: - Advise employees regarding the benefits they offer - Deliver promised benefits - Provide claims and appeal procedures - Manage benefits wisely and for the benefit of its employees, a fiduciary duty - Not interfere with or retaliate against beneficiaries for exercising their rights under the plan ------------------------------ Beneficiaries: not just employees, but frequently their family members. Includes anyone who's covered by the plan.

Religion Defined

Title VII defines religion to encompass: - "[A]ll aspects of religious observance and practice, as well as belief..." Religion is not only something that a person is, but also something that is expressed through words and deeds. - It is the behavioral aspect of religion that sometimes requires accommodation. Religious practices are entitled to accommodation, not mere beliefs. The duty to accommodate is not triggered until there is some conflict between the employee's religious practices and one or more job requirements.

Discrimination Based on Sexual Orientation

Title VII does not prohibit discrimination on the basis of sexual orientation. State and local laws may prohibit discrimination on the basis of sexual orientation and/or gender identity. Public employees who are victims of such discrimination may have a cause of action for a denial of equal protection under the U.S. Constitution. ---------------- Currently: 19 states cover GI (gender identity) and SO (sexual orientation) 3 states cover only SO EP Clause: recall that it applies when the government makes distinctions among groups of people based on some characteristic -- Sexual orientation or gender identity - rational basis test -- Varnum v. Brien - Iowa same-sex marriage case; applied intermediate scrutiny under Iowa law

"Qualified" Individual

To be protected by the ADA, a person must be not only disabled, but also qualified, having the necessary skills, education and experience. -> Exception: One who is disabled and qualified, but who poses a "direct threat" to the health and safety of herself of others (which cannot be eliminated by reasonable accommodation) is not qualified. ---The direct threat must be based on medical evidence showing that the employee currently poses a specific risk of significant harm to herself or others. ---Direct threat: a low likelihood of occurrence may be offset by potentially severe consequences (and vice versa) Example of direct threats: blind machine operator, quadriplegic truck driver, depressed (and untreated) suicide hotline worker -> In most workplaces, people who are HIV positive do not pose a direct threat to themselves or others.

Constructive Discharge 2

To determine whether an employee who resigned was constructively discharged, a court considers: - demotions - cuts in salary - reductions in job responsibilities - reassignment to menial or degrading work - reassignment to work under a younger supervisor - badgering, harassment, and humiliation calculated to encourage resignation - offers of early retirement on terms less favorable than the employee's former status

Duties Test

To determine whether employee's duties are genuinely executive, administrative, or professional Not controlled by job title Must be paid a salary ----------- Job functions, not job titles

Elements of a Claim -Violation of an OSHA Safety Standard

To establish violation of a safety standard, OSHA must show all the following: 1. An applicable standard exists. 2. The standard was not complied with. 3. One or more employees were exposed or had access to the hazard. 4. The employer knew or should have known of the hazard.

Union Organizing - Representation Election Procedures

To initiate a union election, union needs support (authorization cards) from 30% of the proposed bargaining unit members. "Authorization cards" - expressing support for union representation, not just an election.

Elements of a Claim -Discrimination Under the NLRA

To make a prima facie case, the NLRB must show: 1. The employee engaged in protected activity, 2. The employer was aware of the protected activity, 3. The employer demonstrated hostility toward the protected activity (typically, adverse action- fired, demoted, etc.), and 4. There was a causal connection between this hostility & the decision to deny an employment opportunity If a prima facie case is established, the NLRA is violated unless the employer can show that the same decision would have been made regardless of the protected activity ---------------------------- 8(a)(3) - disparate treatment cases - substitute CA for race/sex/disability/religion, and apply the same discrimination frameworks - direct evidence, burden-shifting, etc.

Reasonable Accommodation of Religion

Under Title VII, employers are required to reasonably accommodate religion, unless doing so would impose undue hardship on the business. This burden of undue hardship is not the same as the burden required to show undue hardship in a case of disability. Employers need incur no more than minimal expense or operational problems in accommodating religion. 3.8% of EEOC complaints in 2010, but appears to be growing. (Mostly Muslims... probably due to terrorism)

Reasonable Accommodation (Undue Hardship)

Under the ADA, employers are required to make reasonable accommodation unless doing so would impose an undue hardship on the business. - Undue hardship is established if the action would involve significant difficulty or expense, in relation to the size of the firm and its resources. Again, very difficult for large employers (like the University of Iowa) to prevail on undue hardship.

Public Policy Exception to Employment at Will 1

Under this exception, employers are liable in tort (tort: a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability) for wrongful discharge when they terminate employees for taking actions that public policy requires or commends. Allowing the terminations to stand would offend and undermine public policy. This type of wrongful discharge claim is recognized in about 43 states.

Secondary boycotts

Urging a boycott of a neutral third party to persuade that third party to put pressure on the primary employer --Generally considered a ULP

Workers' Compensation 2

Usually, worker's compensation is provided on a no-fault basis, as the employee gives up his right to sue In exchange, employer gives up its right to defend based on contributory negligence, the Fellow Servant Rule and assumption of the risk Generally, it is an employee's exclusive remedy against his employer --A rare exception holds the employer liable when the injury was "intentional," in that the employer removed safety guards or modified equipment making it more productive but less safe, knowing that injury was likely to result ----------------------------------------- OSHA violations do not override the WC exclusive remedy rule unless the violations equate to intent to injury on the part of the employer.

Mandatory subjects of bargaining

Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management -------------------------------- Mandatory subjects -- Some of the more common mandatory subjects of bargaining include: pay scales, breaks, health insurance, layoffs, no-strike clauses, pensions, seniority, sick leave, vacations, and work schedules, management rights clause. Mandatory subjects - Can't ignore these subjects

Calculation of Overtime Pay

When calculating the regular rate of pay on which overtime is based, the following may not be included: - Most paid absences (e.g., vacation, holiday, illness) - Discretionary bonuses and prizes - Reimbursements for expenses (e.g., travel, materials) - Employer payments for pensions & other employee benefits - Profit-sharing plans - Many forms of premium pay (e.g., extra pay for holidays ) - Daily or other non-FLSA required overtime pay

Privacy Protections: Common Law

Whether there is a reasonable expectation of privacy is a case-by-case determination based on policies, practices, and other circumstances. Most states recognize the following privacy torts: - Intrusion upon seclusion - Public disclosure of private facts - Placement in a false light - Appropriation of a name or likeness --------------------------------------------- Maintaining a privacy policy (or lack of privacy policy that provides for searches, etc.) Are there other circumstances (locker rooms, restrooms, break rooms)?

Employee Records

While a few states have laws governing an employer's handling of personnel records, the employer's policy generally controls. The Federal Privacy Act governs the handling of personnel records of federal employees. (*provides for employee access to personnel files plus a right to correct inaccurate informations and limits disclosure outside of the organization w/o ee consent) Some states grant employees the right to review and copy their personnel files, and restrict access by others (Iowa Code 91B). Employers generally must allow union representatives to see the personnel files of their members. Recommended: Even though few private-sector employers are legally required to do so, it is sensible to obtain the consent of employees prior to divulging information from their personnel records to third parties. ---------------------------------- Iowa law - only provides access; does not limit disclosure

"White collar exemptions"

exec, admin or professional (including teachers and academic administrative personnel in elementary and secondary schools), - Execs must manage 2 or more, hire/fire, advanced degrees or specialized fields or operations/finance/auditing - job functions, not job titles - $100K or more with some admin/professional/exec functions - At least $23,60 or $455/week and on a salary basis (excluding teachers, lawyers, docs, outside sales; computer types can be paid $27.63/hr) - Salary basis - regular, equal payment independent of output or hours worked --- Limits the ability to suspend w/o pay - only in egregious policy violations like safety rules or sex harassment - Outside sales employees, and - Certain skilled computer professionals (as defined in the Department of Labor's regulations) Other exemptions for farm work, sailors, fishermen, amusement park workers, babysitters

Union Security provisions

pp. 486-489 Union Security agreements: employer agrees to terminate employees who don't pay dues Also known as: union shops and agency shops