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