1. Essentials of the legal environment today, 5e
Roger leroy miller
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2. employment, immigration, and labor law
Chapter 16
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3. Learning Objectives
What is the difference between an employee and an independent contractor?
What federal statute governs working hours and wages?
Under the Family and Medical Leave Act, in what circumstances may an employee take family or medical leave?
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4. LEARNING OBJECTIVES (CONT’D)
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?
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5. Agency Relationships
Agency is a “fiduciary” relationship based on trust and confidence.
Employer-Employee Relationships
Employee is one whose physical conduct is controlled by the employer.
Employer-Independent Contractor Relationships
Independent contractor is not an employee because employer does not have control over their physical performance.
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6. Agency relationships Determining Employee Status
Criteria used by the courts
7 questions courts often consider to determine whether a worker has the status of an employee or independent contractor
Criteria used by the Internal Revenue Service
Own criteria to determine whether a worker is an employee or independent contractor
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7. Agency relationships Formation of Agencies Consensual relationships
Agency by agreement of the parties
Agency by ratification
Agency by estoppel
Agency by operation of law
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8. Agency relationships Duties of Agents and Principals
Agent’s duties to the principal
Performance
Notification
Loyalty
Obedience
Accounting
Principal’s duties to the agent
Compensation
Reimbursement and indemnification
Cooperation
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9. Agency relationships Agent’s Authority Express authority
Authority declared in clear, direct, and definite terms
Implied authority
To do what is reasonably necessary to carry out his or her express authority and accomplish the objectives of the agency
Apparent authority
Apparent, not real authority
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10. Agency relationships Liability in Agency Relationships
Liability for contracts
Authorized acts
Disclosed or partially disclosed principal
Undisclosed principal
Unauthorized acts
Liability for torts and crimes
Determining the scope of employment
Liability for agent’s intentional torts
Liability for independent contractor’s torts
Liability for agent’s crimes
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11. Wages and hours 1930s Congress enacted several laws Davis-Bacon Act
“Prevailing wages”
Walsh-Healey Act
U.S. government contracts; minimum wage and overtime 1.5 times regular pay rates
Fair Labor Standards Act (FLSA)
Extends wage-hour requirements to cover all employers engaged in interstate commerce plus selected other businesses
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12. Wages and hours Child Labor Wages and Hours Overtime Exemptions
FLSA prohibits oppressive child labor
Wages and Hours
FLSA provides a minimum wage of $7.25/hour be paid to employees in covered industries (minimum wage may be higher at present)
Overtime Exemptions
Executive, administrative, professional employees
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13. Family and medical leave
1993 Congress passed Family and Medical Leave Act (FMLA)
Allows employees to take time off from work for family and medical reasons
Additional categories of FMLA have been created for military caregivers and emergencies that arise due to military service
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14. Family and medical leave
Coverage and Applicability of the FMLA
Requires employers with 50+ employees to provide up to 12 weeks of unpaid leave during any 12-month period
Expressly covers private and public employees who have worked for their employers for at least 1 year
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15. Family and medical leave
Violations of the FMLA
Employers who violate the FMLA can be required to provide remedies:
Damages to compensate an employee for lost benefits, denied compensation, and monetary losses up to an amount equivalent to the employee’s wages for 12 weeks
Job reinstatement
Promotion, if a promotion has been denied
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16. Worker health and safety
The Occupational Safety and Health Act
1970 Occupational Safety and Health Act administered by Occupational Safety and Health Administration (OSHA)
Imposes on employers a general duty to keep workplaces safe
Requires employers to post notices, perform record keeping, and submit reports
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17. Worker health and safety
State Workers’ Compensation Laws
2 requirements for an employee to receive benefits under workers’ comp law
The existence of an employment relationship
An accidental injury that occurred on the job or in the course of employment, regardless of fault
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18. Income security
Federal and state governments participate in insurance programs to protect employees and families by covering financial impact of retirement, disability, death, hospitalization, and unemployment.
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19. Income security Social Security Social Security Act; OASDI
Employers and employees contribute under the Federal Insurance Contributions Act (FICA)
Retired workers are eligible to receive monthly payments
Benefits are fixed by statute but increase with cost of living increases.
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20. Income security Medicare Federal government health-insurance program
Administered by the Social Security Administration for people 65 years and older or under 65 and disabled
Under FICA, employer and employee contribute to Medicare
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21. Income security Private Pension Plans
Employee Retirement Income Security Act (ERISA)
Governs employers that have private pension funds for their employees
Pension Benefit Guaranty Corporation (PBGC)
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22. Income security Unemployment Insurance
Federal Unemployment Tax Act (FUTA)
Provides compensation to eligible people who have lost their jobs
Eligible: worker must be willing and able to work
Not eligible: workers fired for misconduct or have voluntarily left their jobs
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23. Income security COBRA Employer-Sponsored Group Health Plans
Enables workers to continue their health-care coverage after their jobs have been terminated
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Employer-Sponsored Group Health Plans
Health Insurance Portability and Accountability Act (HIPAA)
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24. Income security Affordable Care Act (ACA)
Most employers with 50+ employees are required to offer health-insurance benefits
Any business offering health-insurance benefits may be eligible for tax credits
An employer who fails to provide benefits as required under the law can be fined
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25. Employee privacy rights
Electronic Monitoring
More than half of employers engage in some form of electronic monitoring of employees
Employee privacy protection
Was there a reasonable expectation of privacy?
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26. Employee privacy rights
Other Types of Monitoring
Lie-detector tests
Drug testing
Public employers – constrained by Fourth Amendment
Private employers – Fourth Amendment does not apply
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27. Immigration law
Most important laws governing immigration and employment
Immigration Reform and Control Act (IRCA)
Immigration Act
Estimated 12 million illegal immigrants live in the U.S.
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28. Immigration law Immigration Reform and Control Act (IRCA)
I-9 employment verification
I-9: Employment Eligibility Verification
Must perform to comply with IRCA
Enforcement
U.S. Immigration and Customs Enforcement (ICE) investigative arm of U.S. Department of Homeland Security
Penalties
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29. Immigration law The Immigration Act I-551 Alien Registration Receipt
Company seeking to hire noncitizen worker may only do so if the worker is self-authorized (lawful permanent resident or has a valid temporary Employment Authorization Document)
The H-1B visa program
Employee must be qualified in a “specialty occupation” (highly specialized knowledge and a bachelor’s degree or higher)
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30. Labor unions Federal Labor Laws Norris-LaGuardia Act
National Labor Relations Act (NLRA)
National Labor Relations Board (NLRB)
Good faith bargaining
Labor-Management Relations Act (LMRA)
Labor-Management Reporting and Disclosure Act (LMRDA)
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31. Labor unions Union Organization Collective Bargaining Strikes
Union elections
Union election campaigns
Collective Bargaining
Strikes
The right to strike – guaranteed by NLRA
After a strike ends
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