Chapters 12, 15, 20, 22

Fair Labor Standards Act (FLSA)

→ covers employees engaged in "commerce" across state lines or foreign areas

Governed by the department of labor

Involves anybody who is in interstate commerce (it means that the business is providing services across state lines or to another country)

Covers minimum wage, overtime, recordkeeping, and child labor

Does not cover employers with less than 2 employees

Minimum Wage

The minimum wage is the lowest amount that an employer may pay per hour to employees who are paid by the hour

If the state minimum wage is lower than the federal minimum wage, then federal minimum wage applies

Federal minimum wage is 7.25 in any state that does not have a state minimum wage

Employers may not pay less than the minimum wage per hour

independent Contractor

An independent contractor is a self-employed individual who provides services to another party under the terms of a contract but is not considered an employee. They control how and when they work, pay their own taxes, and are not entitled to employee benefits like health insurance or paid leave.

employee

An employee is a worker hired by an organization who performs services under the employer's control, including how, when, and where the work is done. Employees receive wages, benefits, and legal protections such as unemployment insurance and workers' compensation.

Employee vs. Independent Contractor

Independent contractors are not covered by minimum wage or overtime rules.

Employers might misclassify workers to avoid taxes and benefits.

Misclassification costs the government over $7 billion in lost payroll taxes every 10 years.

DOL and several states have intensified enforcement against misclassification.

Economic Realities Test Factors (used to determine if someone is an employee):

Employer's control over how work is performed,

Worker's opportunity for profit/loss based on managerial skill,

Worker's investment in equipment or helpers,

Skill required for the work,

Permanence of the working relationship,

Whether the work is integral to the employer's business.

Overtime

A 40 hour work week
Employee should be paid 1.5 regular hourly rate
You cannot have a policy that denies overtime
You cannot apply the approval as an obstacle to payment.
States have their own overtime laws
Under the age of 16: restrictions on hen you can work and how many hours you can work
You cannot have children working in factories that are hazardous

Recordkeeping Requirements

Employers must keep accurate records of employee work hours and wages.

Records must track start times, end times, and total hours worked.

Absence of records is held against the employer in wage disputes.

Common recordkeeping issues:

"Buddy punching": Employees clocking in/out for each other (prohibited).

Apps and digital systems: Many employers now use apps for electronic time tracking.

Gig economy

refers to a labor market characterized by short-term contracts and freelance work, often facilitated by digital platforms, where individuals earn income from temporary, on-demand assignments rather than traditional full-time employment.

gig economy worker

A gig economy worker is someone who earns income by taking on short-term, flexible jobs—often through apps or digital platforms like Uber, DoorDash, or Fiverr—instead of holding a traditional full-time job. These workers are usually classified as independent contractors, not employees, so they typically don't receive benefits like health insurance or job security.

Overtime Exemptions Overview

To be exempt from overtime, employees generally must:

Be paid on a salary basis of at least $684 per week (or $35,568 per year),

And perform specific job duties that fall into one of the recognized exemption categories.

Executive Exemption

Primary duty: Managing the enterprise or a department/subdivision.

Must direct at least two full-time employees.

Must have authority to hire or fire, or their input must carry significant weight.

A $75,000 salary is generally considered a threshold for executive exemption, but it's not the sole requirement for qualifying under the Fair Labor Standards Act (FLSA).

Administrative Exemption

Work must be non-manual and primarily office-related.

Must relate to the management or general business operations of the employer or customers.

Must exercise discretion and independent judgment on significant matters.

Professional Exemption

Learned Professional: Work requires advanced knowledge in a field of science or learning, typically acquired by prolonged specialized instruction (e.g., doctors, lawyers).

Creative Professional: Work requires invention, imagination, originality, or talent in a recognized artistic or creative field.

Computer Employee Exemption

Must be paid:
At least $684 per week (salary), OR
At least $27.63 per hour.

Qualifying roles include: Systems analysts, programmers, software engineers, or similar.

Duties involve design, development, documentation, analysis, creation, testing, or modification of computer systems or programs.

Outside Sales Exemption

No minimum salary requirement.

Primary duty must be:

Making sales, or
Obtaining orders or contracts for services or facility use.

Work must be customarily performed away from the employer's place of business.

Highly Compensated Employees (HCE)

Must earn at least $107,432 annually.

Must regularly perform at least one of the duties of an executive, administrative, or professional employee to qualify as exempt.

Unpaid intern

No expectation of compensation
Provides training
Generally tied to formal education
Accommodates your academic commitments
Limited in time
Cant pay somebody and fire them to hire unpaid intern
Not going to hire that person ever

Occupational safety & Health act

OSHA's mission is to assure America's workers have safe and healthful working conditions free from unlawful retaliation. OSHA carries out its mission by setting and enforcing standards; enforcing anti-retaliation provisions of the OSH Act and other federal whistleblower laws; providing and supporting training, outreach, education, and assistance; and working collaboratively with our state OSHA programs as well as ensuring that they are at least as effective as federal OSHA, furthering a national system of worker safety and health protections.

OSHA authority:

Promulgate standards
conduct inspections of workplaces
Issue citations for violations
recommend penalties.

Employers cannot retaliate (discharge, discriminate) against employees for:

Filing a complaint,
Starting or participating in any OSHA-related proceeding,
Testifying or preparing to testify,
Exercising any OSHA-protected right on behalf of themselves or others.

Complaint Filing:

Employees can submit oral or written complaints (since March 2015 Final Rule).

Must file a complaint with OSHA within 180 days of learning of retaliation.

OSHA Investigation - Prima Facie Case Requirements: Employee must show:

They engaged in protected activity under OSHA,

The employer knew or suspected that the employee engaged in protected activity,

The employee suffered an adverse employment action,

The circumstances raise an inference that the protected activity was a contributing factor to the adverse action.

Employer's Burden (retaliation)

Employers must prove, by clear and convincing evidence, that the same action would have been taken even without the protected activity.

Employees may refuse to work when:

Exposed to a dangerous condition posing risk of serious injury or death,

Insufficient time to resort to normal OSHA complaint/enforcement procedures.

Requirements for Lawful Refusal:

Employee must believe in good faith that danger exists,

A reasonable person under the same circumstances would also conclude danger exists,

Where possible, the employee should try to get the employer to fix the hazard before refusing.

Additional Key Points:

Retaliation for a reasonable refusal is prohibited.

Terminated employees may challenge discharge before federal agencies and courts.

International Parallel: Other countries (e.g., Canada) also recognize the right to refuse dangerous work.

Herbert v. Altimeter, Inc.:

The central legal question in Herbert v. Altimeter, Inc. is whether an employer can lawfully terminate an employee who reports unsafe working conditions if the employer believes the concerns are unfounded.

The case underscores that under Oregon law (ORS 654.062(5)), the act of reporting perceived unsafe conditions is protected—even if the employer disputes the accuracy of the complaint.

The court emphasized that retaliation protections exist to encourage good-faith reporting of safety hazards, and an employer cannot escape liability simply by claiming that the condition wasn't dangerous.

The jury must determine whether a reasonable person would believe the working condition was unsafe and whether the termination was causally connected to the employee's protected complaint.

Prioritization of OSHA Inspections

Imminent danger complaints,
Fatal and catastrophic accidents,
Employee complaints of hazardous conditions,
High-hazard industries,
Random general inspections.

OSHA Reporting and Record-Keeping Requirements

Employers with 8+ employees must:
Keep records and submit reports on occupational injuries and illnesses.
Notify OSHA of serious incidents:
Within 8 hours for any fatality.
Within 24 hours for:
Amputation,
Loss of an eye,
In-patient hospitalization of an employee.

Record injuries if they involve:
Death,
Loss of consciousness,
Medical treatment beyond first aid,
One or more lost workdays,
Work or motion restrictions,
Job transfer.

Exposure records:
Maintain records of exposures to toxic materials or harmful physical agents.
Employee-initiated inspections:
Employees or representatives can request an OSHA inspection if they believe a violation or imminent danger exists.

Additional Concepts to Remember

Reasonable Person Standard:
Would a reasonable person, facing the same circumstances, believe there was a real danger of death or serious injury?

Temporal Proximity:
A close timeline between protected activity and retaliation can suggest unlawful motives.

Employer Motivation:
Important to investigate the employer's true reasons; was there a pretext?

Circumstantial Evidence:
Retaliation can be proven through the overall evidence of surrounding circumstances, not just direct proof.

Imminent Danger and Timing:
Can the risk be addressed through normal OSHA procedures, or is the threat so immediate that refusal is justified?

Purpose of Collective Bargaining

Employees join unions to gain influence over wages, hours, and working conditions.

That influence is exercised through the collective bargaining process governed by the NLRA.

Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers.

Recognition of the Union

An employer must recognize a union as the exclusive representative of employees when it shows majority support.

Majority support can be shown through:
Signed authorization cards, or
Winning a representation election.

Once aware of majority support, employer must recognize and bargain with the union.

Governed by Section 8(d) of the NLRA.

Refusal to bargain is:
An unfair labor practice for employers under Section 8(a)(5).
An unfair labor practice for unions under Section 8(b)(3).

Scope and Limits of the Duty to Bargain

Obligation to Bargain - Not Obligation to Agree
Section 8(d) emphasizes:

Obligation to bargain collectively in good faith.
No obligation to reach agreement or make concessions.

Reflects a tension between:
Promoting industrial peace (through negotiation).
Preserving freedom of contract (no forced agreement).

B. Required Bargaining Subjects
Parties must meet at reasonable times to discuss:
Wages
Hours
Terms and conditions of employment

Any agreement reached must be reduced to writing upon request.

writing upon request

The phrase "Reduce agreements to writing upon request" refers to a common contract or employment-related principle meaning:
If one party requests it, any agreement—whether verbal or informal—must be put into a written document.
Why it matters:
Proof of terms: Written agreements help clarify what was actually agreed to.
Legal enforceability: Some jurisdictions or statutes require certain agreements to be in writing to be enforceable (e.g., real estate, contracts lasting over a year).
Protection for both parties: Ensures that all terms are clearly understood and can prevent misunderstandings.
This clause is often found in employment contracts, collective bargaining agreements, or union negotiations under the NLRA (National Labor Relations Act), ensuring accountability and transparency.

What Constitutes Good Faith

Parties must:

Meet at reasonable times.

Genuinely negotiate over wages, hours, and working conditions.

Reduce agreements to writing upon request.

Surface bargaining or refusal to propose terms may violate NLRA.

What Are Mandatory Bargaining Subjects?

Defined as matters that vitally affect the terms and conditions of employment for employees in the bargaining unit.

Section 8(d) and Section 9(a) of the NLRA require good faith bargaining over these subjects.

The overarching idea of Mandatory Bargaining Subjects under the NLRA is that employers and unions must bargain in good faith over issues that directly affect employees' wages, hours, and working conditions, as required by Sections 8(d) and 9(a). Courts have broadly interpreted these subjects to include not just pay and schedules, but also things like workplace discipline and email use policies—highlighted by cases such as Ford Motor Co., California Newspapers, and Alan Ritchey, Inc.While direct employment terms must be negotiated, managerial decisions like plant closures are not mandatory topics—though employers must still bargain over the effects those decisions have on employees, such as severance and layoffs.

Mandatory Bargaining Subjects examples

Examples:
Wages and salary (base pay, bonuses)
Work hours and scheduling
Overtime rules
Health insurance and other benefits
Job duties and workload
Grievance and disciplinary procedures
Union security clauses (e.g., union dues)
Safety rules and procedures
Layoff and recall procedures
Drug testing related to work performance

Permissive Bargaining Subjects

Permissive subjects are those that:

Are neither mandatory nor illegal.
Do not directly relate to wages, hours, or terms and conditions of employment.
Parties may bargain over these topics, but:
Cannot insist on them to an impasse.
If rejected, they must be dropped from negotiations.

The overarching idea of Permissive Bargaining Subjects under the NLRA is that these are topics not directly tied to employees' wages, hours, or working conditions, and while parties may negotiate them, they cannot insist on them to the point of impasse. Permissive subjects, such as union procedures or corporate charitable activities, are voluntary and unilateral changes about them do not violate labor law, as clarified by cases like NLRB v. Borg-Warner and Laidlaw Transit.

Permissive Bargaining Subject examples

Use of the employer's logo in union communications

Internal union affairs (e.g., structure of bargaining team)

Employer's business decisions unrelated to employment terms (e.g., closing a plant for non-labor reasons)

Settlement of unfair labor practice charges

Charitable contributions

Changes in product lines or advertising

benefit or no

When analyzing whether a bargaining subject is mandatory or permissive, it is important to also consider whether the issue involves a benefit to employees. Generally, if a subject directly affects wages, hours, or other significant benefits or working conditions, it is a mandatory subject and must be bargained over in good faith under the NLRA. Examples include health insurance, vacation time, bonuses, and severance pay. If the subject does not involve a direct employee benefit—such as procedures for union contract ratification or participation in corporate charity events—it is typically permissive and can be discussed, but neither side can insist on it to impasse. Therefore, determining whether an issue provides a benefit helps identify whether it is mandatory or permissive in negotiations.

Prohibited Bargaining Subjects

Proposals that involve a violation of the NLRA or other laws

Any attempt to bargain over a prohibited subject is a violation of the duty to bargain in good faith

Historically, labor organizing was seen as a

criminal conspiracy under common law. The idea was that when workers acted collectively (e.g., striking or forming unions), they were "conspiring" to interfere with business or contract rights. This legal doctrine was often used in the 19th and early 20th centuries to suppress labor movements.

Labor Movement

The labor movement refers to the organized effort by workers to improve working conditions, wages, hours, and labor rights.

Injunctions in Labor Disputes

Injunctions are court orders that require a party to do or refrain from doing specific acts.

Employers commonly sought injunctions to prevent strikes, picketing, or union organizing.

These court orders were powerful tools to disrupt labor efforts and were often issued preemptively or during disputes.

Example: A company might request a court injunction to stop workers from picketing outside a factory during a strike.

Court Orders to Refrain from Specific Acts

These are specific types of injunctions where the court tells a person or group to stop a particular action. In labor law, this typically applied to:

Striking workers
Union leaders
Sympathetic boycotts

This tactic was often used to frame labor actions as unlawful interference with business.

Yellow-Dog Contracts

A yellow-dog contract is an employment agreement where the worker promises not to join a union as a condition of employment.

These contracts were designed to prevent unionization.
Widely used in the early 20th century before being outlawed.

An employee cannot sue

over a workplace rule unless they can show it affects them personally and that the effect is real and immediate.

A union cannot challenge a company policy

unless it represents members who are actually harmed by the policy.

Employers may seek judicial review

of NLRB decisions only when those decisions are final and directly impact their legal obligations.

Reasons Workers Want to Unionize

Better Wages: Unions often negotiate for higher pay.

Better Hours: Advocacy for fair and consistent scheduling.

Job Security: Protection against unjust termination.

Improved Benefits: Health insurance, retirement plans, etc.
Safer Working Conditions: Enforcing OSHA standards and protections.

Rights Protection: Safeguarding workers' legal and human rights.

Collective Voice: Unification expedites negotiation processes
.
Example: Starbucks unionization movement highlights these demands.

Reasons Workers Might Avoid Unionizing

Fear of Misrepresentation: Concern that union leaders won't reflect their interests.

Union Dues/Fees: Required payments may be a financial burden.

Limits on Earnings/Hours: CBAs may cap overtime or shift flexibility.

Reduced Flexibility: Less control over schedule or job assignments.

Indirect Resolution: Issues may have to go through the union before reaching management.

Right-to-Work Laws: Make union power and funding weaker in certain states.

Career Limitations: Perception that union jobs limit individual advancement or hiring flexibility.

Why Employers Might Support a Union

Single Channel for Complaints: Streamlines communication through a formal grievance process.

Reduced Legal Risk: Collective Bargaining Agreements (CBAs) often require mediation/arbitration, reducing lawsuits.

Standardization: Sets uniform rules and expectations, helping limit employer liability.

Improved Workplace Conditions: May lead to better morale and lower turnover.

Why Employers Might Oppose a Union

Reduced Control: Management loses unilateral decision-making power.

Increased Costs: Higher wages, benefits, and admin costs from CBAs.

Risk of Strikes/Work Stoppages: Disruption to operations and profitability.

Hiring Constraints: Unions can narrow the pool of applicants or slow hiring processes.

National Labor Relations Board (NLRB)

Sets Unionization Procedures and election protocols

Adjudication & Prosecutorial Functions:
Can conduct hearings and issue rulings
Can bring enforcement actions for violations

Handles Two Types of Cases:

C Cases: Unfair labor practice charges (e.g., illegal firing, interference)

R Cases: Representation cases (e.g., union elections and certification)

Unfair Labor Practice Charges ("C" Cases)

These involve alleged violations of the National Labor Relations Act (NLRA). Examples include:

Illegal firing or discipline of employees for union activity.

Employer interference, restraint, or coercion in employee rights (e.g., surveillance, threats, promises).

Refusal to bargain in good faith by employers or unions
.
C stands for "Charge"—a charge is filed against an employer or union for violating worker rights.

Representation Cases ("R" Cases)

These relate to union activity and involve:
Union representation elections, where workers vote on whether to be represented by a union.

Certification or decertification of a union as the exclusive bargaining representative.

Unit determination—deciding which group of employees constitutes a proper bargaining unit.

R stands for "Representation"—focused on determining and certifying union status.