CH 34- Employment immigration and labor law

Employment at will

Has been traditionally governed by the common law doctrine. Either party may terminate the employment relationship at any time and for any reason, unless doing so violates an employee’s statutory or contractual rights

• Covenant of good faith

  • Requires that both parties act honestly and fairly in their dealings, preventing terminations motivated by bad faith or malice.

• exceptions

  • California

    • all considered employment at will

  • tort

    • some situations the discharge of an employment may give rise to an action for wrongful discharge. some courts are permitted to sue their employers under the tort theory of fraud

  • public policy

    • Employer’s reason for firing the employee violates a fundamental public policy of the jurisdiction.

    • courts require public policy to be expressed clearly

      • cant fire for being a whistleblower

      • wrongful discharge

Wage and Hour Laws

FSLA: The Fair Labor Standards Act establishes minimum wage, overtime pay eligibility, recordkeeping, and youth employment standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.

• Child labor

  • FLSA prohibits oppressive child labor

  • children 14-15 are allowed to work but not in hazardous occupations

Minimum wage: must be paid to covered non exempt employees.

• tipped workers

  • if worker receives tips, FLSA gives tip credit towards minimum wage

  • if not tip and wages no not equal federal minimum wage, the employer must make up the difference.

    • Does not apply in California!

• Overtime

  • Employers working over 40 hours per week must be paid no less than 1.5 times

  • California

    • working over 8 hours a day can have overtime

• Exemptions

  • administrative

  • management

    • managers

  • professional

    • people with licenses. i.e doctors

  • computer programmers

    • minimum salary (66k in order to be exempt)

Layoffs

Warn act

• 60 day notice when they want to terminate employee

• number of workers

• number of days notice

• fines

FMLA (Family Medical Leave Act)

• number of workers

  • fifty or more

• length of service

  • At least a year

• number of weeks

  • 12 weeks

• position requirement

  • employee must be restores to their original position

• exceptions

  • avoid reinstating a key employee (pay falls within the top 10 percent)

OSHA (occupational safety and Health act)

The primary legislation protecting employees’ health and safety. imposes on employers a general duty to keep the workplace safe

• employers within eleven or more employees are requires to keep occupational injury and illness records for each employee

• deaths must be reported directly to OSHA within eight hours and submit report within 24 hours, if not, company will be fined

Workers compensation laws

• payment v. litigation

  • employee may not sure for injuries caused by employer’s negligence. also prevent from avoiding liability

• on the job requirement

  • the existence of an employment relationship

  • an accidental injury that occurred on the job or in the course of employment, regardless of fault. (an injury that occurs while an employee is commuting to or from work usually is not covered)

Income security

• Social security

  • provides for old-age (retirement)

  • designed to protect employees and their families from the financial impact of retirement, disability, death, hospitalization, and unemployment.

• medicare

  • is a federal government health-insurance program administered by the social security administration for people 65 years of age or for some under 65 who are disabled

• Private pension plans

• unemployment insurance

  • FUTA (federal unemployment tax act)

• COBRA

  • enables employees to continue, for a limited time, their health-care coverage after they are no longer eligible for group health-insurance plans

    • term

  • HIPPA (employer sponsored group health plans)

    • restricts the manner in which employers collect, use, and disclose the health information of employees and their families

• affordable care act

  • requires most employers with 50 or more full time employees to offer health insurance benefits. Tax credits of up to 35 percent to offset costs

Employee privacy acts

• electronic monitoring

  • California ruling

  • business extension exception

  • stored communication act

    • cant monitor personal phone unless on company wifi (this can be allowed)

• lie detector

  • Not used

    • exception

      • federal, state, and local government employers, security service firms, may conduct these tests

• drug testing

  • government

    • constrained by the fourth amendment

  • private employers

    • fourth amendment does not apply

• genetic testing

  • in California, not allowed

    • insurance cost?

      • used to determine illnesses to prevent costs in a business for the insurance

Immigration

• Federal law

  • most important laws:

    • immigration act 1990

      • increased the number of immigrants allowed to enter the country and creating new immigrants programs

    • immigration reform and control act (1986)

      • provided amnesty to certain groups of aliens living illegally in the U.S at a time

  • I-9 employment verification

    • enforcement

      • ICE has general inspection

    • penalties

      • employers who violates law is subject to penalties. can be fined 2200 for each unauthorized for first offense, 5000 for second, and up to 11000 for subsequent

• immigration act 1990

  • purpose: placed caps on number of visas(entry permits) that can be issued per year, including employment bases

  • how it is done:

    • self authorization (green card)

    • H-IB

      • most common, the potential employee must be qualifies in a “specialty occupation”

      • needs highly specialized knowledge and has attained a bachelor’s or higher degree

  • H-2, O, L visas

    • H-2: workers performing agricultural labor of seasonal nature

    • O : for “extraordinary ability in sciences, arts, education, business etc”

    • L: for company’s foreign managers or executives to work inside US

• State immigration legislation

  • preemption issue

  • state limitations

    • supreme court decisions does not prohibit states from enacting laws related to immigration, but sets limits

Federal labor laws

• Norris LaGuardia act

  • Congress protected peaceful strikes, picketing, and boycotts in 1932

• National labor relations act (NLRA)

  • Establishes the rights of employees to engage in collective bargaining and to strike

  • unfair labor practices:

    • interference with employees trying to form, join, assist organization

    • employer’s domination of labor organization

    • discrimination in hiring or awarding for not unionizing

    • discrimination against employees for filing charges

    • refusal to bargain collectively

  • National labor relations board

    • organization to oversee union elections and to prevent employers from engaging in unfair and illegal union activities and unfair labor practices

• Labor management relations act

  • prohibits certain unfair union practices

  • prohibits unions from refusing to bargain with employers, engaging in types of picketing, and featherbedding (hiring more employees than necessary)

• labor management reporting and disclosing

  • established an employee bill of rights and reporting requirements for union activities

  • outlawed hot-cargo agreements, employers voluntarily agree with unions not to handle, use, or deal in goods of other employers product by nonunion employees

• Decision to form a union

  • sign authorization (majority)

    • appropriate bargaining unit (50%)

      • non management

• union election

  • NLRB regulates and supervises

  • during union campaign

    • management role