Chapter 24: Employment, Immigration, and Labor Law © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 1
Learning Objectives • What is the employment-at-will doctrine? When and why are exceptions to this doctrine made? • What federal statute governs working hours and wages? • Under the Family and Medical Leave Act of 1993, under what circumstances may an employee take family or medical leave? © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2
Learning Objectives • What are the two most important federal statutes governing immigration and employment today? • What federal statute gave employees the right to organize unions and engage in collective thinking? © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3
Employment-at-Will • 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4
Employment-at-Will • The doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability. • Some states recognize one or more judicial exceptions to this rule, while some states recognize none. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5
Exceptions • Contract Exceptions: An implied contract exists between employer and employee. Oral agreements may become part of the implied contract. • Tort Exceptions: Wrongful discharge, defamation may be actionable. • Public Policy Exceptions (Whistleblowing). • Wrongful Discharge. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6
Wage and Hour Laws • Child Labor. – Fair Labor Standards Act (1938) prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7
Wage and Hour Laws • Wages and Hours. – 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. • Overtime Exemptions. – Certain employees (usually executive, administrative, and professional) are exempt from overtime. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8
Layoffs • Worker Adjustment and Retraining Notification Act. – Intended to give employees advance notice in the event of a “mass layoff. ” – Mass layoff: during 30 day period, loss of at least 33% full-time and 50 employees, OR – Loss of 500 hundred employees. – Remedies for Violations: $500/day, plus back pay, medical benefits. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9
Family 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. Case 24. 1 Darst v. Interstate Brands Corp. IBC did not violate FMLA when it fired Chalimoniuk for excessive absences that were beyond FMLA’s scope. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10
Worker 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11
Worker Health and Safety • State 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12
Income Security • Social Security and Welfare. • Medicare. – Federally funded health insurance for people aged 65 or older. • 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13
COBRA • 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14
Employer-Sponsored Group Health Plans • Health Insurance Portability and Accountability Act (HIPAA) – Does not require health coverage but does establish requirements for those that do. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15
Employee Privacy Rights • Electronic Monitoring in the Workplace. – Employee Privacy Under Constitutional and Tort Law. Personal right to privacy may not apply to work computers, especially if there is a policy manual. – Electronic Communications Privacy Act. – Stored Communications (part of ECPA). © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16
Employee Privacy Rights • Other Types of Monitoring. – Lie Detectors. – Drug and Genetic Testing. – What about preemployment screening procedures? © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17
Immigration Law • Immigration Reform and Control Act of 1986. – Amnesty to certain groups of illegal aliens living in the United States. – Sanctions for employers. – Criminal and Civil Penalties. – Antidiscrimination Provisions. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18
Immigration Law • Immigration Act of 1990. – I-9 Employment Verification by Employers. – I-551 Alien Registration Receipts. – H-1 B Visa Program. – Labor Certification. – H-2, O, L, and E Visas. Case 24. 2 Castellanos-Contreras v. Decatur Hotels, LLC. Guest workers are liable for their own recruitment, transportation, and visa expenses if incurred without employer’s knowledge. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19
Labor Unions—Federal Labor Laws • Norris-La. Guardia 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. – Established the NLRB. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20
Labor 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. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21
Union Organization • Authorization Cards: first step in organizing a union. Employer may recognize the union. • Union Elections Supervised by NRLB. • Union Election Campaign. Case 24. 3 Local Joint Executive Board of Las Vegas v. NLRB. Managers’ observations of union activity was not illegal because there were no threats or coercion that limited union rights. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22
Union Organization • Collective Bargaining. • Strikes. – Right to Strike. • Rights of Strikers After Strike Ends. – Generally, employer has a right to hire permanent replacements. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23
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