Chapter 15: Employment, Immigration, and Labor Law

BLAW Exam #3

Why Does Employment, Immigration, and Labor Law Matter to Me?

Numerous statutes and administrative agency regulations govern the workplace. Because of the sometimes harsh effects of the employment-at-will doctrine for employees, the courts have carved out various exceptions to it. These exceptions are based on contract theory, tort theory, and public policy.

Employment at Will

Employment at will: a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless it would violate a contract or statute.

Exceptions to the employment-at-will doctrine

• Exceptions based on contract theory

• Exceptions based on tort theory

Exceptions Based on Public Policy

• Whistleblowing: an employee’s disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities.

Wrongful Discharge

• An employer’s termination of an employee’s employment in violation of the law, or an employment contract.

Wages, Hours, and Leave

Laws Regulating the Wages and Working Hours of Employees

1. Davis-Bacon Act

2. Walsh-Healey Act

3. Fair Labor Standards Act (FLSA)

Fair Labor Standards Act (FLSA)

Child labor

– Restrictions on child labor differ by age group.

• Minimum wage requirement

– The FLSA provides that a minimum wage of $7.25 per hour must be paid to covered, nonexempt employees.

–Tipped workers

–Tip-sharing systems

• Overtime Provisions and Exemptions

• Layoffs

Family and Medical Leave

Coverage and Applicability

1. To care for a newborn baby within one year of birth.

2. To care for an adopted or foster child within one year of the time the child is placed with the employee.

3. To care for the employee’s spouse, child, or parent who has a serious health condition.

4. If the employee suffers from a serious health condition.

5. Exigencies arriving from a family member being on active military duty.

Benefits and Protections 

• Employer must continue a worker’s health care coverage when they take FMLA leave under the same terms as if the employee has continued to work.

Violations

1. Damages to compensate an employee for lost benefits, denied compensation, and actual monetary losses up to an amount equivalent to the employee’s wages for twelve weeks. Can even get job reinstatement.

2. Promotion, if a promotion has been denied.

Health, Safety, Income Security, and Privacy

• The Occupational Safety and Health Act

– The act imposes on employers a general duty to keep workplaces safe.

– Notices, records, and reports

• Employers must post certain notices in the workplace, maintain specific records, and submit reports.

– Inspections and employee complaints

State Workers’ Compensation Laws

All states require employers to provide workers’ compensation insurance, but the specific rules vary by state.

Requirements for receiving workers’ compensation

1. The existence of an employment relationship.

2. An accidental injury that occurred on the job, or in the course of employment, regardless of fault.

Workers’ compensation versus litigation

Workers’ Compensation Laws: State statutes that establish an administrative process for compensating workers for injuries that arise in the course of their employment, regardless of fault.

Income Security

• Social security

• Medicare

• Tax contributions

• Private retirement plans

• Unemployment insurance

• COBRA

• Employer-sponsored group health plans

• Affordable Care Act

Employee Privacy Rights

• Electronic monitoring

– More than half of employers engage in some form of surveillance of their employees.

• Employee privacy protection

• Reasonable expectation of privacy

• Other types of monitoring

– Lie-detector tests

– Drug testing

• Government (public) employers are constrained in drug testing by the Fourth Amendment to the U.S. Constitution. The Fourth Amendment does not apply to drug testing conducted by private employers.

Immigration Law 

Immigration Reform and Control Act (IRCA)

• I-9 Employment verification

– It is the process of verifying the employment eligibility and identity of a new worker.

• Documentation requirements

• Enforcement

– U.S. Immigration and Customs Enforcement (ICE) has a general inspection program that conducts random compliance audits.

• Penalties

The Immigration Act

• I-551 Permanent resident card

– “Green card” to legally work in the U.S.

• The H-1B Visa program

– To get a H-1B visa, a potential employee must be qualified in a specialty occupation

• H-2, O, L, and E Visas

– H-2: Agricultural labor

– O: Extraordinary ability in the sciences, arts, education, business, or athletics

– L: Foreign managers or executives

– E: Certain foreign investors and entrepreneurs

Federal Labor Laws

• Norris-LaGuardia Act

• National Labor Relations Act (NLRA)

– This act gave employees the right to engage in collective bargaining and to strike.

– Unfair labor practices

1. Interference with efforts of employees to form, join, or assist labor organizations, or engage in concerted activities for mutual aid or protection.

2. An employer’s domination of a labor organization, or contribution of financial, or other support to it.

3. Discrimination in hiring or awarding tenure based on union affiliation.

4. Discrimination against employees for filing charges under the act, or giving testimony under the act.

5. Refusal to bargain collectively with the duly designated representative of the employees.

– The National Labor Relations Board

– Good faith bargaining

– Workers protected by the NLRA

• Labor-Management Relations Act

– The LMRA (or Taft-Hartley Act) banned certain unfair union practices (such as the closed shop), but preserved the legality of the union shop.

– The act also allowed individual states to pass their own right-to-work laws.

• Labor-Management Reporting and Disclosure Act (LMRDA)

– The act established an employee bill of rights and reporting requirements for union activities.

Union Organization 

Authorization Card: A card signed by an employee that gives a union permission to act on his or her behalf in negotiations with management.

• Union Elections

– Appropriate bargaining unit

– New NLRB rules expedite elections

– Voting

• Union Election Campaigns

– Employers may limit the campaign activities of union supporters as long as the employer has a legitimate business reason for doing so.

• Collective Bargaining

– The process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions.

Exela Enterprise Solutions, Inc. v. National Labor Relations Board

• Exela Enterprise Solutions, Inc. was operating a warehouse in New Jersey. Out of fourteen eligible voters, eight voted in favor of joining the AFL-CIO, CLC union.

• Exela representatives refused to bargain in good faith with the union, claiming that union representatives had violated election rules. However, the company was unable to provide any real evidence of these alleged violations.

Good Faith versus Bad Faith in Collective Bargaining

Good Faith Bargaining 

1. Negotiating with the belief that an agreement is possible

2. Seriously considering the other side's positions

3. Making reasonable proposals

4. Being willing to compromise

5. Sending bargainers who have the authority to enter into agreements for the company

Bad Faith Bargaining

1. Excessive delaying tactics

2. Insistence on unreasonable contract terms

3. Rejecting a proposal without offering a counterproposal

4. Engaging in a campaign among workers to undermine the union

5. Constantly shifting positions on disputed contract terms

Strikes

• Strike: An action undertaken by unionized workers when collective bargaining fails. The workers leave their jobs, refuse to work, and (typically) picket the employer’s workplace.

• The right to strike

– The right to strike is guaranteed by the NLRA, within limits.

– Certain strike activities are protected by the free speech guarantee of the First Amendment.

• After a strike ends

Lockouts

A refusal on the part of an employer to allow employees to engage in their employment duties as part of a labor dispute.