MGMT 445 Final

Ch 11, 13, 14. 20, 22

Civil Rights Act

Added the right to sue for compensatory and punitive damages for intentional violations of Title VII and the ADA

• Applies to all employers with 15 or more employees

Executive Order No. 11246:

• Firms doing business with the federal

  government must agree not to discriminate in

  employment on the basis of race, color, religion,

  national origin, or gender

• Provides the basis for the federal government

  contract compliance program

Contract Compliance Program

Regulations which provide that all firms having federal government contracts or subcontracts exceeding $10,000 must include a no-discrimination clause in the contract

• Clause is binding on the firm for the duration of the contract

• Requires the contractor to agree not to discriminate in employment on the basis of race, color, religion, gender, or national origin

• The contracting firm is also required to include the same type of no-discrimination clause in every subcontract or purchase order pursuant to the federal contract

Penalties for violation:

• Suspension or cancellation of the firm’s government contract

• Ineligibility of the firm from future government contracts

Affirmative action plans

Programs which involve giving preference in hiring or promotion to qualified female or minority employees (these are programs through regulations of the Office of Federal Contract Compliance Programs (OFCCP)

• Firms with contracts of services or supply for over $50,000 and having fifty or more employees are required to maintain formal written programs for the utilization of women and minorities in their work force

• Affirmative action plans must be updated annually

• Firms must submit annual reports of the results of their efforts to meet the goals set out in the affirmative action plan

• Firms holding federal or federally assisted construction contracts or subcontracts over $10,000 are also subject to affirmative action requirements

• The contracting firm must comply with the goals and timetables for employment of women and minorities set periodically by the OFCCP

Procedure Under Executive Order No. 11246

1. Individuals alleging a violation of a firm’s obligations under Executive Order No. 11246 may file complaints with the OFCCP within 180 days of the alleged violation

   • OFCCP may refer the complaint to the EEOC for investigation, or it may make its own investigation

2. If there is reason to believe that a violation has occurred, the firm is issued a show-cause notice

   • Firm has thirty days to provide evidence

   • Within this period, OFCCP is required to make efforts to resolve the violation through mediation and conciliation

3. If the firm fails to show cause, the director of the OFCCP may refer the complaint to:

   • Secretary of Labor for administrative proceedings

   • Department of Justice for judicial proceedings

4. Firms found to be in violation of the obligations under the Executive Order:

   • May be subject to injunctions and required to provide back pay and grant retroactive seniority to affected employees

   • May have its government contract suspended or canceled and may be declared ineligible for future government contracts

Uniformed Services Employment and Reemployment Rights Act

Prohibits employers from discriminating against employees because of their service in the military

• *Applies only to non career military service (i.e. to employees who are called to active duty from their civilian jobs)

• Covers both private and public sector employees

• Replaced the Veterans’ Reemployment Rights Act

Notice of Reemployment Requirements:

• Employees absent from employment due to ordered active military duty are entitled to reinstatement and benefits if they meet the following:

  • Employee gave notice of the period of military service.

  • Employee is absent for a cumulative of less than five years.

  • Employee submitted an application for reemployment within the designated time.

• Employers are not required to reinstate employees after military service if:

  • Employer’s circumstances have changed so that reemployment would be unreasonable or impossible, or

  • The reemployment would cause undue hardship in accommodation, training, or effort, or

  • The initial employment was for a brief, nonrecurring period

• Employer has the burden of proving that the reemployment denial was permissible.

• Persons with alleged violations must file written complaints with the Secretary of Labor.

• Remedies for violations include ordering the employer’s compliance, lost wages, benefits, and legal fees.

Fifth amendment

due process and equal protection

• Applies to the federal government

Fourteenth amendment

applies the 5th amendment to state and local governments

Suspect class

a basis of discrimination, classification, or differential treatment such as race, color, gender, religion or national origin by government action, for which there is little legitimate justification for treating persons because of such characteristics

• Actions against a suspect class will receive strict scrutiny by the court to find a compelling state interest

Strict scrutiny test

A constitutional analysis used by courts hearing equal protection claims involving governmental discrimination based on a “suspect class.

• This test requires the government to demonstrate that the discriminatory treatment was necessary to achieve a compelling government purpose and that the governmental action was “narrowly tailored” to achieve the compelling purpose

• It must also show that it did not unduly harm those who were not given the preferential treatment

• Remedial affirmative action programs, adopted to remedy illegal discrimination, have generally been held to be constitutional

Nonsuspect class

A basis of discrimination, classification, or differential by government action which is neutral with regard to race, color, gender, religion or national origin, and which is related to related to legitimate government interests

• The court will consider whether the discriminatory classification bears a reasonable relationship to a valid state interest (this is an easier test to meet compared to strict scrutiny.)

• The classification of applicants on the basis of veteran status was reasonably necessary for the valid government objective of rewarding veterans for the sacrifices of military service

Sarbanes Oxley Act

imposes both civil and criminal penalties for employers who take adverse employment actions against whistleblowers

• The legislation applies to corporations whose shares are publicly traded in the U.S.

Criminal records

Refusing to hire applicants because of their arrest records (as opposed to convictions) may be in violation of Title VII (as it may be a disparate impact discrimination under Title VII)

• However federal EEO laws do not specifically prohibit employment discrimination based on criminal record

Employee Polygraph Protection Act

severely restricts the right of private employers to require employees to take polygraph, or “lie detector,” tests

• Does NOT apply to public sector employees

Applies to private sector employees unless they have:

• Private employees who are working for contractors or consultants on Federal National Security

• Employees provide private security, armored car, or install & maintain security alarm systems

• Employees who manufacture or distribute controlled (drug) substances

• Employers who reasonably suspect employees are involved in economic loss incident (theft), may request the employee to take a polygraph test.

EMPLOYERS ARE PROHIBITED FROM DISCIPLINING OR DISCHARGING ANY EMPLOYEES WHO REFUSE THE POLYGRAPH TEST

Cummings v Washington Mutual

Employers can request that an employee take a polygraph test on 4 conditions:

1. The test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business . . .

2. The employee had access to the property that is the subject of the investigation

3. The employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and

4. The employer executes a statement, provided to the examinee before the test, that is signed and that describes with particularity the employee’s alleged misconduct and the basis for the employer’s reasonable suspicion.

Honesty tests

Employment tests used by employers as a screening device to evaluate employees or applicants on various workplace behaviors such as truthfulness, perceptions about employee theft, admissions of theft, and drug use

• Some employers have turned to other honesty tests including psychological profile testing.

McCavitt v Swiss Reinsurance America Corporation

The court of appeals held that dating a co-worker was not protected as a “recreational activity”.

Coats v Dish Network

The Supreme Court of Colorado held that:

1. An activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under lawful activities statute, and

2. The employee could be terminated for his use of medical marijuana in accordance with the Medical Marijuana Amendment of the state constitution.

National Labor Relations Act

entitles employees to bargain collectively through representatives of their own choosing

• The position of the union as exclusive bargaining agent supersedes any individual contracts of employment made between the employer and the unit employees

• Dealings with individual unit employees must be in accordance with the collective bargaining agreement

• The Taft-Hartley Act added some protection for minority factions within bargaining units

Secret ballot election

The most common method of determining the employees’ choice of a bargaining representative

• Requires only that the union, in order to become the exclusive bargaining agent, be designated or selected by a majority of the employees in the bargaining unit

Voluntary recognition

An employer agreeing to recognize a union with majority support as the exclusive bargaining agent for the workers in the bargaining unit, without holding a certification election

• Bargaining status achieved through a voluntary recognition imposes on the employer the duty to bargain with the union in good faith

Authorization cards

Cards signed by employees indicating that they authorize the union to act as the employees’ bargaining agent and to seek an election on behalf of the employees.

• These cards may simply state that the signatories desire an election to be held, or they may state that the signing employee authorizes the union to be his or her bargaining representative.

• At least 30% of the employee group must support the election request

Contract bar rule

A written labor contract bars an election during the life of the bargaining agreement, subject to the “open-season” exception

Exception:

• The Board provides a window, or “open season,” during which a rival union can offer its challenge by filing an election petition

• A contract for longer than 3 years will operate only as a bar to an election for 3 years

Bargaining unit

group of employees being represented by a union

• Should encompass all employees who share a community of interests regarding working conditions

Baragining units for acute-care hospitals

• Physicians

• Registered nurses

• Other professional employees

• Medical technicians

• Skilled maintenance workers

• Clerical workers

• Guards

• Other nonprofessional employees

Eligibility date

Date by which an employee must be on the employer’s payroll in order to be eligible to vote

• Employees hired after the eligibility date but before the election date are not eligible to vote

• Employees must be on the payroll as of the eligibility date, and they must also continue to be on the payroll on the date the election is held

• The eligibility date is usually the end of the payroll period immediately preceding the direction of the election

Unfair labor practice strike

A strike to protest employer unfair practices

• The Board holds that unfair labor practice strikers cannot be permanently replaced by the employer

• Unfair labor practice strikers are eligible to vote in any election held during the strike

Economic strike

A strike over economic issues such as a new contract or a grievance

• Economic strikers may be permanently replaced by the employer

• Economic strikers who have not been permanently replaced may vote in any election during the strike, but economic strikers who have been permanently replaced may vote only in elections held within 12 months after the strike begins

• Strikers fired for wrongdoing during the strike are not eligible to vote

Excelsior list

A list of the names and addresses of the employees eligible to vote in a representation election

Decertification petition

Petition stating that a current bargaining representative no longer has the support of a majority of the employees in the bargaining unit

• The Board also requires the showing of 30 percent employee interest in support of a decertification petition to entertain it

• An employer is not permitted to file a decertification petition

Union shop clause

Clause in an agreement requiring all present and future members of a bargaining unit to be union members

Deauthorization election

election to rescind the union shop clause in a collective agreement

Employer unfair labor practices

Section 8(a) of the NLRA: makes it illegal for an employer to engage in the following conduct:

• Interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7

• Dominate, interfere with, or contribute financial or other support to a labor organization

• Discriminate in the hiring or terms or conditions of employment of employees in order to encourage or discourage membership in any labor organization

• Discharge or discriminate against an employee for filing charges or giving testimony under the NLRA

Union unfair labor practices

Section 8(b) of the NRLA: makes it illegal for unions to engage in the following conduct:

• Restrain or coerce employees in the exercise of their rights under Section 7, or restrain or coerce an employer in the selection of a representative for collective bargaining purposes

• Cause or attempt to cause an employer to discriminate against an employee in terms or conditions of employment in order to encourage (or discourage) union membership

• Refuse to bargain collectively with an employer

• Engage in secondary picketing or encourage secondary boycotts of certain employers

• Require employees to pay excessive or discriminatory union dues or membership fees

• Cause an employer to pay for services that are not performed; and

• Picket an employer in order to force the employer to recognize the union as bargaining agent when the union is not entitled to recognition under the act

Section 7 (NLRA)

rights of employees covered by the NLRA (employees do not need to be union members to enjoy such rights)

Protected activity:

• Concerted activity (intended to benefit a group)

  • It is for collective bargaining or mutual aid and protection purposes

  • It is not illegal, destructive, or unreasonable

• Interference with, coercion, or restraint of employees in the exercise of their Section 7 rights by employers or unions is prohibited by Section 8(a)(1) and Section 8(b)(1), respectively

• The NLRB has held that any conduct that has the natural tendency to restrain or coerce employees in the exercise of their Section 7 rights is a violation

• Intention is not a requirement for a violation of Sections 8(a)(1) and 8(b)(1)

NLRB v City Disposal System

Issue: Whether Brown’s reasonable assertion of his right to be free of the obligation to drive unsafe trucks constituted concerted activity within the meaning of Section 7 of the NLRA

Decision: The Supreme Court accepted the Board’s conclusion that James Brown was engaged in concerted activity when he refused to drive a truck. Therefore, it reversed the judgment of the Court of Appeals and remanded the case for further proceedings.

Antiunion remarks

The expressing of any views, argument or opinion…shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit

Lechmere Inc v NLRB

Issue: Whether Lechmere’s refusal to allow non-employee union organizers onto its property to attempt to organize the store’s employees an unfair labor practice.

Decision: The U.S. Supreme court held it was an unfair labor practice as under certain circumstances the employer may be required to allow union organizers access to its property when there are no other reasonable alternative means of access available.

Reasonable restrictions

An employer may place only “reasonable restrictions” on the soliciting activities of employees

• Employer rules limiting soliciting activities must have a valid workplace purpose, such as ensuring worker safety or maintaining the efficient operation of the business, and must be applied uniformly to all soliciting, not just to union activities

• Employee soliciting activity may be limited to nonworking areas such as cafeterias, restrooms, or parking lots

• Employers have the right to restrict the use of company bulletin boards and telephones during working time and company email systems, but the employer may not enforce such rules in a discriminatory manner to exclude or restrict union activities

Individual arbitration agreements

The NLRB found that by requiring only individual arbitration of employment-related claims and excluding access to any forum for collective claims, the employer interfered with employees’ Section 7 right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

• However, employers may require employees to agree to individual arbitration of workplace grievances as a condition of employment.

Weingarten rights

Are the right of employees to have a representative of their choice present at meetings that may result in disciplinary action against the employees (Ex: When questioning on theft)

• For employees to exercise Weingarten rights the employee must actually request the presence of a representative

• An employer who violates an employee’s Weingarten rights is not prevented from disciplining the employee, provided that the employer has independent evidence, not resulting from the “tainted” interview, to justify the discipline

Union coercion of employers and employees

1. The courts have allowed unions to fine members who refused to go on strike

1. Employers are protected from union coercion in their choice of a representative for purposes of collective bargaining or the adjustment of grievances

Whipsaw strikes

strikes in which the union selectively strikes in just one firm in the industry

USF Red Star

a union’s efforts to get the employer to discharge an employee because of his internal union activities violated both sections 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act.

In house unions

Unions created and controlled by the employer (prohibited under Section 8)

Remedies for employer domination of labor unions:

1. cease recognizing the union

2. to cancel any agreements reached with the union

3. to cease giving support or assistance to the union

4. to disband an in-house or captive union

Electromation Inc v NLRB

Issue: Whether employer-created “employee action committees” were employer dominated or controlled labor organizations in violation of Section 8(a) (2) of the NLRA

Decision: The court concluded the NLRB Board’s finding of unlawful employer domination and interference by employer’s establishment and administration of “action committees” violated of Section 8(a) (2) and (1) of the National Labor Relations Act (Unlawful employer domination and interference) was correct, and affirmed the Board’s findings and enforced the Board’s order.

Employment discrimination

Under Section 8(a)(3) of the NLRA, employers are forbidden to discriminate “in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization”

• When an employer is charged under NLRA Section 8 a 3 for refusing to hire an applicant whom the employer suspects to be a union organizer, the employer can defend its decision by raising a reasonable question as to the applicant’s actual interest in working for the employer.

Union security agreement

Contract provisions requiring employees to join the union or pay union dues

Union shop agreement

Agreement requiring employees to join the union after a certain period of time

Agency shop agreement

Agreement requiring employees to pay union dues, but not requiring them to join the union

Right to work laws

Laws which prohibit union security agreements (in states with these laws, union shop and agency shop agreements are illegal.)

Hiring hall

A job-referral mechanism operated by unions whereby unions refer members to prospective employers

This is legal as long as:

• The union must not discriminate on grounds of union membership for job referrals.

• The employer may reject any applicant referred by the union.

• A notice of the nondiscriminatory operation of the referral service must be posted in the hiring hall.

Lockout

An employer’s temporary withdrawal of employment to pressure employees to agree to the employer’s bargaining proposals

• Employers are free to withdraw employment from employees to pressure them to accept the employer’s demands

• When the threat of a “quickie strike” or unannounced walkout poses the prospect of damage to equipment or disruption of business, the employer may lock out the employees to avoid such problems

Plant closing to avoid unionization

The Supreme Court has held that a total shutdown of a business, even if done for antiunion motivation, is not an unfair labor practice, but that a partial shutdown, done with the intent to deter workers from forming a union, was a violation of Section 8(a)(3)

Runaway shop

Situation in which an employer closes in one location and opens in another to avoid unionization

• As remedy for a runaway shop, the Board will order that the offending employer offer the old employees positions at the new location

OSH Act

Employers shall meet the various health and safety standards set under this act and keep records of injuries, deaths, accidents, illnesses, and particular hazards

• Applies to all employees who work for an employer that is engaged in a business affecting interstate commerce

Goals:

• Assure safe and healthful working conditions for men and women

• Provide a framework for research, education, training, and information in occupational safety and health

Does not cover:

• The federal and state governments in their capacity as employers

• Domestic servants

• Self-employed persons

• The OSH Act contains no specific industry-wide exemptions

OSHA

an agency created for enforcement of the OSH Act.

1. Able to issue citations and recommend penalties for violations

2. Employers are expected to investigate safety or health complaints, and failure to do so is a violation of the OSH Act.

• Secretary of Labor has authority to promulgate standards for safety & heath by the OSH Act through the Occupational Safety and Health Administration

NIOSH (National Institute of Occupational Safety and Health)

an agency created to cater to & conduct research, as well as to promote the application of the research results regarding work experience

OSHRC (Occupational Safety and Health Review Commission)

a quasi-judicial agency created to adjudicate contested enforcement actions of OSHA

• The OSHRC adjudicates contested enforcement actions of the Occupational Safety and Health Administration.

• Has 3 members appointed by the President for 6 year terms

• Able to actually enforce penalties recommended by OSHA

Interim standards

Standards that the Secretary of Labor had power to issue for the first 2 years following the effective date of the OSH act

Permanent standards

Include both newly created standards and revised interim standards

• Developed by OSHA and NIOSH

Emergency standards

issued when the Secretary believes that employees are exposed to grave dangers from substances or agents determined to be toxic or physically harmful

• Take effect immediately upon publication in the Federal Register, and a new permanent standard reflecting the emergency standard must be issued within six months after its publication as an emergency standard.

Appeals of Standards (OSH Act)

Any person affected adversely by a standard can appeal the standard before the sixtieth day after the issuance of the standard.

• Upon reviewing the standard, the court of appeals will uphold the standard if it is supported by substantial evidence

Feasibility

The feasibility of an OSHA standard must be examined from two perspectives:

• Technological feasibility

• Economic feasibility

Burden of proof

The Secretary must carry the burden of proving both technological and economic feasibility when promulgating and enforcing standards governing toxic materials and harmful physical agents

• The Secretary bears the burden of proving by “substantial evidence on the record considered as a whole” that the cited employer violated the act

Temporary vairances

are granted when the employer is unable to comply with a standard by its effective date because of the unavailability of

• Professional or technological personnel

• Materials or equipment necessary to come into compliance

Permanent variances

are granted when the employer establishes by a preponderance of the evidence that its particular procedures provide as safe and healthful a workplace as the OSHA standard would provide

Employee rights (OSH Act)

Protects employees from retaliation or discrimination because they refuse to work in the face of a dangerous condition, or because of a safety reason.

Can be exercised (even without an OSHA inspection or written citation) when:

• Under OSHA, employees should first attempt to have the employer correct the hazardous condition before exercising their right to refuse to perform the work.

• Employees are exposed to a dangerous condition posing the risk of serious injury or death and

• There is insufficient time, due to the nature of the hazard, to resort to the regular statutory procedures for enforcement

Note: If OSHA issues a written citation, employees are potentially protected under the provision of their right to refuse to work.

Priority of Inspections

1. Investigation of complaints of imminent danger

2. Investigation of fatal and catastrophic accidents

3. Investigation of complaints filed by employees alleging hazardous working conditions

4. Investigation of high-hazard industries

5. Random general investigations

Reporting and Recordkeeping

Employers with 8 or more employees are required to keep records of and to make periodic reports to OSHA on occupational injuries and illnesses

• The employer is required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents required to be monitored

Inspections

1. The compliance officer conducting the inspection may enter without delay and at reasonable times any factory, business establishment, construction site, or workplace covered by the act

2. The officer also has the authority to question privately any employer, owner, operator, agent, or employee

3. The act allows the employer and a representative authorized by the employees to accompany the inspector during the physical inspection of the work site

Marshall v Barlow

If the employer refuses entry or forbids the continuation of an inspection the compliance office must terminate the inspection or confine it to those areas where no objection has been raised; following such a refusal, an exparte application for an inspection warrant can be obtained from either a U.S. District judge or a U.S. magistrate

Citations

Written citation:

• The employer must be notified by certified mail within a reasonable time (no longer than 6 months after the violation)

• The citation must set a reasonable time for the abatement of the violation (usually not to exceed 30 days)

  • The employees or representatives of the employees may file a notice challenging the period of time set in the citation for the abatement

• The citation must be prominently posted at or near each place the violation occurred

De minimis violation:

• A technical violation, but so insignificant as to require no fine or remediation

Appeal (OSH Act)

The employer may appeal the (any) citation and/or proposed penalty under the OSH Act

• When an OSHA citation and proposed penalty are contested, the employer has an absolute defense to the citation if it can prove that compliance the standard is impossible (but it does NOT matter if it is difficult or impractical. )

• If the employer has made a good-faith effort to comply with the abatement requirements of the initial citation but has been unable to because of factors beyond the reasonable control of the employer, a petition for modification of abatement can be filed. HOWEVER, IF OSHA OR EMPLOYEE OBJECTS TO A REQUESTED EXTENSION OR MODIFICATION, A HEARING IS HELD BEFORE THE OCCUPATIONAL SAFETY & HEALTH COMMISSION.

Penalities (OSH Act)

1. If the employer fails to correct a cited violation after it has become final, a fine may be imposed of not more than $1,000 per day

2. If the violation is found to be willful, a repeat violation, or results in the death of an employee, OSHA can impose fines of up to $70,000

3. Criminal penalties of up to 6 months imprisonment are allowed, with a maximum increased to 12 months for a repeat violations

Fair labor standards act

purposes of this act was to enforce:

• Minimum wages federal = $7.25)

• Overtime pay provisions

• Eleiminate unethical child labor

• Equal pay for equal work

Coverage:

1. Employees who are engaged in interstate commerce, including both import and export

2. Employees who are engaged in the production of goods for interstate commerce

3. Employees employed in an “enterprise engaged in” interstate commerce

Davis Bacon Act

provides that contractors working on government construction projects must pay the prevailing wage rates in the geographic area, as determined by the Secretary of Labor

National Industrial Recovery Act

provides for the development of “codes of fair competition” for various industries with the trade associations developing the rules, it would then be signed by the President. This was ruled unconstitutional!

Walsh Healy Act

sets minimum standards for wages for contractors providing at least $10,000 worth of goods to the federal government

Terry v Sapphire Gentlemen’s Club

Issue: Are the performers at Sapphire Gentlemen’s Club employees within the meaning of the state minimum wage laws and thus entitled to the minimum wages guaranteed by state and federal law?

Decision: Sapphire qualified as an employer under the state legislation, and the performers therefore qualified as employees under the law. In so holding, the court noted that its decision was in accord with the great weight of authority, which has almost “without exception ... found an employment relationship and required ... nightclub[s] to pay [their] dancers a minimum wage.”

Overtime pay

One-and-a-half times an employees’ regular pay rate

Exempt Employees (from FLSA voertime and minimum wage laws)

1. Executives

2. Administrators

3. Professionals

4. Outside salespeople

5. Computer related occupations

6. Highly compensated employees

   1. receives total annual compensation of at least the annualized earnings amount of the 90th percentile of full-time nonhourly workers nationally

   2. The employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee

7. Teachers

8. Unpaid interns

Child Labor (FLSA)

The FLSA does not prohibit all child labor; rather it proscribes only “oppressive” child labor

Permitted child labor:

• Minors aged sixteen to eighteen may work in certain non-hazardous occupations

• Minors aged fourteen to sixteen may be employed in non-manufacturing or non-mining occupations for limited hours outside school hours

• Minors under age 14 may be employed only in agriculture under specific limitations, and with parental consent.