Ch 29: Employment and Labor Law

Historically, how were employment relationships governed?

By rules of conduct in which people stayed in the job they were born into (mostly agrarian), and their employers cared for them if they fell ill

What changed the historical employment relationship?

The Industrial Revolution changed everything; workers left farms and came to the city to work in factories; now:

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

• in the absence of a specific legal exception, this is still the rule

wrongful discharge

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

• prohibits an employer from firing a worker for certain particularly bad reasons

What is a bad reason?

one that violates public policy

Refusing to Violate the Law

As a general rule, employees may not be discharged for refusing to break the law

Exercising a Legal Right

As a general rule, 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.

Contract Law: Promises Made During the Hiring Process

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

Contract Law: Employee Handbooks

an employee handbook creates a contract

Contract Law: 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: Defamation

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

qualified privilege

Employees 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 privileges for employers who give references about former employees

What about risky workers? Do employers have an obligation to warn about them in references?

Generally, courts have held that employers do not have a legal obligation to disclose information about former employees. But, in this case of violence, courts are divided.

Tort Law: Workplace Bullying

California law requires employers to conduct training in how to prevent abusive conduct. So, far, however, courts and legislatures have generally been reluctant to consider bullying a violation of public policy

If the behavior is particularly extreme and outrageous, employers may face liability under the tort of intentional infliction of emotional distress.

intentional infliction of emotional distress

An intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm

Family and Medical Leave Act (FMLA)

It guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or a serious health condition of their own or in their immediate family.

What are some examples of what counts as a “serious health condition” under the FMLA?

• Any health issue that requires hospitalization

• A condition that requires more than one visit to a healthcare provider; the visits may be spread out over as long as a year

• A condition that requires only one visit to a healthcare provider but also requires a course of treatment such as physical therapy or prescription medication

whistleblowers

Someone who discloses wrongdoing

In what situations are whistleblowers protected?

• The False Claims Act: a statute that permits lawsuits against anyone who defrauds the government

• Sarbanes-Oxley Act of 2002: protects employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company)

• The Dodd-Frank Wall Street Reform and Consumer Protection Act: anyone who provides information to the government about violations of securities or commodities laws is entitled to a payout of from 10 to 30 percent of whatever award the government receives, provided that the award tops $1 million

• Constitutional protection for government employees: employees of federal, state, and local governments have a right to free speech under the U.S. Constitution, therefore, the government cannot retaliate against public employees who blow the whistle if the employee is speaking out on a matter of public concern

• Statutory protection for federal employees: the Civil Service Reform Act and the Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing and permit the award of back pay and attorney’s fee to the whistleblower

• State laws: most courts prohibit the discharge of employees who report illegal activity

The False Claims Act

a statute that permits lawsuits against anyone who defrauds the government

Sarbanes-Oxley Act of 2002

protects employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company)

The Dodd-Frank Wall Street Reform and Consumer Protection Act

anyone who provides information to the government about violations of securities or commodities laws is entitled to a payout of from 10 to 30 percent of whatever award the government receives, provided that the award tops $1 million

Constitutional protection for government employees

employees of federal, state, and local governments have a right to free speech under the U.S. Constitution, therefore, the government cannot retaliate against public employees who blow the whistle if the employee is speaking out on a matter of public concern

Statutory protection for federal employees

the Civil Service Reform Act and the Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing and permit the award of back pay and attorney’s fee to the whistleblower

State laws

most courts prohibit the discharge of employees who report illegal activity

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

Lifestyle Laws

A few states, such as California, have passed lifestyle laws that protect the right of employees to engage in any lawful activity or use any lawful product when off duty.

Smoking

In roughly 60 percent of the states, however, employers cannot prohibit workers from smoking

Alcohol and Drug Use: Private Employers

Under federal law, private employers are permitted to test job applicants and workers for alcohol and illegal drugs.

Equal Employment Opportunity Commission (EEOC)

the federal agency charged with enforcing federal employment laws, prohibits testing for prescription drugs unless a worker seems impaired

Government Employers

May test public safety workers

The National Labor Relations Act (NLRA)

the NLRA protects all employees:

1. who engage in collective activity

2. relating to work conditions and

3. who are not supervisors

• even non-unionized workers 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

Social Media Policies

policies violate the NLRA if they unreasonably limit employee speech about work conditions

• note, however that to be protected, the employee speech must be “concerted”

Privacy on Social Media

The SCA prohibits unauthorized access, but the employer may monitor workers’ electronic communications for work if:

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

Employee Polygraph Protection Act of 1988

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

• an employee who is part of an ongoing investigation

• an applicant applying for a government job

• an application for a job in public transport, security, banking, or at pharmaceutical firms dealing with controlled substances

Occupational Safety and Health Act (OSHA)

Under OSHA:

• Employers must comply with specific health and safety standards

• Employers must keep the workplace free from recognized hazards

• Employers must keep records of all workplace injuries and accidents

• OSHA may inspect workplaces to ensure safety

Are employers liable when hackers steal an employee’s personal data?

It is reasonable for employers to store sensitive employee data electronically, even knowing that some of it will be inevitably stolen

Guns

Employers have the right to prohibit guns in the workplace but, in almost half the states

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

Fair Labor Standards Act (FLSA)

Passed in 1983, this act regulates wages and limits child labor nationally

• also prohibits “oppressive child labor”

• It 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

What does “oppressive child labor” mean according to the FLSA?

means that children under 14 may work only in agriculture, entertainments family business, babysitting, or newspaper delivery

What hours and jobs are 14 and 15 year olds permitted to work?

limited hours after school in nonhazardous jobs, such as retail

What hours and jobs are 16 and 17 year olds permitted to work?

unlimited hours in non hazardous jobs

Worker’s Compensation

Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work

How did employers frequently win injury cases before workers’ compensation was available?

Employers frequently won anyway by claiming that:

1. the injured worker was contributorily negligent,

2. a fellow employee had caused the accident, or

3. the injured worker had assumed the risk of injury

Health Insurance: Consolidated Omnibus Budget Reconciliation Act (COBRA)

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

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

Social Security

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

Federal Unemployment Tax Act (FUTA)

a worker who quits voluntarily or is fired for just cause is ineligible for unemployment benefits

Pension Benefits: Employee Retirement Income Security Act (ERISA)

Congress passed this act in 1974 to protect workers covered by private pension plans

Norris-LaGuardia Act

prohibits federal court injunctions in nonviolent labor disputes

National Labor Relations Act (NLRA or Wagner Act)

ensures the rights of workers to form unions and encourages management and unions to bargain doll and productively

What rights does Section 75 of the NLRA guarantee for employees?

• organize and join unions,

• bargain collectively through representatives of their own choosing

• engage in other concerted activities

According to the NLRA, what rights are not guaranteed for supervisors?

they are not employees and do not have the right to join a union

supervisor

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

Section 8 of the NLRA prohibits employers from engaging in what following unfair labor practices (ULPS)?

• Interfering with union organizing efforts

• Dominating or interfering with any union,

• Discriminating against a union member, and

• Refusing to bargain collectively with a union

Section 8 of NLRA prohibits unions from engaging in what ULPS?

• Interfering with employees who are exercising their labor rights,

• Causing an employer to discriminate against workers as a means to strengthen the union, and

• Charging excessive dues.

What did the NLRA establish to administer and interpret the statute and to adjudicate labor cases?

the National Labor Relations Board (NLRB)

What are the major reasons for the decline? — in the 1950s, 25% of workers belonged to a union; today, only 11% do

• more states have passed right-to-work laws that permit employees in unionized workplaces to opt out of joining the union or paying dues

• some large employers (such as Boeing) have relocated to states with little union presence

• The number of manufacturing workers has declined

• Employment is increasing in industries, such as services, that have not traditionally been unionized

Organizing a Union: Exclusivity

Under Section 9 of the NLRA, a validly recognized union is the exclusive representative of the employees

What is the Organizing Process of a Union?

1. Campaign

2. Authorization Cards

3. Petition

4. Election

collective bargaining agreement (CBA)

A contract between a union and a company

The NLRA permits the parties to bargain almost any subject they wish, but it requires them to what?

it requires them to bargain wages, hours, and other terms and conditions of employment

The union and employer are ________ , but they are required to __________.

not obligated to reach an agreement; bargain in good faith

concerted action

Tactics taken by union members to gain bargaining advantage

What rights regarding concerted action does the NLRA guarantee for employees?

It guarantees the right of employees to engage in concerted action for mutual aid or protection.

Concerted Action: Strikes

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

no-strike clause

A clause in a CBA that prohibits the union from striking while the CBA is in force

Concerted Action: Cooling-Off Period

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

Concerted Action: 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.

Strikes: Partial Strikes

A union may either walk off the job or stay on it, but it may not alternate

Strikes: Replacement Workers

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

economic strike

One intended to gain wages or benefits

Who may an employer hire during an economic strike?

permanent replacement workers

After an unfair labor practices (ULP) strike, union members are entitled to what?

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

Picketing

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

secondary boycott

A picket line established not at the employers’s premises but at a different workplace.

• are generally illegal

lockout

Management prohibits workers from entering the premises.

• most lockouts are legal