Chapter 40Labor and Employment

Law

Chapter 40Labor and Employment

Law

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What is the employment at will doctrine? When and why are exceptions made?

What federal statutes govern working hours? What federal statutes govern labor unions and collective bargaining?

What federal act was enacted to protect the health and safety of employees?

What is the Family and Medical Leave Act? Does electronic monitoring violate employees’

right to privacy?

What is the employment at will doctrine? When and why are exceptions made?

What federal statutes govern working hours? What federal statutes govern labor unions and collective bargaining?

What federal act was enacted to protect the health and safety of employees?

What is the Family and Medical Leave Act? Does electronic monitoring violate employees’

right to privacy?

Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

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IntroductionIntroductionHistorically, employment law was

governed by the common law doctrine of “employment at will” where either employer or employee could terminate the relationship at any time, for any reason.

Today employment law is heavily regulated by state and federal statutes.

Historically, employment law was governed by the common law doctrine of “employment at will” where either employer or employee could terminate the relationship at any time, for any reason.

Today employment law is heavily regulated by state and federal statutes.

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Wage-Hour LawsWage-Hour LawsHours and Wages.

Davis-Bacon Act -- the prevailing wage act.Walsh-Healey Act -- the beginning of minimum wages.Fair Labor Standards Act (FLSA) -- an extension of

wage and hour regulation to workers in interstate commerce.

Child Labor.FLSA prohibits oppressive child labor practices.

Provides regulations for work, depending on the age of child.

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Labor UnionsLabor Unions

Norris-LaGuardia Act.Protects peaceful strikes by limiting the

injunction powers of federal courts.

National Labor Relations Act.Establishes the right of workers to strike

and engage in collective bargaining.

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Labor UnionsLabor Unions

Labor Management Relations Act.Prohibits certain unfair union practices

such as closed shops.Labor-Management Reporting and

Disclosure Act.Regulates the internal operations of

unions and outlaws hot-cargo agreements.

Labor Management Relations Act.Prohibits certain unfair union practices

such as closed shops.Labor-Management Reporting and

Disclosure Act.Regulates the internal operations of

unions and outlaws hot-cargo agreements.

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Union OrganizationUnion OrganizationUnion organization involves:

Elections.• An election can be held only if it can be shown that

at least 30% of the workers will be represented.Election Campaigns.

• The National Labor Relations Board regulates the rights and obligations of employers and workers in the election process.

• Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities.

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Collective BargainingCollective Bargaining

Collective bargaining is the process by which management and labor negotiate the terms and conditions of employment.The NLRB will certify an exclusive bargaining

agent for labor.Both labor and management must bargain in

good faith, but the law does not require that they reach an agreement.

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StrikesStrikesThere are two basic forms of strikes:

Economic Strikes.• These are strikes over wages.• Workers can be replaced by permanent

replacements.

Unfair Labor Practice Strikes.• These are strikes alleging that the employer

has committed an unfair labor practice.

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Worker Health and SafetyWorker Health and Safety

The Occupational Safety and Health Act. (OSHA).The fundamental federal law aimed toward

safety in the workplace.Enforcement is by OSHA, NIOSH, and the

OSHRC.Procedures and Violations: Employers with 11

or more employees required to keep records.

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Worker Health and SafetyWorker Health and SafetyState Workers’ Compensation Laws.

These laws reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by:

Requiring that injured employees make a claim against the employer’s workers’ compensation insurance policy, instead of suing the employer.

Requiring most employers to carry workers’ compensation insurance.

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Income SecurityIncome Security

Social Security and Welfare.Private Pension Plans.

Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working.

Unemployment Insurance.

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COBRACOBRA

COBRA prohibits the discontinuance of insurance benefits of workers who have voluntarily or involuntarily been separated from work, unless the involuntary separation was on the basis of gross misconduct.

Employers must comply if they have more than 20 employees.

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Family and Medical Leave Act

Family and Medical Leave Act

The FMLA requires employers with over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition.

The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work.

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Employee Privacy RightsEmployee Privacy Rights Laws protecting Employee Privacy

RightsElectronic Communications Privacy Act

allows employers to monitor electronic communications in the workplace.

But it prohibits intentional interception of personal communications

ECPA does permit employers to monitor employee electronic communications in the course of business.

Laws protecting Employee Privacy RightsElectronic Communications Privacy Act

allows employers to monitor electronic communications in the workplace.

But it prohibits intentional interception of personal communications

ECPA does permit employers to monitor employee electronic communications in the course of business.

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Employee Privacy RightsEmployee Privacy Rights

Electronic Performance Surveillance. Most limitations can be avoided if the employer

informs employees that surveillance will occur.

Screening Procedures. Application question must have some reasonable

connection to the job sought.

Discussion: Electronic Monitoring in the Workplace.

Electronic Performance Surveillance. Most limitations can be avoided if the employer

informs employees that surveillance will occur.

Screening Procedures. Application question must have some reasonable

connection to the job sought.

Discussion: Electronic Monitoring in the Workplace.

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Employee Privacy RightsEmployee Privacy Rights

Privacy Expectations and Email systems Courts generally hold for employers.

Other Types of Monitoring Lie Detector Tests. Prohibited, except under the

ongoing investigation exception. Drug Testing. Most government employees are

subject to testing and the rights of private employees vary from state to state.

AIDS Testing. Some state statutes restrict AIDS testing.

Privacy Expectations and Email systems Courts generally hold for employers.

Other Types of Monitoring Lie Detector Tests. Prohibited, except under the

ongoing investigation exception. Drug Testing. Most government employees are

subject to testing and the rights of private employees vary from state to state.

AIDS Testing. Some state statutes restrict AIDS testing.

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Employment-Related Immigration Laws

Employment-Related Immigration Laws

The Immigration Reform and Control Act prohibits the hiring of illegal aliens.

The Immigration Act of 1990 limits the number of legal immigrants into the U.S.

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Wrongful DischargeWrongful DischargeThe doctrine of employment-at-will

allows the employer and the employee to terminate employment at any time, for any reason, without liability.

Some states however recognize one or more judicial exceptions to this rule, while some states recognize none.

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Wrongful DischargeWrongful Discharge

There are three such exceptions to the doctrine of employment at will:Contract (implied covenant of Good

Faith and Fair Dealing).Torts: fraud, emotional distress.Public Policy.

There are three such exceptions to the doctrine of employment at will:Contract (implied covenant of Good

Faith and Fair Dealing).Torts: fraud, emotional distress.Public Policy.

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Whistleblower StatutesWhistleblower Statutes

A whistleblower is one who reports illegal employer activities to the proper authorities.

Whistleblowers are frequently subjected to retaliation for such activities.

There are a number of state and federal (Whistleblower Protection Act) whistle-blower protection statutes, offering a wide variation in protections.