Transcript Chapter 40 Regulation of Employment

Chapter 40
Regulation of Employment
Twomey, Business Law and the
Regulatory Environment (14th Ed.)
Employment Relationship [40-1]
Consent
Employee
(Individual or Collective
Bargaining Agreement)
Performs services/works under
employer’s direction and control
Employer
Pays Compensation
Independent
Contractor
Performs duties free from
control by other party
Agent
Negotiates contracts on
behalf of and under control
of principal
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Federal Regulation of Employment [40-2]
Working Conditions
Wages
and
Hours
Fair Labor
Standards
Act
Drug
Testing
Safety
Contract
Terms
E-Mail
Monitoring
National Labor
Relations Act
OSHA
Sweat Shop
Code
Fair Labor
Standards
Act
Privacy
Pensions
Compensation and Benefits
Unemployment
Social
Security
ERISA
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Family and
Medical
Leave Act
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Employer and Union Unfair Labor Practices
Charges
Unfair Labor Practices Charges Against Employers
1. Restrain or coerce employees in the exercise of their
rights under Section 7; threat of reprisals or promise of
benefits
2. Dominate or interfere with the formation or
administration of a labor organization or contribute
financial or other support to it.
3. Discriminate in regard to hire or tenure of employment
or any term or condition of employment in order to
encourage or discourage membership in any labor
organization.
4. Discharge or otherwise discriminate against employees
because they have given testimony under the Act.
Section of the NLRA*
8(a)(1);8(c)
8(a)(2)
8(a)(3)
8(a)(4)
5. Refuse to bargain collectively with representatives of its 8(a)(5)
employees.
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Employer and Union Unfair Labor Practices
Charges (cont’d)
Unfair Labor Practices Charges Against Employers
Section of the NLRA*
1. Restrain or coerce employees in the exercise of their rights
under Section 7.
2. Restrain or coerce an employer in the selection of its
representatives.
3. Cause or attempt to cause an employer to discriminate against
an employee.
4. Refuse to bargain collectively with the employer.
5. Require employees to pay excessive fees for membership.
8(b)(1);(A)
6. Engage in “featherbed practices” of seeking pay for services
not performed.
7. Use secondary boycotts (banned, except for publicity proviso).
8(b)(6)
8. Allow recognitional and organizational picketing by an
uncertified union.
9. Enter into “hot cargo” agreements, except for construction and
garment industries
8(b)(7)
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8(b)(1)(B)
8(b)(2)
8(b)(3)
8(b)(5)
8(b)(4)
8(e)
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Chapter 40 Summary
The relationship of employer and employee is created
by the agreement of the parties and is subject to the
principles applicable to contracts. If the employment
contract sets forth a specific duration, the employer
cannot terminate the contract at an earlier date unless
just cause exists. If no definite time period is set forth,
the individual is an at-will employee. Under the
employment-at-will doctrine, an employer can
terminate the contract of an at-will employee at any
time for any reason or for no reason.
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Chapter 40 Summary [2]
Courts in many jurisdictions, however, have
carved out exceptions to this doctrine when the
discharge violates public policy or is contrary to
good faith and fair dealing in the employment
relationship. The Fair Labor Standards Act
regulates minimum wages, overtime hours, and
child labor.
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Chapter 40 Summary [3]
Under the National Labor Relations Act, employees
have the right to form a union to obtain a collective
bargaining contract or to refrain from organizational
activities. The National Labor Relations Board
conducts elections to determine whether employees
in an appropriate bargaining unit desire to be
represented by a union. The NLRA prohibits
employers’ and unions’ unfair labor practices and
authorizes the NLRB to conduct proceedings to stop
such practices.
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Chapter 40 Summary [4]
Economic strikes have limited reinstatement
rights. Federal law sets forth democratic standards for
the election of union offices.
The Employees Retirement Income Security Act
(ERISA) protects employees’ pensions by requiring (1)
high standards of those administering the funds, (2)
reasonable vesting of benefits, (3) adequate funding,
and (4) an insurance program to guarantee payments of
earned benefits.
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Chapter 40 Summary [5]
Unemployment compensation benefits are paid to
persons for a limited period of time if they are out of
work through no fault of their own. Persons
receiving unemployment compensation must be
available for placement in a job similar in duties and
comparable in rate of pay to the job they lost.
Twelve-week maternity, paternity, and adoption
leaves are available under the Family and Medical
Leave Act.
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Chapter 40 Summary [6]
Employers and employees pay Social Security
taxes to provide retirement benefits, disability
benefits, life insurance benefits, and Medicare.
The Occupational Safety and Health Act
provides for (1) the establishment of safety and
health standards and (2) the effective enforcement of
these standards. Many states have enacted “right-toknow” laws, which require employers to inform their
employees of any hazardous substances present in
the workplace.
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Chapter 40 Summary [7]
Workers’ compensation laws provide for the
prompt payment of compensation and medical
benefits to persons injured in the course of
employment without regard to fault. An
injured employee’s remedy is generally
limited to the remedy provided by the
workers’ compensation statute. Most states
also provide compensation to workers for
occupational diseases.
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Chapter 40 Summary [8]
The Bill of Rights is the source of public sector
employees’ privacy rights. Private sector
employees may obtain limited privacy rights
from statutes, case law, and collective
bargaining agreements. Employers may monitor
employee telephone calls, although once it is
determined that the call is personal, the
employer must stop listening or be in violation
of the federal wiretap statute.
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Chapter 40 Summary [9]
The ordinary-course-of-business and consent
exceptions to the Electronic Communications Privacy
Act of 1986 (ECPA) give private employers a great
deal of latitude to monitor employee E-mail.
Notification to employees of employers’ policies on
searching lockers, desks, and offices reduces
employees’ expectations of privacy, and a search
conducted in conformity with a known policy is
generally not an invasion of privacy.
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Chapter 40 Summary [10]
Drug and alcohol testing is generally
permissible if it is based on reasonable
suspicion; random drug and alcohol testing may
also be permissible in safety-sensitive positions.
Immigration laws prohibit the employment
of aliens who have illegally entered the United
States.
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