Chapter 11 Legal Studies

Employment at Will

Not a contractual employee

Employers have the right to determine an employee with or without advance notice and with or without just cause

Ex. Cashier

Exception to Employment at Will

Express contract, public policy, covenant of good faith, implied contracts, or anti discrimination laws

Public Policy or Covenant of Good Faith

Fired for whistleblowing, testifying

Express Contract

Case of termination is specified in the contract or an oral promise made by an employer that a reasonable person would believe extends protection against termination

Implied Contracts - Exception

Employee manual extends some protections

Or an oral promise made by an employer that a reasonable person would believe extends protection against termination

Public Policy Exception

Contract violates the welfare of the General public

Ex. Protects whistleblowers (free speech)

Covenant of Good Faith and Fair Dealing

Cannot be fired without just cause or in bad faith/ with malicious intent

Minority Rule - No firing to avoid paying bonuses

Public Policy vs. Statutory Exception

Public policy is created by courts and protects societal values

Statutory exception created by legislatures and protects specific legal rights

FLSA

Fair Labor Standards Act

Payment of minimum wage

Max 40-hour work week

Overtime pay

Child labor laws

Exempt Positions from FLSA

Professional- requires a specialized education (lawyer, teachers)

Managerial - store manager

Administrative - finance officers, executive assistants

Duties Test Exemption (Nonexempt)

Little necessary education, skill level, or certifications required for position

Paid hourly

Physical labor required

Repetitive tasks

Close supervision

Essentially just not executive, managerial, or administrative

Salary Basis Test Exemption (If Failed)

Ensures employees are paid for the job, not the hours

Fixed workweek

Must make a minimum salary of 47,000 if they make less, they cannot be exmept

If they make less than 47,000, they must get overtime and minimum wage

Misclassification

Company has to pay for any work they did over 40-hour work week as back pay plus interest

Defined Benefit Plan

Pension - employer promises to pay a monthly sum to employees who retire from the company after a certain number of years of service

Based on length of service and the employee’s final salary rate

Defined Contribution Plan

Tax-deferred retirement savings account - Employee commits to saving a certain percentage of their base pay in an account controlled by the employer. 

Funds grow tax-free until they are withdrawn

Ex. 401k

ERISA

Employee Retirement Income Security Act

Requires employers to make certain disclosures related to investment risk and be transparent with plan beneficiaries

(Record keeping regulations)

Worker’s comp if injured within duties

COBRA

Consolidated Omnibus Budget Reconciliation Act

Employers provide continuous coverage to any employee who was been terminated even if they were fired for cause

Provides health coverage for up to 18 month NOT premiums

Patient Protection Affordable Care Act (PPACA)/ Health Care and Education Reconciliation Act (HCERA)

50 or more full-time employees to purchase health care insurance for their employees

Offers tax incentives to small businesses if they offer health care coverage to their employees and pay at least 50% of the total costs for their coverage

HIPAA

Health Insurance Portability and Accountability Act

Protects employee medical information and records from disclosure to a third-party

Workers’ Compensation

Provide an employee who is injured in course of work with partial payment in return for them giving up the right to sue

Injury was accidental and within course of employment

FMLA

Family and Medical Leave Act

Provides basic protections for workers who need a brief leave from work for themselves or an immediate family member (child, spouse, parent)

12 weeks of unpaid leave with 1250 hours

30 days notice

50+ empoyees

Defenses to Workers’ Comp Claim

Injury is intentionally self-inflicted

Reckless actions

Frolic

Willful misconduct or horseplay

Intoxication

OSHA

Occupational Safety and Health Act

Set national safety standards

Mandatory disclosure of hazardous working areas and assignments

Record-keeping and reporting requirements

General duty for employers to keep a workplace reasonably safe

Employee Privacy

If employer owns the property, your information is not protected

Can monitor business calls, but must disconnect when they realize call is personal

Americans with Disabilities Act (ADA)

Prevents discrimination on the basis of disability

Employer can’t pick and choose who they test

NLRA

Protections for the rights of workers to organize, engage in collective bargaining, and go on strike, and other forms of concerted activity in support of their demands

Negotiate terms of employment

Don’t need to be a member of the NLRA to get protection

Collective Bargaining

The process of negotiating an agreement on behalf of an entire workforce

Section 7 states rights and limits for workers when bargaining, during strikes, and analyze impact of strike

Right-To-Work Laws

States can ban forced union membership

Labor-Management Reporting and Disclosure Act

System of reporting to expose fraud

Financial disclosures by unions

Gives NLRB additional oversight for internal union governance

Authorization Cards

Indicates an employee’s willingness to participate in a union

Must get at least 30% of authorization cards signed by employees in certain bargaining units

Election

vote to elect of reject unionization by NLRB

Union Shop

Employees must join a union within a certain period after employment

Open Shop

Union member ship is completely optional

Economic vs. Unfair Labor Practice Strike

Company does NOT have to rehire after economic strike

Employee cannot be discriminated against when applying later

FMLA Protections

Employer cannot threaten adverse job action

Employees are guaranteed employment in similar job at same rate of pay

Employer must reinstate immediately upon notification that leave is over

Permissive Substance

Optional Bargaining Topic for NLRA

Having no duty to negotiate is an unfair labor practice

Ex. Wages, hours

Good Faith Bargaining Requirements

Requires both sides negotiate in good faith

Tactics to stall or hinder the process are unfair

Opinions are valid

Ex. Employer can’t make promises to persuade against a union

Grievances

A complaint filed by a union to challenge an employer’s treatment of union member(s)

Picketing

Used to publicize and gain support for their cause

Illegal Work Stoppages

Wildcat strikes, sit-in strikes, strike during cooling-off period, secondary boycott

Wildcat Strike

Small groups go on strike for short bursts without authorization

Ex. Workers walk out

Sit-In Strike

Workers stop working and occupy workplace

Ex. Workers sit inside a factory refusing to leave

Strike During Cooling-Off Period

Strike during illegally mandated waiting period

Threatens national safety

Ex. TSA agents strike before injunction ends

Secondary Boycott

Union pressures neutral third party

Ex. UNion pickets retailer to hurt supplier company

Unionizing Process

Authorization cards, election, ceritification, collective bargaining