LER 201 - Exam 2

Equal Employment Opportunity Commission

The equal right of all citizens to the opportunity to obtain employment regardless of their gender, age, race, country of origin, religion, or disabilities.

EEOC Charges vs. Unemployment Rate

- EEOC charges have a high relation with unemployment rates (strong)

- When unemployment rates go up, EEOC charges go up

- Poor decisions can be based on economy, but does not have to be because of discriminatory reasons

"At Will" Employment

The employer is free to dismiss any employee for any reason at all—or no reason—and the employee is equally free to quit work.

"At Will" Exception Examples:

- An individual signs a contract for a set period of time

- A union enters into a collective bargaining agreement (CBA) that only allows termination for "just cause"

- A statute prohibits termination on the basis of race discrimination

"Just Cause" Employment

misconduct of an employee, or some other event relevant to the employee, which justifies the immediate termination of the employment contract.

- Needs a reason at least

4 Ways to Rebut Presumption of "At Will" Employment:

1. An agreement for a definite duration

2. An agreement specifying that the employee will be discharged for just cause only

3. Sufficient additional consideration

4. An applicable recognized public policy exception (workers compensation or participating in Jury Duty)

"Employee" - Why does it matter?

- Taxes (Social security, Medicare, UC, WC)

- "Employment" Laws (coverage and liability)

- Vicarious Liability (employer reliable for employee)

"Employee" defined by Title 7

"an individual employed by an employer..."

Common Law Test

A widely used method for determining employee status.s

Economic Realities Test

An approach used by courts to distinguish between employees and independent contractors, particularly in the Fair Labor Standards Act (wage and hour) cases.

"Employees" Economic Realities Test

Primary Focus = Whether the person doing work is in business with self and not dependent on a particular employer to engage in this line of work:

1. Control

2. Who provides tools/ resources?

3. Risk of profit / loss?

4. Duration of working relationships?

5. Special Skill?

6. Integral to business?

7. Dependent on hiring party?

"Employee" - Common Law Test

Primary Focus = Right of control - the authority to control where, when, and how work gets done

Primary Benefit Test

Who is being benefited the most?

- Court ruling

Independent Contractors

A person doing work who is in business for herself and not dependent on a particular employer to engage in this line of work.

Right-of-control

The hiring party has the authority to control where, when, and how the work gets done, even if that party chooses not to fully exercise it authority or to delegate certain decisions to the person doing the work.

Temporary Workers

A variety of contingent worker.

Volunteer

An individual who performs hours pf service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.

Interns: DOL's 6-Factor Test (unpaid)

1. Work similar to what would be given in a vocational school/ academic educational instruction.

2. Benefit of trainees.

3. Do not displace regular employers, work under close observation.

*4. Employer derives no immediate advantage from activities of trainees (most controversial)

5. Trainee not entitled to a job at end of training period.

6. Employer/ trainee understand trainees are not entitled to wages.

Partner

Individuals who personify the business and function as principles rather than agents.

- Individual act autonomously and participates in the management of the organization

- Employee to partner

- EEOC test

- Probably not employee (have control)

Joint Employers

Employers who share in the liability for violation of an employee's rights (McDonald's franchise employees - McDonald's corporation?)

- Shared employment relationships

- Shared liability

Undocumented Workers (lost wages v. unpaid wages)

Lost Wages = fired and can't find new job (cannot collect lost wages after termination - no work)

Unpaid Wages = work for 6 months, but don't get paid (employer has incentive - don't have to pay - does work)

Agency

- Employer liable for employees acting within scope of employment.

- Sexual harassment liability borrows some agency analysis (Employer not always liable).

- Negligent entrustment (security guard wants to shoot - do not hire him).

- Scope of Employment

(Employer does not have to do anything wrong)

Scope of Employment

Actions performed by employees relating to the kind of work that they were hired to perform; taking place substantially within the workplace during work hours; and serving, at least partially, the interests of the employer.

Integrated Enterprise

Organizational entities presented as separate that might be deemed parts of a single.

Parts of Integrated Enterprise:

1. Degree of interrelation between the operations.

2. Degree to which the entities share common management.

3. Degree to which there is centralized control of human resource and labor relations.

4. Degree of common ownership or financial control over the entities.

Ex: Miles Burgers = Miles Real Estate, Miles Machinery, Miles Human Resources (companies interact solely for Miles Burgers)

Fair Labor Standards Act (FLSA)

The principal federal statute regulating wages and hours.

- Also sets out certain work-hour limitations for minors

1. Minimum Wage

2. Time-and-a-half Overtime

Minimum Wage

Under the FLSA, employers must pay employees at a rate no less than the minimum wage for each hour worked during a workweek.

- U.S. = $7.25 (sets floor)

- PA = $7.25

- Minimum wage today is lower than it was in the 1970s-1980s

Opportunity Wage (Youth Minimum Wage)

The permitted wage of $4.25/ hr to employees under 20 years of age for their first 90 calender days on the job.

- Under 20 years old

- not eliminating or reducing hours of existing employees

Tipped Employees

Employees who customarily and regularly receive at least $30 per month in tips.

- $2.13 plus tips (must meet minimum wage)

Tip Pool

- Employer cannot share in tip pool. Employer can receive his own personal tips

An arrangement whereby service providers share their tips with each other on a pre-determined basis.

Overtime Pay

Under the FLSA, employers must pay at least one and one-half times an employee's regular rate for each hour worked in excess for forty in a workweek.

- Other than for minors, the FLSA does not limit the number of hours employees can be required to work.

Regular Rate of Pay

The premium at which overtime hours of work must be compensated.

- Total compensation divided by total hours.

Work Week

Fixed and recurring period of 7 consecutive days.

Compensatory Time

Time spent in the principal work duties of an employee, during work hours or during time off and not punctuated with breaks, periods of waiting or downtime and other activities.

Generally Compensable:

- Fire drills; and rest periods of 20 minutes or less.

- Employer-required training

- Traveling between work sites.

- Waiting while on duty.

- Restrictive on-call arrangements.

- Meal periods when not substantially relieved from duties.

Generally Non-compensable:

- Pre-employment tests

- Voluntary training

- Traveling from home to work site

- Waiting to start work and waiting after being relieved from duty for a definite and useful time.

- Most on-call duty performed outside the workplace.

- Meal periods free of duties

White-Collar Exemptions

Exemptions for executive, administrative, and professional employees.

Parts of White-Collar Exemptions:

1. Executive

2. Administrative

3. Learned Professional

White Collar Exemptions Executive

- Salary of $455/ week

Primary Duty = management of enterprise, department, or sub-unit.

- Authority to hire or fire (or significant input)

- Direct the work of 2+ full-time employees

White Collar Exemptions Administrative

- Salary of $455/ week

Primary Duty = office or non-manual work directly related to the management or general business operations of an employer or the employer's customers.

- Exercises discretion and independent judgment

White Collar Exemptions Learned Professionals

- Salary of $455/week

Primary duty: Work that requires advanced knowledge, is predominantly intellectual in character, and entails the consistent exercise of discretion and judgment.

Obama wants to change exemption....

Wants to change salary of $455/ week

- Make much higher money to fall under exemptions

Salary

A pre-specified sum that an employee is paid for discharging the responsibilities associated with a position.

Salary Basis Test

Test to determine whether employees are genuinely paid on a salary basis.

- General Rule = pay set amount regardless of hours worked.

- Penalty for Violation = Losing exempt status

Pay Docking Rule

An approach of the DOL to determine whether employees are paid on salary basis.

Collective Bargaining

The institution which recognizes the value of employees banding together to deal with their employers and the fact that the desires of employees and employers sometimes clash.

Collective Bargaining Agreement (CBA)

Final Product

- Hours and wages, and terms and conditions of employment (a contract of agreement)

Management Prerogative

Decisions left to the manager/ employer without employee input.

Union Representatives

Speak for union (backing-up)

Collective Bargaining Laws:

- NLRA

- Railway Labor Act (railroads and airlines)

- Pennsylvania (and other states) - Public Employee Relations Act (PERA) - state-public employees

Supervisors

Individuals who have the authority, in the interest of the employer, to make personal decisions (hire, discharge, discipline, and promote), to responsibly direct other employees, to settle their grievances, or to effectively recommend such actions.

- Nurses? - hierarchy level-union employees/ not easy to spot supervisors.

National Labor Relations Act (NLRA)

The principal federal law concerning self-organization and collective bargaining by private sector employees.

National Labor Relations Board (NLRB)

The agency that administers the NLRA.

- Holding elections to determine whether employees desire union representation and determining whether unfair labor practices (ULPs) have been committed.

Employees Rights under the NLRA

- Self-organization

- Form, join, or assist labor organizations

- Bargain collectively through representative chosen by employees

- Strike (employees collectively decide not to work)

- Concerted activity for mutual aid and protection

- Refrain from such activities

Concerted Activity

An effort by employees to join together for "mutual aid or protection".

Strikes

The most highly publicized and dramatic manifestation of labor relations. Employees withhold their labor, refusing to resume work until their employer agrees to more favorable terms and conditions of employment or refrains from engaging in ULPs.

Partial Strike

Not protected by NLRA - cannot go on "partial" strike - strike lasts for one day; over one work day; etc.

Protected Concerted Activity

- Concerting - acting in "concert" with other employees (not just for employee's individual benefit)

- Mutual aid and support

- Addressing wages, hours, or terms and conditions of employment.

- Must not be flagrant, egregious, abusive, malicious, defamatory, or highly profane ( a little profanity here and there is probably ok)

NLRB on Social Media

- Protected concerted activity applies to social media

- Current NLRB gives a lot of leeway to employees

1. Deals with work - sales (not high-quality) - impacts pay PROTECTED.

2. Not addressing anything employment-related - abusive, malicious - making fun of customers NOT PROTECTED.

NLRA Danger Zone ("Overly Broad" Policies)

- "Pay Secrecy" Policy - can talk about pay-collective action (NLRA)

- Non-solicitation - "can't email employees about solicitation"

- "Negative Conversations"

- Non-loitering - can not show up 15 minutes early/ stay 15 minutes later

- Restricting email use

- Trespassing - non-workers coming to property for union work

Unfair Labor Practices (ULPs)

(see list on page 471-472)

- Interfering with, restraining, or coercing employees in their NLRA rights

- Discriminating based on union activity

- Employers must be careful not to create/ dominate "labor organization"

NLRA Discrimination - Prima Facie Case

1. Employee engaged in protected activity.

2. Employer was aware of protected activity.

3. Employer demonstrated hostility toward the protected activity.

4. Causal connection between hostility and decision to deny employment opportunity.

- Employer can still prevail by showing that the same decision would have been made regardless of protected activity.

Representation Election Procedures

- Typically use authorization cards (>30%)

- "Appropriate bargaining unit" shares a "community of interests"

- Similarity of skills

- Interrelationship of tasks

- Common pay systems, supervision, and personnel policies

- Anonymous voting - majority wins

Representation Election Procedures Examples:

- Neutrality Agreements

- Decertification Elections

- Voluntary Recognition

Appropriate Bargaining Unit

The group of employees for which representation is being sought.

Authorization Card

The evidence that an election is warranted. They serve as the decisive indicators of employee preference.

Decertification Elections

Provision given by NLRA, in which employees decide whether they want to continue to have union representation.

Neutrality Agreements

Agreements in which employers pledge to remain neutral and not oppose unionization.

Card-check Procedure

Entails obtaining the employer's agreement to recognize the union if a majority of employees gin authorization cards.

Exclusive Representation

Unionized employers must generally refrain from dealing with individual employees regarding their wages, hours, terms, and conditions of employment.

Union Security Provisions

Clauses that require all employees in a bargaining unit to pay union initiation fees and dues within a specified period of time ( not less than 30 days after hire) under penalty of discharge by the employer.

Good Faith Bargaining

The obligation to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," the "mutual obligation of the employer and the representative of the employees to meet at reasonable times," and the "execution of a written contract incorporating any agreement reached.

Bargaining Impasse

Employer may implement its last, best, offer.

Economic Strikes

Strikes undertaken to place pressure on an employer to offer more satisfactory terms and conditions of employment undertaken to pressure employers to meet employee negotiation demands.

- Employees placed on a preferred recall list: wait until there is an opening for job.

Unfair Labor Practie (ULP) Strikes

Strikes undertaken in response to employer ULPs (refusal to bargain in good faith) for the purpose of pressuring employers to comply with the law.

- Employee can tell replacement to leave.

- Job protected fully under NLRA.

Mediators

Neutral third parties who, by entering negotiations and exerting control over the bargaining process, help unions and employers reach their own negotiated settlements.

- Cannot enforce anything; can only make suggestions.

Arbitration

An alternative dispute resolution (ADR) procedure in which a neutral third party (arbitrator) functions more like a private judge. Arbitrators hear disputes and render decisions tat are almost always final and binding on the parties.

- Legally binding.

Grievance Procedures

Under the CBA

- Ultimately decided by arbitration (union decides whether to proceed to arbitration).

Grievances

Complaints

Binding Past Practice

Exists when a practice is clear, it has been consistently engaged in over a substantial period of time, and the practice existed with the knowledge and at least tacit consent of both the union and the employer.

Reasonable Expectation of Privacy

A key concept in workplace privacy law. Although tied more directly to privacy claims based on the Constitution, this concept is also relevant to invasion of privacy claims brought on other grounds.

Privacy: Objective

Would a reasonable person consider the area private?

Privacy: Subjective

Does the individual employee believe she has a privacy interest?

Privacy: Email

Generally no expectation of privacy.

Public Employees

- U.S. Constitution 4th Amendment prohibits "unreasonable searches/ seizures"

- Public employers generally do not need "probably cause" or warrants

- BUT public employers must be "reasonable":

1. Reasonable belief that acts will produce evidence of misconduct.

2. No-investigatory work-related reason.

Common Law Torts

- Intrusion upon Seclusion

- Public Disclosure of Private Facts

- False Light

- Appropriation of a Name or Likedness

Prima Facie Case

What the prosecution or plaintiff must be able to prove in order for the case to go to the jury that is, the elements of the prosecution's case or the plaintiff's cause of action.

Intrusion Upon Seclusion (Prima Facie Case)

1. Intentional intrusion, physical or otherwise;

2. The objects of intrusion were truly private; and

3. The intrusion would be highly offensive to a reasonable person.

Enforcing Labor Agreements

- Grievance procedures under the CBA

- Ultimately decided by arbitration (union decides whether to proceed to arbitration)

- Arbitration is generally final

- Past practice may be binding

Public Disclosure of Private Facts (Prima Facie Case)

1. A public disclosure occurred;

2. he disclosure involved facts that were truly private;

3. The disclosure would be highly offensive to a reasonable person;

4. The disclosure was intentional; and

5. The matter disclosed is not of legitimate concern to the public.

Placement in a False Light (Prima Facie Case)

1. Characteristics, conduct, or beliefs were falsely attributed to plaintiff;

2. Information broadly publicized;

3. Publisher knew or should have known it was false; and

4. Being placed in false light would be highly offensive to a reasonable person.

Appropriation of Name/ Likeness (Prima Facie Case)

"Symbolic value of one's name or likeness (e.g. prestige, recognition), which others then use for commercial gain or for other ends." - Textbook, p. 584.

Intentional Infliction of Emotional Distress ("IIED") (Prima Facie Case)

1. Intent to harm;

2. Behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in a civilized society; and

3. Severe emotional harm or distress.

Personal Records

"An employer shall, at reasonable times, upon request of an employee, permit that employee or an agent designated by the employee to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action." Pennsylvania Personnel File Act

Privacy Act

Regulates the handling of personnel records by agencies of the federal government.

Medical Records - ADA

- Current employees: Requested information must be job-related and consistent with business necessity.

- Employee's medical condition or history stored apart from other personnel records and treat it as a "confidential medical record."

- Disclosure to managers, supervisors and first aid personnel for reasons of reasonable accommodation and treatment.

Monitoring and Surveillance

- Not for monitoring "protected concerted activities" like union organizing

- Privacy concerns

Impasse

A bargain reached when negotiations over one or more mandatory topics have become deadlocked and both parties are warranted in assuming that further negotiation would be futile.

Exempt Employee

An employee for whom employers do not have to follow FLSA requirements.

Constructive Discharge

Employee resigns because conditions were so unbearable and had no choice but to resign