What is the employment-at-will doctrine? When and why are exceptions to this doctrine made? What is the employment-at-will doctrine? When and why are exceptions to this doctrine made? What federal statute governs working hours and wages? What federal statute governs working hours and wages? Under the Family and Medical Leave Act of 1993, in what circumstances may an employee take family or medical leave? Under the Family and Medical Leave Act of 1993, in what circumstances may an employee take family or medical leave? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

What are the two most important federal statutes governing immigration and employment today? What are the two most important federal statutes governing immigration and employment today? What federal statute gave employees the right to organize unions and engage in collective bargaining? What federal statute gave employees the right to organize unions and engage in collective bargaining? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

Historically, employment law was governed by the common law doctrine of “employment at will” where either employer or employee could terminate the relationship at any time, for any reason. Historically, employment law was governed by the common law doctrine of “employment at will” where either employer or employee could terminate the relationship at any time, for any reason. Today employment law is heavily regulated by state and federal statutes. Today employment law is heavily regulated by state and federal statutes. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

Employment relationships have been by common law doctrine of “employment at will.” Employment relationships have been by common law doctrine of “employment at will.” – Either party may terminate at any time for any reason, unless contract provides to the contrary.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

Exceptions to the Employment At Will Doctrine: Exceptions to the Employment At Will Doctrine: – Contract Theory: is there an implied employment agreement? What about oral promises from employer? Ellis v. BlueSky Charter School CASE 29.1 Ellis v. BlueSky Charter School (2010). Why did Ellis believe his employment was based on an employment contract, and not at-will?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

Exceptions to the Employment At Will Doctrine (cont’d): Exceptions to the Employment At Will Doctrine (cont’d): – Tort Theory: termination may give rise to wrongful discharge claims. – Public Policy: Requirements: Must be clearly stated in statutes governing that jurisdiction. Whistleblowing and Public Policy. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

Wrongful Discharge. Wrongful Discharge. – Even if employer’s actions do not violate any express employment contract or statute, liability may still attach based on tort theory or agency. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

Introduction. Introduction. – Davis-Bacon Act -- the prevailing wage act. – Walsh-Healey Act -- the beginning of minimum wages. – Fair Labor Standards Act (FLSA) -- an extension of wage and hour regulation to workers in interstate commerce.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

Child Labor. Child Labor. – FLSA prohibits oppressive child labor practices. Minimum Wages. Minimum Wages. – In 2010, FLSA minimum wage is $7.25/hour in covered industries. Employers in food or lodging industries can deduct reasonable cost of those services from wages. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

Overtime Provisions and Exemptions. Overtime Provisions and Exemptions. – Rule: Under FLSA, employees who work over 40 hours/week are entitled to 1.5 times her hourly wage for those hours worked. – Exemptions: certain employees, e.g., executive or professional, are exempt from FLSA overtime requirements.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

Overtime Provisions and Exemptions. Overtime Provisions and Exemptions. – Exemptions (cont’d). Exemptions from FLSA overtime do not apply to manual laborers, nurses, police, firefighters, and other public safety workers. ‘blue collar’ workers. Smith v. Johnson and Johnson CASE 29.2 Smith v. Johnson and Johnson (2010). Is it unfair to exempt some employees from overtime, regardless of what the parties negotiate? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

Worker Adjustment and Retraining Notification Act (WARN): requires 60 days notice before a ‘mass layoff’ which means during a 30 day period, a reduction in force that results in loss of: Worker Adjustment and Retraining Notification Act (WARN): requires 60 days notice before a ‘mass layoff’ which means during a 30 day period, a reduction in force that results in loss of: – At least 33% of fifty (50) full-time employees at a single job site, or – At least 500 full-time employees. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

Worker Adjustment and Retraining Notification Act (WARN) (cont’d). Worker Adjustment and Retraining Notification Act (WARN) (cont’d). – Notification Requirements. – Remedies for Violations. State Laws May Also Require Layoff Notices. State Laws May Also Require Layoff Notices. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

Coverage and Application: FMLA requires employers with over 50 employees to provide up to twelve (12) weeks unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. Coverage and Application: FMLA requires employers with over 50 employees to provide up to twelve (12) weeks unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. – Serious injuries or military duty can take up to 26 weeks.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

Benefits and Protections: Benefits and Protections: – Employer must continue worker’s health care on same terms. Employee must be restored to position upon return to work (unless it’s a “key” employee). Violations of the FMLA. Violations of the FMLA. – Damages, lost benefits & compensation, and actual losses up to the equivalent of 12 weeks (26 weeks military), job reinstatement, and promotion, if denied. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

The Occupational Safety and Health Act. (OSHA). The Occupational Safety and Health Act. (OSHA). – The fundamental federal law aimed toward safety in the workplace. – Enforcement is by OSHA, NIOSH, and the OSHRC. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

State Workers’ Compensation Laws. Establish an administrative procedure for compensating workers injured on the job. Instead of suing for injuries, a worker is compensated. State Workers’ Compensation Laws. Establish an administrative procedure for compensating workers injured on the job. Instead of suing for injuries, a worker is compensated. – Requirements. – Workers’ Compensation Versus Litigation. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

Social Security: portion of income (whether paycheck or self-employed) goes to FICA (Federal Insurance Contributions Act). Social Security: portion of income (whether paycheck or self-employed) goes to FICA (Federal Insurance Contributions Act). Medicare: federal government health- insurance program for people 65 years of age, and for those under 65 who are disabled. Medicare: federal government health- insurance program for people 65 years of age, and for those under 65 who are disabled. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

Private Pension Plans. Private Pension Plans. – ERISA does not require employers to setup pension plans, but provides rules on management and investment. – Vesting. Unemployment Insurance. Unemployment Insurance. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

COBRA provides a federal right to continued health insurance. COBRA provides a federal right to continued health insurance. – Procedures: worker has 60 days to decide. – Payment: COBRA is not free, payments depending on conditions and worker status. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

Employer-Sponsored Group Health Plans. Employer-Sponsored Group Health Plans. – HIPAA: does not require health insurance but it does establish requirements for health plans. Strictly limits employer’s ability to exclude pre- existing conditions. Plus, restricts manner of disseminating patient information. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

Electronic Monitoring In the Workplace: more than 2/3 employers use some sort of electronic monitoring of employees. Electronic Monitoring In the Workplace: more than 2/3 employers use some sort of electronic monitoring of employees. – Employee Privacy Rights Under Constitutional and Tort Law: is there an employee expectation of privacy?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

Electronic Monitoring (cont’d). Electronic Monitoring (cont’d). – ECPA: “business-extension exception” allows employer to monitor. – Stored Communications. Other Types of Monitoring. Other Types of Monitoring. – Lie-Detector Tests. – Drug Testing. – Genetic Testing. – Screening Procedures. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

Immigration Reform and Control Act: makes illegal to hire, recruit, or refer for a fee someone not authorized to work in the U.S. Immigration Reform and Control Act: makes illegal to hire, recruit, or refer for a fee someone not authorized to work in the U.S. – I-9 Employment Verification: for new hires. – Enforcement: by I.C.E. – Penalties. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

The Immigration Act: places caps on the number of visas that can be issued to immigrants every year. The Immigration Act: places caps on the number of visas that can be issued to immigrants every year. – I-551 Alien Registration Receipts. – The H-1B Visa Program. – Labor Certification. – H-2, O, L, and E Visas. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

Federal Labor Laws. Federal Labor Laws. – Norris-LaGuardia Act: p rotects peaceful strikes by limiting the injunction powers of federal courts. – National Labor Relations Act: e stablishes the right of workers to strike and engage in collective bargaining. Establishing NLRB. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

Federal Labor Laws (cont’d). Federal Labor Laws (cont’d). – Labor Management Relations Act: p rohibits certain unfair union practices such as closed shops. Allowed individual states to pass right-to-work laws. – Labor-Management Reporting and Disclosure Act: hot cargo-agreements, and secondary boycotts. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

Union Organization: first step, majority of workers sign authorization cards. Union Organization: first step, majority of workers sign authorization cards. – Union Elections: can be held only if it can be shown that at least 30% of the workers support the union and will be represented.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

Union Organization (cont’d). Union Organization (cont’d). – Union Election Campaigns: NLRB regulates the rights and obligations of employers and workers in the election process. Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities. Local Joint Executive Board of Las Vegas v. NLRB – CASE 29.3 Local Joint Executive Board of Las Vegas v. NLRB (2008). What if the managers had videotaped the meetings? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

Collective Bargaining: process by which management and labor negotiate the terms and conditions of employment. Collective Bargaining: process by which management and labor negotiate the terms and conditions of employment. – The NLRB will certify an exclusive bargaining agent for labor. – Both labor and management must bargain in good faith, but the law does not require that they reach an agreement. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

Strikes. T here are two basic forms of strikes: Strikes. T here are two basic forms of strikes: – Economic Strikes: strikes over wages. Workers can be replaced by permanent replacements. – Unfair Labor Practice Strikes: strikes alleging that the employer has committed an unfair labor practice. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32