Chapter 20 - Employment Law

employment at will

A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.

Exceptions based upon K theory

if the employee is fired outside of the terms of the implied K, the employee may succeed in an action for breach of K, even though no written K exists.

Exception based on tort

- the termination of an employee may give rise to a wrongful
discharge under tort theory.
-Abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress
-Fraud may be another grounds; if an employer made false promises

what is the most common exception for employment at will?

exception based on public policy

exception based on public policy

whistleblowing telling government authorities, upper-level management or media that the employers is engaged in legal activity or unsafe activity

wrongful discharge

when an employer terminates an employee for illegal or unlawful reasons

Congress has enacted several laws to regulate the ____________________________ of employees

hours and working conditions

laws enacted by congress to regulate hours and working conditions of employees include:

Davis-Baron Act
Walsh-Healey Act
FLSA

Davis-Baron Act

Requires contractors and subs working on Federal government construction projects to pay "prevailing wages".

Walsh-Healey Act

applies to U.S. government contracts. It requires that a minimum wage, as well as overtime pay at 1.5 times regular pay rates, be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government.

FLSA (Fair Labor Standards Act)

extended wage hour requirements to just about all employees
~exempt employees primary duty is management exercise discretion and independent judgement

Child Labor

FLSA prohibits the exploration of child law
Children under 14 years can work but very limited
14-15: can work except hazardous occupations
16-18: hours and working times are not restricted; no hazardous jobs
18+: no restrictions

minimum wage

a minimum amount per hour which most workers are entitled to be paid

tipped workers

tips plus wages must equal minimum wage

minimum wage State V. Federal laws

requently enact legislation that may impact federal wage and overtime laws

Layoffs

termination of employees for economic or business reasons

Worker Adjustment and Retraining Notification Act (WARN)

requires employers to provide 60 days notice before implementation of mass layoff or closing a plant.
ONLY APPLIES TO COMPANIES WITH 150+ EMPLOYEES
Properties:
-mass layoff is 1/3 of the full-time employees at the job site
-bankruptcy will NOT discharge obligations under WARN act
-fines for violations can be up to $500/day

FMLA (Family and Medical Leave Act)

-Balance work and family responsibilities
-changing demographics
-job-protected leave
-continuation of medical benefits
-many states have adopted state versions of FMLA

responsibilities of employers under FMLA

-12 wks of unpaid, job-protected leave per 12 month period
-guaranteed continuation of medical benefits during an approved FMLA leave
-job restoration upon return from approved FMLA leave
-medical certification required to substantiate need for leave

employees eligibility for FMLA

-employee for at least 12 months
-worked 1250 hours during 12 month period
-employees returning from national guard or reserve military obligation must be credited with the hours of service that would have been worked during the period of military service

FMLA qualifying reasons

- Employee's serious medical condition that prevents them for
performing the essential functions of the position.
- Birth of a child and to care for the newborn child (bonding
leave) within a year
- For placement with the employee of a child for adoption or
foster care within a year
- To care for family member (spouse, child, or parent of the
employee) with a serious qualifying health condition
- Qualifying exigency arising out of the fact the employee's
spouse, child, or parent is a covered military member active
duty. Military may qualify for up to 26 weeks of leave.

FMLA employee protections

-FMLA leave CANNOT count against the employee for attendance policy purposes
-FMLA time CANNOT be the basis for a negative performance evaluation
-FMLA time CANNOT be used as a negative factor in employment actions

Consequences of violating FMLA

-Damages for lost wages and benefits
-job reinstatement
-promotion, if employee was denied it in the past
-penalties and fines from department of labor

Do employees need to ask for FMLA leave for the employer to be held liable for a violation?

NO

Federal and State laws that are to protect employees who are injured on the job:

social security; medicare; unemployment insurance and workers comp

OSHA Act

law that protects workers in the workplace by establishing OSHA (administration agency) to establish and oversee workplace safety standards

Notices and reports of OSHA act

requires employers to post certain notices in the workplace, maintain specific records and annual reports.

inspection by OSHA act

OSHA agents may enter and inspect the facility of any establishment covered by the act

workers Compensation laws

establish an administrative procedure for compensating workers injured on the job

exception to workers comp

domestic workers; agricultural workers; temporary workers

requirements for receiving WC benefits:

-existence of employment relationship: CANNOT be IC
-accidental injury that occured on the job or in the course of employment
-COMMUNITING TO AND FROM WORK IS NOT COVERED

If an employee accepts WC benefits, can they still sue for their injuries?

NO

insurance programs designed to protect employees and their families for the financial impact associated with retirement, disability, death, hospitalization, and unemployment:

Social Security
Medicare
Tax (FICA)
private retirement plans
Federal Unemployment Tax Act (FUTA)
COBRA
Employer sponsored group health plans
affordable care act (ACA)

Social security

provides for retirement, survivor and disability insurance

Medicare

federal government health insurance plan administered by the SS administration for people 65+ or disabled individuals
-Now offers prescription drug coverage

Tax (FICA)

both employees and employers pay a payroll tax to cover SS and Medicare (through payroll deductions)

Private retirement plans

The federal Employee Retirement Income Security Act (ERISA) establishes standards for the management of employer-provided pension plans.

Federal Unemployment Tax Act (FUTA)

provides unemployment compensation to qualified employees who lose their jobs.

eligibility for FUTA

-employee must be ready and willing to work
-not terminated for cause or voluntarily resigned
-if work is turned down, lose benefits

COBRA

enables employees to continue his/her health insurance coverage after separation from the employer
employee is responsible for all employer premiums

Employer-sponsored group health plans

(HIPAA) contains provisions that affect employer-sponsored group health plans. Restricts the way employers collect, use and disclose PHI of employees and family members
FAILURE TO COMPLY: may result in civil penalties of up to $100 per violation and potential criminal prosecutions with fines up to $250K and imprisionment

Affordable Care Act (ACA)

requires employers with 50+ full time employees to offer health insurance benefits.
employers may be entitled for tax credits
Fines up to $2K for each employee after the first 30 (50/30 rule)

electronic monitioring

more than 50% employer employ some sort of monitoring
Ex. email messages, social media posts; employers may video record employees and tape phone conversations

employee privacy

private employers have some limitations under tort law and state constitutions on what they can and cannot do.
Electronic Communication Privacy Act

Electronic communication privacy act

Prohibits employers from intercepting an employee's personal electronic communication unless made on devices and systems furnished by the employer.

Lie-Detector-Employee Polygraphy Protections Act

generally prohibits employers from
requiring employees or job applicants to take one.
- Exceptions for Government employees and certain security firms

drug testing for public employers

constrained by the 4th amendment
public safety or reasonable suscpicion testing

drug testing for private employers

NOT constrained by the 4th amendment
maybe governed by state law or CBAs; company policy

reasonable expectations

courts typically hold that employees do not have an expectation of privacy when using employer's systems