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LABOR AND EMPLOYMENT LAW IN THE UNITED STATES AN OVERVIEW PROFESSOR MEREDITH S. JEFFRIES THE CHARLOTTE SCHOOL OF LAW.

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Presentation on theme: "LABOR AND EMPLOYMENT LAW IN THE UNITED STATES AN OVERVIEW PROFESSOR MEREDITH S. JEFFRIES THE CHARLOTTE SCHOOL OF LAW."— Presentation transcript:

1 LABOR AND EMPLOYMENT LAW IN THE UNITED STATES AN OVERVIEW PROFESSOR MEREDITH S. JEFFRIES THE CHARLOTTE SCHOOL OF LAW

2 F EDERAL P OWER V. S TATE P OWER : L AWS AND C OURT S YSTEMS IN THE U NITED S TATES

3 STRUCTURE OF AMERICAN GOVERNMENT Article IV, section four of the Constitution specifically declared that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government....”

4 The residual authority of state governments is reflected in the Tenth Amendment to the United States Constitution “Powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states.” STRUCTURE OF AMERICAN GOVERNMENT

5 FEDERALISM AND EMPLOYMENT LAW EXAMPLES OF FEDERAL LAWS: Federal Anti-Discrimination Laws: Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), USERRA (Uniformed Services Employment and Reemployment Rights Act), GINA (Genetic Information Nondiscrimination Act) Federal laws governing wages, hours, employee benefits, and medical leave: The Fair Labor Standards Act (F:LSA), The Family Medical Leave Act (FMLA), the Employee Retirement Income Security Act (ERISA) Federal Labor Law: The National Labor Relations Act (NLRA)

6 FEDERALISM AND EMPLOYMENT LAW EXAMPLES OF STATE LAWS: Laws governing employment security, unemployment benefits, contractual rights in the employment relationship, and wrongful discharge Workers’ compensation laws governing compensation for injuries incurred on the job Except for minimal rights to unpaid leave under FMLA, all vacation, maternity leave, sick leave, etc. governed by state laws. Most employee privacy laws Laws on employer information, the restriction of competition, the restriction of solicitation of customers by former employees, trade secret protection

7 THE AT-WILL EMPLOYMENT DOCTRINE

8 WORLEY V. BAYER (N.C.APP. 2002) In North Carolina, "the relationship between employer and employee is presumed to be terminable at will" by either party and without cause absent an agreement to the contrary. At Will Termination: No Notice No Cause No Severance Pay

9 EXAMPLES Justin is a manager at McDonald’s. He wants to terminate the employment of several of his employees. Which of the following would be permissible terminations, without notice? Justin does not like Sally. He finds her to be loud, obnoxious, and unattractive. Sally hasn’t broken any work rules and generally performs her job as a cashier satisfactorily. Paul has used all of his allowed vacation days for his wedding and honeymoon. When his mother dies, he misses two days of work to attend her funeral. Justin wants to fire him for “job abandonment”.

10 EXAMPLES Justin is a manager at McDonald’s. He wants to terminate the employment of several of his employees. Which of the following would be permissible terminations, without notice? Justin has a Facebook account. One day on Facebook, he sees a picture of Mary taken during Mary’s vacation. In the picture, Mary is wearing a bikini and drinking a beer. Justin does not approve of Mary’s lifestyle outside of work and wants to fire Mary. Justin’s friend Kurt needs a job, but the McDonalds Justin manages is full-staffed. Justin wants to fire Thomas so that he can hire his friend Kurt. Sarah is the assistant manager at McDonald’s and has an employment contract that states that she is employed for one year unless terminated for “illegal or egregious misconduct”. Justin wants to fire Sarah and hire his friend Kurt to be the assistant manager.

11 EXAMPLES Justin is a manager at McDonald’s. He wants to terminate the employment of several of his employees. Which of the following would be permissible terminations, without notice? Bariah works at McDonald’s and wants to wear a Hijab on her head at work in adherence to her Muslim faith. Justin tells her she cannot because the McDonald’s dress code requires her to wear a McDonald’s hat. When she insists on wearing her Hijab. Justin wants to fire her. Frank is a cook at McDonald’s and knows that the restaurant is serving hamburger meat that expired a month ago. Frank reports this to the Food and Drug Administration, which sets standards for the food served in restaurants. Justin wants to fire Frank for “blowing the whistle”.

12 WORLEY V. BAYER (N.C.APP. 2002) In North Carolina, "the relationship between employer and employee is presumed to be terminable at will" by either party and without cause absent an agreement to the contrary. Our Supreme Court has recognized three exceptions to the at-will employment doctrine: (1) a contract providing for a definite term of employment (2) a discharge occurring for "impermissible considerations such as the employee's age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer;" and (3) a termination contravening public policy.

13 PREVALANCE OF EMPLOYMENT AT WILL IN UNITED STATES Total Civilians Employed145 million Employees employed at-will100 million Employees not employed at-willapprox. 30% 7% unionized private sector workers 12% private sector workers with express contracts 11% public sector employees with civil service protections or union protections

14 WORLEY V. BAYER (N.C.APP. 2002) In North Carolina, "the relationship between employer and employee is presumed to be terminable at will" by either party and without cause absent an agreement to the contrary. Our Supreme Court has recognized three exceptions to the at-will employment doctrine: (1) a contract providing for a definite term of employment (2) a discharge occurring for "impermissible considerations such as the employee's age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer;" and (3) a termination contravening public policy.

15 THE GLOBAL PERSPECTIVE

16 EMPLOYMENT CONTRACTS IN THE EUROPEAN UNION AND UNDER LITHUANIAN LABOUR CODE Requirement for employers to provide employees with written details of essential terms and conditions: Commencement date Description of work Place of work Daily or weekly working time Terms of compensation (in detail) Vacation Notice periods and/or terms (if limited)

17 WORLEY V. BAYER (N.C.APP. 2002) In North Carolina, "the relationship between employer and employee is presumed to be terminable at will" by either party and without cause absent an agreement to the contrary. Our Supreme Court has recognized three exceptions to the at-will employment doctrine: (1) a contract providing for a definite term of employment [Professor’s note – I would include in this category a contract providing that termination, even for an indefinite term, will be for just cause] (2) a discharge occurring for "impermissible considerations such as the employee's age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer;" and (3) a termination contravening public policy.

18 FEDERALLY RECOGNIZED PROTECTED CLASSES Age Race Gender National Origin Color Pregnancy Religion Disability Genetic Indicators Military Status

19 MODELS OF EMPLOYMENT DISCRIMINATION Disparate Treatment  Individual  Systemic (Pattern and Practice) Harassment/Hostile Workplace Disparate Impact Failure to Reasonably Accommodate

20 MODELS OF EMPLOYMENT DISCRIMINATION Disparate Treatment  Individual  Systemic (Pattern and Practice) Harassment/Hostile Workplace Disparate Impact Failure to Reasonably Accommodate

21 MODELS OF EMPLOYMENT DISCRIMINATION Disparate Treatment  Individual  Systemic (Pattern and Practice) Harassment/Hostile Workplace Disparate Impact Failure to Reasonably Accommodate

22 POST-9/11 WORKPLACE DISCRIMINATION CONTINUES A lawsuit alleging the New York Plaza hotel and Fairmont Hotel Management discriminated against Muslim, Arab and South Asian employees settled for $525,000. The lawsuit claimed that Plaza employees were called "terrorist," "Taliban" and "dumb Muslim." It also alleges that managers wrote "Osama" and "Taliban" instead of employees' names on key holders.

23 MODELS OF EMPLOYMENT DISCRIMINATION Disparate Treatment  Individual  Systemic (Pattern and Practice) Harassment/Hostile Workplace Disparate Impact Failure to Reasonably Accommodate

24 MODELS OF EMPLOYMENT DISCRIMINATION Disparate Treatment  Individual  Systemic (Pattern and Practice) Harassment/Hostile Workplace Disparate Impact Failure to Reasonably Accommodate

25 WORLEY V. BAYER (N.C.APP. 2002) In North Carolina, "the relationship between employer and employee is presumed to be terminable at will" by either party and without cause absent an agreement to the contrary. Our Supreme Court has recognized three exceptions to the at-will employment doctrine: (1) a contract providing for a definite term of employment (2) a discharge occurring for "impermissible considerations such as the employee's age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer;" and (3) a termination contravening public policy.

26 BASIC TYPES OF WRONGFUL DISCHARGE CLAIMS EMPLOYEE’S REFUSAL TO COMMIT UNLAWFUL ACT EMPLOYEE’S EXERCISE OF STATUTORY RIGHT EMPLOYEE FULFILLING PUBLIC OBLIGATION EMPLOYEE WHISTLE- BLOWING

27 EXAMPLES OF PUBLIC POLICY EXCEPTIONS TO THE AT-WILL DOCTRINE RECOGNIZED IN NC: Employee terminated for refusing to violate DOT safety regulations applicable to truck drivers. Employee terminated for refusing to work for less than the minimum wage. Employee terminated for testifying truthfully against the employer in another employee’s lawsuit. Employee terminated for reporting allegations of patient abuse in an alcoholic rehabilitation center.

28 EXAMPLES OF CASES WHERE PUBLIC POLICY EXCEPTIONS TO THE AT-WILL DOCTRINE NOT RECOGNIZED IN NC: Employee terminated for defending himself in a fight started by a co-worker with no provocation. Employee terminated for associating with out-of-favor member of the University faculty. Employee terminated for giving an unfavorable interview about the company to the media

29

30 THE GLOBAL PERSPECTIVE

31 EMPLOYMENT TERMINATIONS IN THE EUROPEAN UNION AND UNDER LITHUANIAN LABOUR CODE Terminations subject to strict rules Employee must be notified and given reasons for termination in writing Statutory minimum notice periods for justified terminations Strict requirements for reductions in force Progressive Discipline Requirements

32 Wage and Hour Regulation

33 THE FAIR LABOR STANDARDS ACT Minimum Wage $7.25/Hour (19 Litas per hour) Overtime at 1.5 x pay for hours worked over 40 Exemptions for certain classes of employees

34 WAL-MART AGREES TO $33 MILLION SETTLEMENT IN FLSA CLASS ACTION January Wal-Mart has agreed to pay $33 million to resolve alleged FLSA violations involving 86,680 employees nationwide. According to the Department of Labor, the alleged violations involved how Wal-Mart treated incentives and other premium payments in the calculation of overtime pay.

35 MORGAN STANLEY AGREES TO $50 MILLON SETTLEMENT IN FLSA CLASS ACTION July Morgan Stanley agreed to pay financial advisors who claimed they had been misclassified as exempt employees and thus owed significant overtime wages they had been denied as “salaried” employees.

36 THE GLOBAL PERSPECTIVE

37 BENEFITUNITED STATESLITHUANIA Vacation (annual holiday leave) None Required28-35 days paid Public HolidaysNone Required13 calendar days Pregnancy LeaveNo leave before childbirth (unless pregnancy creates a serious health condition – then up to 12 weeks unpaid under FMLA if >50 employees) 70 days before childbirth, protections on termination

38 BENEFITUNITED STATESLITHUANIA Parental LeaveFMLA – If > 50 EE 12 weeks unpaid – men or women Paid leave up to 56 days on birth (women) Paid parental leave until child has reached 3 to parents, adoptive parents, other caregivers Sick LeaveFMLA – If >50 EE 12 weeks unpaid for SHC; possible benefits through a disability insurance contract 120 days for temporary incapacity. Leave for On-The-Job Injury or Disease Workers’ Compensation coverage – varies by state Paid leave until able to return to work

39

40 UNEMPLOYMENT RATES U.S. Unemployment Rate: 6.3% in April 2014 Under 25 Unemployment Rate: 12.5% in March – 10.6% (Highest since 1980s) Lithuanian Unemployment Rate: 10.8% in March 2014 Under 25 Unemployment Rate: 20.4% in March 2014

41 State: North Carolina (NC) Maximum Weekly Benefit Amount: $350 Maximum Weeks of benefits: 19

42 Labor Law: A Brief Overview

43 The National Labor Relations Act – Section 7 Protects the right of employees to self-organize, to join, form or assist labor organizations, to collectively bargain through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other protective purposes.

44 The National Labor Relations Act - Section 8 Prohibits employers from engaging in “unfair labor practices”:  Prohibition of interference with rights guaranteed by Section 7  Prohibition of employer-sponsored unions, or support or assistance of any kind to unions.  Prohibition of discrimination in hiring or firing or terms of employment of union members.  Anti-Retaliation provision for employees who engage in protected activity to assert rights under the Act.  Requirement that employers bargain with the union selected by a majority of the employees.  Regulates picketing and certain other concerted activities.

45 Section 8: (1947 Amendments ) Prohibits UNIONS from engaging in “unfair labor practices”, including:  Interfering with an employee’s Section 7 rights,  pressuring an employer to discriminate against employee for membership or non-membership  Failing to bargain with employer on behalf of represented employees  Jurisdictional Strikes  Secondary boycotts or strikes  Secondary and mass picketing  Monetary donations by unions to federal political campaigns.

46 SECTION 301 CLAIMS LMRA Section 301 provides a cause of action for breach of a CBA. Typically arbitrated.  Federal courts have jurisdiction to determine whether parties have effectively agreed to arbitrate the dispute.  If so, arbitrators have jurisdiction over the dispute itself.

47 QUESTIONS?


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