Chapter 17
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Transcript of Chapter 17
Employment and Labor Law
“Without the power of the industrial union behind it, democracy can only enter the state
as a victim enters the gullet of a serpent.” James Connolly,
Irish labor leader
“Unionism seldom, if ever, uses such power as it has to insure better work; almost
always it devotes a large part of that power to safeguarding bad work.”
H.L MenckenAmerican journalist
In pre-industrial society, most people followed their parents’ occupations
With the industrial revolution came changes in employment law and employment contracts◦ An employee at will can be fired for a good
reason, a bad reason or no reason at all
Guarantees both men and women up to 12 weeks of unpaid leave each year for: ◦ Childbirth ◦ Adoption◦ Medical emergencies for themselves or a family
member
The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides that:◦ Former employees must be allowed to continue
their health insurance for 18 months after leaving their job
Prohibits an employer from firing a worker for a bad reason
Public policy rule - Prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities◦ Refusing to violate the law◦ Performing a legal duty◦ Exercising a legal right◦ Supporting societal values
Truth in hiring◦ Oral promises made during the hiring process can
be enforceable Even if not approved by the company’s top
executives Employee handbook creates a contract Covenant of good faith & fair dealing
◦ In almost all states, courts will imply a covenant of good faith and fair dealing in an at-will employment relationship
Defamation◦ Employers may be liable for defamation when:
They give false and unfavorable references about a former employee
◦ More than half of the states recognize a qualified privilege for employers who give references about former employees
◦ Employers are generally not required to give any information about former employees, but: Sometimes be held liable if potentially dangerous
information is withheld
Intentional infliction of emotional distress◦ Employers who condone cruel treatment of their
workers: Face liability under the tort of intentional infliction of
emotional distress
Employees who disclose illegal behavior on the part of their employer
The False Claims Act prohibits employers from firing workers who file under the statute
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 the
award (that tops $1 million) the government receives
The Sarbanes-Oxley Act of 2002 protects employees of publicly traded companies who provide evidence of fraud to investigators
Constitutional protection for government employees◦ Employees of federal, state, and local
governments have a right to free speech under the United States Constitution
Statutory protection for federal employees◦ The Civil Service Reform Act and the
Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing
State laws◦ 50 states have laws that protect whistleblowers
from retaliation by their employers
Employers have the right to fire workers for off-duty conduct◦ Statutes that change this law are:
General lifestyle statutes Laws that protect specific behavior
Smoking◦ Employers refuse to hire smokers
Policy is legal unless state law prohibits it Alcohol and drug testing is allowed by
private businesses:◦ Government employers may test if signs of use
are seen or if job safety is an issue Employers may not require or even suggest
the use of lie detector tests, except in: ◦ Investigations of crimes
Electronic monitoring of the workplace◦ The Electronic Communications Privacy Act of
1986 (ECPA) permits employers to monitor workers’ telephone calls, e-mail messages, and “instant messages” if: Employee consents Monitoring occurs in the ordinary course of business In the case of e-mail, the employer provides the e-
mail system
Social media◦ Employers should consider anything they publish
on the Internet to be public Immigration
◦ Because of discrimination laws, employers should not ask about an applicant’s country of origin: They are permitted to inquire if the person is
authorized to work in the United States
In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions◦ Sets specific health and safety standards◦ Obliges employers to keep workplace “free from
recognized hazards”◦ Requires records of all injuries and accidents◦ Allows inspection of workplaces and fines for
unsafe conditions
Fair Labor Standards◦ Passed in 1938, the Fair Labor Standards Act
(FLSA) regulates wages and limits child labor Workers’ compensation
◦ Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work
Social security◦ System pays benefits to:
Workers who are retired, disabled, or temporarily unemployed
Spouses and children of disabled or deceased workers
Pension benefits◦ In 1974, Congress passed the Employee
Retirement Income Security Act (ERISA) to: Protect workers covered by private pension plans
Key pro-union statutes◦ Norris-LaGuardia Act (passed in 1932):
Prohibits federal court injunctions in nonviolent labor disputes
Permits workers to form unions and use collective bargaining power
◦ National Labor Relations Act: Ensures the right of workers to form unions Encourages management and unions to bargain
collectively and productively
◦ National Labor Relations Act Section 7 guarantees employees the right to:
Organize and join unions Bargain collectively through representatives of their own
choosing Engage in other concerted activities
Section 8 prohibits employers from engaging in the following unfair labor practices (ULPs) Interfering with union organizing efforts Dominating or interfering with any union Discriminating against a union member Refusing to bargain with a union
◦ National Labor Relations Board (NLRB): Administers and interprets the NLRA and adjudicates labor cases
Labor unions today◦ Only about 1 in 8 are union members◦ Attract political attention◦ Public employees more likely to be union
members Not protected by the NLRA
Organizing a union◦ Exclusivity - Under §9 of the NLRA, a validly
recognized union is the exclusive representative of the employees
◦ Organizing – Stages Campaign Authorization cards - If organizers get enough cards,
they seek recognition as the official representative for the bargaining unit
Petitions the NLRB for an election Requires 30% of the workers’ approval
Election Card-Check debate – When more than 50% of
workers sign an authorization card: NLRB designates union as the exclusive representative
without election
◦ Organizing – Actions NLRA guarantees employees the right to talk among
themselves about: Forming a union To hand out literature Ultimately join a union
Employer may present anti-union views to its employees: May not use either threats or promises of benefits to
defeat a union drive
Collective bargaining agreement: Contract between union and management◦ Mandatory subjects - Wages, hours, and other
terms and conditions of employment◦ Both the union and the employer must bargain in
good faith Not obligated to reach an agreement
Concerted action: Tactics taken by union members to gain bargaining advantage◦ NLRA guarantees the right of employees to
engage in concerted action for mutual aid or protection
◦ Strikes – NLRA guarantees employees the right to strike, but with limitations No-strike clause: Prohibits the union from striking
while the CBA is in force Cooling off period – Before striking, union must give
management 60 days’ notice
◦ Strikes Statutory prohibition – Many states have outlawed
strikes by public employees Violent strikes are prohibited
Sit-down strikes: Members stop working, but remain at posts
Partial strikes – Occur when employees stop working temporarily
Replacement workers Management has the right to hire replacement workers
during a strike After an economic strike, an employer may not
discriminate against a striker Employer is not obligated to lay off a replacement worker
to give a striker his job back After a ULP strike, a union member is entitled to her job
back: Even if that means the employer must lay off a
replacement worker
◦ Picketing the employer’s workplace in support of a strike is generally lawful
◦ Lockouts – Management prohibits workers from entering the premises and earning their paychecks