law chapter 17 - test 4

Employee at will:

A worker without an employment contract

An employee at will could be fired for a good reason, a bad reason, or no reason at all

Common Law Protections:

The employment at will doctrine was created by the courts

• Wrongful discharge: An employer may not fire a worker for a reason that violates basic social rights, duties, or responsibilities

The Monge case:

Illustrates the concept of wrongful discharge, which prohibits an employer from firing a worker for reasons that violate public policy

The public policy rule:

• prohibits an employer from firing a worker for reasons that violate fundamental social rights, duties, or responsibilities.

  • Most commonly applied when an employee refuses to violate the law, exercise a legal right, or supports fundamental societal values

Refusing to Violate the Law:

• Employees may not be discharged for refusing to break the law

  • Courts have protected employees who refused to participate in an illegal price-fixing scheme

• Employers are generally not allowed to fire workers for testifying truthfully in court

• Judges have also consistently held that an employee may not be fired for missing work while serving on a jury.

Exercising a Legal Right

 An employer may not discharge a worker for exercising a legal right if that right supports public policy.

Supporting Societal Values

Courts are sometimes willing to protect employees who do the right thing, even if they violate the boss's orders.

Promises Made during the Hiring Process

• Promises made to job applicants are generally enforceable, even if not approved by the company top executives.

  • The court held that an employee handbook creates a contract

Covenant of Good Faith and Fair Dealing:

• This covenant requires both parties to behave reasonably, making an honest effort to meet both the spirit and letter of the contract.

• Tort Law:

• Workers have successfully sued their employers under the following tort theories: 

  • Defamation: Employers may be liable for defamation when they give false references about an employee.

Qualified privilege:

• Employers who give references are liable only for false statements that they know to be false or that are primarily motivated by ill will

  • More than half of the states recognize a qualified privilege for employers who give references about former employees.

Intentional infliction of emotional distress:

•  An intentional tort involving extreme and outrageous conduct that causes serious emotional harm

  • If a worker's behavior is particularly extreme and outrageous, causing serious emotional harm, employers may face liability under the tort of intentional infliction of emotional distress

Family and Medical Leave Act:

• guarantees all employees up to 12 weeks of unpaid leave each year for a newborn child, adoption, or a serious health condition of their own or in their immediate family. 

  • This statute defines an immediate family member as a spouse, child, or parent

  • An employee who takes a leave must be allowed to return to the same or an equivalent job with the same pay and benefits. 

  • The FMLA applies only to companies with at least 50 workers and to employees who have been with the company full time for at least a year

Pay transparency law:

• Requires companies to disclose salary ranges to both current employees and job applicants

  •  one-quarter of all workers are now covered

• Whistleblowers:

• Someone who discloses wrongdoing

  • Employees who disclose illegal behavior on the part of the employer

The National Labor Relations Act (NLRA):

• provides an important exception to the general rule denying free speech protection to employees. 

  • well known as legislation that protects employees right to unionize 

  • protects all employees:

    • who engage in collective activity

    • relating to work conditions

    • who are not supervisors

Social Media Policies:

• these policies violate the NRA if they unreasonably limit employee speech about work conditions

  • to be protected, the employee speech must be "concerted." (planned)

  • Employers are generally allowed to discipline employees who post content that reflects badly on the employer and does not involve a discussion of working conditions.

Stored Communications Act (SCA):

•  prohibits unauthorized access to electronic communications, which includes email, voice mail, and social media

  • employer has the right to monitor workers' electronic communications:

    • If the employee consents

    • the monitoring occurs in the ordinary course of business

    • in the case of email, if the employer provides the computer system.

Off-Duty Activities

 In the absence of a specific law to the contrary, employers do have the right to fire workers for off-duty conduct.

Alcohol and Drug Use:

 private employers are permitted to randomly test job applicants and workers for alcohol and illegal drugs.

Equal Employment Opportunity Commission (EEOC)

• permits employers to fire or refuse to hire workers for using prescribed drugs only if that use creates a safety issue.

  • enforcing federal employment laws

• Transportation Industries:

• Must test employees before hiring them, if there is reasonable suspicion of drug use, or after any accidents

  • Ex:  aviation, trucking, railroads, and mass transit, employers

  • Employers must randomly test these workers

Government Contractors:

• Under the Drug-free Workplace Act of 1988

  •  federal contractors must prohibit the manufacture, use, and distribution of illegal drugs in the workplace.

Government Employers:

• Public safety workers may be randomly tested for illegal drugs, and they may also be required to report legal drug use that could compromise their ability to perform their jobs.

  • Ex: police and firefighters

• Lie Detector Tests: Under the Employee Polygraph Protection Act of 1988

• employers may not require, or even suggest, that an employee or job candidate submit to a lie detector test except in the following cases:

  • An employee who is part of an "ongoing investigation" into crimes that have already occurred

  • An applicant applying for a government job

  • An applicant for a job in public transport, security services, banking, or at pharmaceutical firms that deal with controlled substances

• If an employer requires a lie detector test, it must give advance written notice of when the test will be given and advise workers that they are entitled to legal counsel.

• Osha In 1970, Congress passed the Occupational Safety and Health Act (OSHA):

• ensure safe working conditions. 

• OSHA has the following provisions:

• General duty: Employers must keep their workplace free from hazards that could seriously harm employees.

•  Records: Employers must keep records of all workplace injuries and accidents.

• Oversight: May inspect workplaces to ensure that they are safe. OSHA may assess fines for violations and order employers to correct unsafe conditions.

Guns

•  Employers have the right to prohibit guns in the workplace

  • Bring Your Gun to Work laws prevent companies from banning firearms in their parking lots

  • some states prohibit employers from asking workers if they have who own firearms

Financial Protection:

• All of the laws in this section were created by statute, not by the courts.

  • Fair Labor Standards Act: In 1938, Congress passed the Fair Labor Standards Act (FLSA), which regulates wages and limits child labor. 

  • This statute provides that hourly workers must be paid a minimum wage of $7.25 per hour, plus time and a half for any hours over 40 in one week

  • FLSA also prohibits "oppressive child labor."

    • Fourteen- and fifteen-year-olds are permitted to work limited hours after school in nonhazardous jobs, such as retail. Sixteen- and seventeen-year-olds may work unlimited hours in nonhazardous jobs.

Workers' Compensation:

ensure that employees receive payment for injuries incurred at work.

Health Insurance:  Under the Consolidated Omnibus Budget Reconciliation Act (COBRA)

•  former employees must be allowed to continue their health coverage for 18 months after leaving their job.

  • they must pay the cost themselves, plus as much as an additional 2 percent to cover administrative expenses.

  •  COBRA applies to any company with 20 or more workers.

Social Security:

• pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers.

  • financed through a tax on wages that is paid by employers, employees, and the self-employed.

The Federal Unemployment Tax Act (FUTA):

is the part of the Social Security system that provides support to the unemployed.

Pension Benefits: The Employee Retirement Income Security Act (ERISA)

• protects workers covered by private pension plans

  • The law was primarily aimed at protecting the benefits of retired workers if their companies subsequently went out of business.

• The National Labor Relations Act:

Ensures the right of workers to form unions and encourages management and unions to bargain collectively and productively.

Section 7 of the NRA:

• guarantees employees (except supervisors) the right to:

  • Organize and join unions

 Bargain collectively through representatives of their own choosing

Engage in other concerted activities.

Supervisor

Anyone with the authority to make independent decisions on hiring, firing, disciplining, or promoting other workers

National Labor Relations Board (NLRB):

• to administer and interpret the statute and to adjudicate labor cases.

Organizing a Union

• Under §9 of the NRA, a validly recognized union is the exclusive representative of the employees. 

  • This means that the union represents all of the designated employees, even if a particular worker does not want to be included, has not joined the union, or has not paid dues

  • treat all members fairly, impartially, and in good faith.

• The organizing process:

  • Campaign

  • Authorization cards

  • Election

Collective bargaining agreement (CBA):

• A contract between a union and a company

  • NLRA permits the parties to bargain almost any subject they wish, but it requires them to bargain wages, hours, and other terms and conditions of employment.

Prices

The union and the employer are not obligated to reach an agreement - they are required to bargain in good faith.

Concerted Action:

• The NRA guarantees the right of employees to engage in concerted action for mutual aid or protection

• when two or more individuals or entities plan, arrange, and agree to act collectively to achieve a shared objective or carry out a specific course of conduct.

  • Most common forms of concerted action are strikes and picketing

Strikes

• The NLRA guarantees employees the right to strike, but with some limitations.

  • No-strike clause: A clause in a CBA (Collective bargaining agreement) that prohibits the union from striking while the CBA is in force

Cooling-Off Period

Before striking to terminate or modify a CBA, a union must give management 60 days' notice.

Statutory Prohibition:

 Many states have outlawed strikes by public employees.

Sit-down strike

Members stop working but remain at their job posts, blocking replacement workers

Partial Strikes

A partial strike occurs when employees strike intermittently, stopping and starting repeatedly.

Replacement Workers:

• When employees go on strike, management has the right to use replacement workers to keep the business operating.

An economic strike

one intended to gain wages or benefits. During an economic strike, an employer may hire permanent replacement workers.

After a ULP (unfair labor practice) strike

union members are entitled to their jobs back, even if that means the employer must lay off replacement workers.

Picketing

• goal is to discourage employees, replacement workers, and customers from doing business with the company. 

  • Picketing the employer's workplace in support of a strike is generally lawful.

Secondary boycott:

A picket line established not at the employer's premises but at a different workplace

Lockout

• Management prohibits workers from entering the premises and earning their paychecks. By withholding work and wages, the company hopes to pressure the union to bargain less aggressively. Most lockouts are legal

  • Note that public employees (such as teachers and police officers) are much more likely to be unionized, but they are generally not covered by the NRA.

1. Traditional Common Law Rule:

• provided that an employee at will could be fired for a good reason, a bad reason, or no reason at all. But modern law has created some legal exceptions to this rule.

2. Wrongful Discharge and Public Policy:

Generally, an employee may not be fired for refusing to violate the law, exercising a legal right, or supporting fundamental societal values.

3. Promises Made During the Hiring Process:

•  Promises made during the hiring process are generally enforceable, even if not approved by the company's top executives.

Handbooks

• An employee handbook may create a contract. 

Covenant of good faith and fair dealing in contracts

This covenant requires both parties to behave reasonably, making an honest effort to meet both the spirit and letter of the contract.

Defamation

Employers may be liable for defamation when they give false references about an employee. More than half of the states, however, recognize a qualified privilege for employers who give references about former employees.

9. Pay Transparency:

These laws require companies to disclose salary ranges to both current employees and job applicants.

Whistleblowers

Employees who allow illegal behavior in the workplace receive some protection under both federal and state laws.

• 11. Free Speech

Employees do not have a right to free speech, with one exception: Under the NRA, nonsupervisory workers (whether or not unionized) cannot be fired for complaining about their jobs, so long as these complaints are shared with other employees and are not inappropriately hostile or violent.

• Off-Duty Activities

 In the absence of a specific law to the contrary, employers have the right to fire workers for off-duty conduct.

 Alcohol and Drug Use

• Under federal law, private employers are permitted to test job applicants and workers for alcohol and illegal drugs. The Equal Employment Opportunity Commission permits employers to fire or refuse to hire workers for using prescribed drugs only if that use creates a safety issue.

• Stored Communications Act (SCA):

Under the SCA, an employer has the right to monitor workers' electronic communications it (1) the employee consents, (2) the monitoring occurs in the ordinary course of business, or (3) in the case of email, if the employer provides the computer system. This monitoring may include an employee's social media activities.

Osha

The goal of the Occupational Safety and Health Act is to ensure safe conditions in the workplace.

Guns

Employers have the right to ban guns from the workplace, but, in almost half the states, laws prevent companies from banning firearms in their workplace parking lot.

• Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act regulates minimum and overtime wages. It also limits child labor.

Workers' Compensation

•  Workers' compensation statutes ensure that employees receive payment for injuries incurred at work.

Health Insurance

Former employees must be allowed to continue their health insurance for 18 months after leaving their job, but they must pay for it themselves.

Social Security:

• The Social Security system pays benefits to workers who are disabled or deceased workers.

 Unemployment Compensation:

Workers are eligible for unemployment compensation unless they have quit their job voluntarily or were fired for just cause.

 ERISA The Employee Retirement Income Security Act:

regulates private pension

Right to Organize Section 7 of the NLRA:

guarantees employees the right to organize and join unions, bargain collectively, and engage in other concerted activities. Section 8 of the NRA makes it an unfair labor practice for an employer to interfere with union organizing, discriminate against a union member, or refuse to bargain collectively. During a union organizing campaign, an employer may vigorously present anti-union views to its employees, but it may not use threats or rewards to defeat the union effort.

Exclusivity Under §9 of the NLRA:

•  a validly recognized union is the exclusive representative of the employees.

Bargaining

The employer and the union must bargain over wages, hours, and other terms and conditions of employment. They may bargain over other subjects, but neither side may insist on doing so. The union and the employer must bargain in good faith, but they are not obligated to reach an agreement.

Strikes

The NLRA guarantees employees the right to strike, with some limitations. After an economic strike, an employer is not obligated to lay off replacement workers to give strikers their jobs back, but it may not discriminate against strikers when filling job openings. After a ULP strike, the striking workers must get their jobs back

Picketing

• method of protest involving individuals standing, marching, or patrolling near a workplace or other premises to express grievances or influence behavior.

  • generally lawful

Lockouts

Most lockouts are legal.