Chapter 40 Labor and Employment Law

2  What is the employment at will doctrine? When and why are exceptions made?  What federal statutes govern working hours? What federal statutes govern labor unions and collective bargaining?  What federal act was enacted to protect the health and safety of employees?  What is the Family and Medical Leave Act?  Does electronic monitoring violate employees’ right to privacy?  What is the employment at will doctrine? When and why are exceptions made?  What federal statutes govern working hours? What federal statutes govern labor unions and collective bargaining?  What federal act was enacted to protect the health and safety of employees?  What is the Family and Medical Leave Act?  Does electronic monitoring violate employees’ right to privacy? Learning Objectives

3 Introduction  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.  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.

4 Wage-Hour Laws  Hours and Wages. 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.  Child Labor. FLSA prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child.  Hours and Wages. 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.  Child Labor. FLSA prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child.

5 Labor Unions  Norris-LaGuardia Act. Protects peaceful strikes by limiting the injunction powers of federal courts.  National Labor Relations Act. Establishes the right of workers to strike and engage in collective bargaining.  Norris-LaGuardia Act. Protects peaceful strikes by limiting the injunction powers of federal courts.  National Labor Relations Act. Establishes the right of workers to strike and engage in collective bargaining.

6 Labor Unions  Labor Management Relations Act. Prohibits certain unfair union practices such as closed shops.  Labor-Management Reporting and Disclosure Act. Regulates the internal operations of unions and outlaws hot-cargo agreements.  Labor Management Relations Act. Prohibits certain unfair union practices such as closed shops.  Labor-Management Reporting and Disclosure Act. Regulates the internal operations of unions and outlaws hot-cargo agreements.

7 Union Organization  Union organization involves: Elections. An election can be held only if it can be shown that at least 30% of the workers will be represented. Election Campaigns. The National Labor Relations Board 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.  Union organization involves: Elections. An election can be held only if it can be shown that at least 30% of the workers will be represented. Election Campaigns. The National Labor Relations Board 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.

8 Collective Bargaining  Collective bargaining is the 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.  Collective bargaining is the 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.

9 Strikes  There are two basic forms of strikes: Economic Strikes. These are strikes over wages. Workers can be replaced by permanent replacements. Unfair Labor Practice Strikes. These are strikes alleging that the employer has committed an unfair labor practice.  There are two basic forms of strikes: Economic Strikes. These are strikes over wages. Workers can be replaced by permanent replacements. Unfair Labor Practice Strikes. These are strikes alleging that the employer has committed an unfair labor practice.

10 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. Procedures and Violations: Employers with 11 or more employees required to keep records.  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. Procedures and Violations: Employers with 11 or more employees required to keep records.

11 Worker Health and Safety  State Workers’ Compensation Laws. These laws reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by: Requiring that injured employees make a claim against the employer’s workers’ compensation insurance policy, instead of suing the employer. Requiring most employers to carry workers’ compensation insurance.  State Workers’ Compensation Laws. These laws reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by: Requiring that injured employees make a claim against the employer’s workers’ compensation insurance policy, instead of suing the employer. Requiring most employers to carry workers’ compensation insurance.

12 Income Security  Social Security and Welfare.  Private Pension Plans. Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working.  Unemployment Insurance.  Social Security and Welfare.  Private Pension Plans. Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working.  Unemployment Insurance.

13 COBRA  COBRA prohibits the discontinuance of insurance benefits of workers who have voluntarily or involuntarily been separated from work, unless the involuntary separation was on the basis of gross misconduct.  Employers must comply if they have more than 20 employees.  COBRA prohibits the discontinuance of insurance benefits of workers who have voluntarily or involuntarily been separated from work, unless the involuntary separation was on the basis of gross misconduct.  Employers must comply if they have more than 20 employees.

14 Family and Medical Leave Act  The FMLA requires employers with over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition.  The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work.  The FMLA requires employers with over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition.  The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work.

15 Employee Privacy Rights  Laws protecting Employee Privacy Rights Electronic Communications Privacy Act allows employers to monitor electronic communications in the workplace. But it prohibits intentional interception of personal communications ECPA does permit employers to monitor employee electronic communications in the course of business.  Laws protecting Employee Privacy Rights Electronic Communications Privacy Act allows employers to monitor electronic communications in the workplace. But it prohibits intentional interception of personal communications ECPA does permit employers to monitor employee electronic communications in the course of business.

16 Employee Privacy Rights  Electronic Performance Surveillance. Most limitations can be avoided if the employer informs employees that surveillance will occur.  Screening Procedures. Application question must have some reasonable connection to the job sought.  Discussion: Electronic Monitoring in the Workplace.  Electronic Performance Surveillance. Most limitations can be avoided if the employer informs employees that surveillance will occur.  Screening Procedures. Application question must have some reasonable connection to the job sought.  Discussion: Electronic Monitoring in the Workplace.

17 Employee Privacy Rights  Privacy Expectations and systems Courts generally hold for employers.  Other Types of Monitoring Lie Detector Tests. Prohibited, except under the ongoing investigation exception. Drug Testing. Most government employees are subject to testing and the rights of private employees vary from state to state. AIDS Testing. Some state statutes restrict AIDS testing.  Privacy Expectations and systems Courts generally hold for employers.  Other Types of Monitoring Lie Detector Tests. Prohibited, except under the ongoing investigation exception. Drug Testing. Most government employees are subject to testing and the rights of private employees vary from state to state. AIDS Testing. Some state statutes restrict AIDS testing.

18 Employment-Related Immigration Laws  The Immigration Reform and Control Act prohibits the hiring of illegal aliens.  The Immigration Act of 1990 limits the number of legal immigrants into the U.S.  The Immigration Reform and Control Act prohibits the hiring of illegal aliens.  The Immigration Act of 1990 limits the number of legal immigrants into the U.S.

19 Wrongful Discharge  The doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability.  Some states however recognize one or more judicial exceptions to this rule, while some states recognize none.   The doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability.  Some states however recognize one or more judicial exceptions to this rule, while some states recognize none. 

20 Wrongful Discharge  There are three such exceptions to the doctrine of employment at will: Contract (implied covenant of Good Faith and Fair Dealing). Torts: fraud, emotional distress. Public Policy.  There are three such exceptions to the doctrine of employment at will: Contract (implied covenant of Good Faith and Fair Dealing). Torts: fraud, emotional distress. Public Policy.

21 Whistleblower Statutes  A whistleblower is one who reports illegal employer activities to the proper authorities.  Whistleblowers are frequently subjected to retaliation for such activities.  There are a number of state and federal (Whistleblower Protection Act) whistle-blower protection statutes, offering a wide variation in protections.Whistleblower Protection Act  A whistleblower is one who reports illegal employer activities to the proper authorities.  Whistleblowers are frequently subjected to retaliation for such activities.  There are a number of state and federal (Whistleblower Protection Act) whistle-blower protection statutes, offering a wide variation in protections.Whistleblower Protection Act