© 2013 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. Chapter 17: Employment, Immigration, and Labor Law © 2013 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.

Introduction  Historically, employment law was governed by the common law doctrine of “employment at will.”  Today employment law is heavily regulated by state and federal statutes. 2

© 2013 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. 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.  3

© 2013 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. Employment at Will  Exceptions to the Employment At Will Doctrine: Based on Contract Theory: is there an implied employment agreement? What about oral promises from employer? 4

© 2013 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. Employment at Will  Exceptions to At Will (cont’d): Based on Tort Theory: termination may give rise to wrongful discharge claims. Based on Public Policy: Requirements: Must be clearly stated in statutes governing that jurisdiction. Whistleblowing and Public Policy.  5

© 2013 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. Employment at Will  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. 6

© 2013 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.  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.  §2: Wage-Hour Laws 7

© 2013 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.  Child Labor. FLSA prohibits oppressive child labor practices.  Minimum Wage Requirements. 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. Wage-Hour Laws 8

© 2013 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. Wage and Hour Laws  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.  9

© 2013 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. Wage and Hour Laws  Overtime Provisions and Exemptions. Exemptions: FLSA overtime exemptions do not apply to manual laborers, nurses, police, firefighters, and other public safety workers. ‘blue collar’ workers. CASE 17.1 S MITH V. J OHNSON AND J OHNSON (2010). CASE 17.1 S MITH V. J OHNSON AND J OHNSON (2010). What factors did the court use to determine Smith’s status? 10

© 2013 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.Layoffs  Worker Adjustment and Retraining Notification Act: 60 day notice before a ‘mass layoff’ during 30 day period, which results in workforce loss of: At least 33% of fifty (50) full-time employees at a single job site, or At least 500 full-time employees. 11

© 2013 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.Layoffs  Worker Adjustment and Retraining Notification Act (continued). Notification Requirements. Remedies for Violations.  State Laws May Also Require Layoff Notices. 12

© 2013 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. Family and Medical Leave  Coverage and Application: FMLA requires employers with over 50 employees to provide 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.  13

© 2013 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. Family and Medical Leave  Benefits and Protections: Employer must continue worker’s health care on same terms. Worker must be restored to position upon return to work (unless it’s a “key” employee).  Violations of the FMLA. Damages. Job reinstatement, and Promotion (if lost). 14

© 2013 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. Worker Health and Safety  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. 15

© 2013 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. Worker Health and Safety  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. 16

© 2013 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. Income Security  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. 17

© 2013 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. Income Security  Private Pension Plans. ERISA does not require employers to setup pension plans, but provides rules on management and investment. Vesting.  Unemployment Compensation. 18

© 2013 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. Income Security  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. 19

© 2013 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. Income Security  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. 20

© 2013 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. Employee Privacy Rights  Electronic Monitoring in Workplace. Employee Privacy Protection: is there an employee expectation of privacy? ECPA: “business-extension exception” allows employer to monitor. Stored Communications. 21

© 2013 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. Employee Privacy Rights  Other Types of Monitoring. Lie-Detector Tests: Employee Polygraph Protection Act exempts government, security, and controlled substance firms. CASE 17.2 NASA V. N ELSON (2011). CASE 17.2 NASA V. N ELSON (2011). What privacy law did Nelson claim NASA was violating? Drug Testing. Genetic Testing. 22

© 2013 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. Immigration Law  Immigration Reform and Control Act. IRCA makes it illegal to hire, recruit, or refer for a fee, someone not authorized to work in the U.S. I-9 Verification: for new hires. Enforcement: by I.C.E. Penalties.  23

© 2013 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. Immigration Law  Immigration Reform and Control Act. Penalties. Criminal Actions: ICE can seek criminal punishments. Penalties for employers. Mitigation or Aggravated penalties. 24

© 2013 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. Immigration Law  The Immigration Act p laces 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. 25

© 2013 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.  Federal Labor Laws. Norris-LaGuardia Act: protects peaceful strikes by limiting the injunction powers of federal courts. National Labor Relations Act: established the right of workers to strike and engage in collective bargaining. Established NLRB. Labor Unions 26

© 2013 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.  Labor Management Relations Act: prohibits 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, secondary boycotts. Labor Unions 27

© 2013 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.  Union Organization. Preliminary Organizing. Workers sign authorization cards. Cards can justify an election. Union Elections. Must represent an “Appropriate Bargaining Unit”: mutuality of interest among all represented workers, job similarity. Labor Unions 28

© 2013 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.  Union Organization. Union Election Campaigns. An election can be held only if it can be shown that at least 30% of the workers will be represented. Key Restraint on management is nondiscrimination rule (cannot selectively prohibit union solicitation). Labor Unions 29

© 2013 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.  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.  Labor Unions 30

© 2013 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.  Union Election Campaigns. C ASE 17.3 L OCAL J OINT E XECUTIVE B OARD OF L AS V EGAS V. NLRB (2008). C ASE 17.3 L OCAL J OINT E XECUTIVE B OARD OF L AS V EGAS V. NLRB (2008). Were the activities of Ms. Sapien and Ms. Briand ‘illegal surveillance’ that violated the National Labor Relations Act? Labor Unions 31

© 2013 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.  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.  Labor Unions 32

© 2013 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.  Collective Bargaining. Terms and Conditions of Employment: Pay, Safety conditions, Insurance, Pensions. Closing or Relocating a Plant: Severance Pay. Management must bargain over the economic consequences of moving. Labor Unions 33

© 2013 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.  Strikes: two forms. Economic Strikes. These are strikes over wages. Workers can be replaced by permanent replacements. Unfair Labor Practice Strikes. Alleging the employer has committed an unfair labor practice. Labor Unions 34

© 2013 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.  Strikes. Right to Strike: guaranteed by NRLA. Illegal Strikes. Secondary Boycotts. Common Situs Picketing. Hot-Cargo Agreements. Wildcat Strikes. Strikes that Threaten National Health or Safety. Strikes that Contravene No-Strike Clauses. Labor Unions 35

© 2013 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.  Strikes. Rights of Strikers After Strike Ends. Generally, an employer has the right to permanent replacements (striking workers are not guaranteed a job). But if the employer has not hired replacements, then it must rehire the strikers to replace open positions. Labor Unions 36

© 2013 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.  Lockouts. Occurs when the employer shuts down to prevent employees from working. When an employer believes a strike is imminent. Lockouts may be a legal employer response. Labor Unions 37

© 2013 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.  Unfair Labor Practices. Employer’s Refusal to Recognize Union and Negotiate. Presumption of Employee Support. Questions of Majority Support. Employer’s Interference in Union Activities. No threats, or even asking employees about their views. Labor Unions 38

© 2013 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. Labor Unions 39