Chapter 40 Regulation of Employment Twomey, Business Law and the Regulatory Environment (14th Ed.)

Chapter 40Chapter 40

Regulation of EmploymentRegulation of Employment

Chapter 40Chapter 40

Regulation of EmploymentRegulation of Employment

Twomey, Business Law and the Regulatory Environment (14th Ed.)

(c) 2000 West Legal Studies Chapter 40 2

Employment Relationship Employment Relationship [40-1][40-1]

Consent

(Individual or CollectiveBargaining Agreement)

Employer

Pays Compensation

Employee

Performs services/works under employer’s direction and control

IndependentContractor

Performs duties free from control by other party

Agent

Negotiates contracts on behalf of and under control of principal


Federal Regulation of EmploymentFederal Regulation of Employment [40-2] [40-2]

Working Conditions

Wagesand

Hours

Privacy Safety ContractTerms

Fair LaborStandards

Act

DrugTesting

E-MailMonitoring

OSHA

National LaborRelations Act

Sweat ShopCode Compensation and Benefits

Fair LaborStandards

Act

Pensions

ERISA

Unemployment SocialSecurity

Family andMedical

Leave Act


Employer and Union Unfair Labor Practices Employer and Union Unfair Labor Practices ChargesCharges

Employer and Union Unfair Labor Practices Employer and Union Unfair Labor Practices ChargesCharges

1. Restrain or coerce employees in the exercise of theirrights under Section 7; threat of reprisals or promise ofbenefits

8(a)(1);8(c)

2. Dominate or interfere with the formation oradministration of a labor organization or contributefinancial or other support to it.

8(a)(2)

3. Discriminate in regard to hire or tenure of employmentor any term or condition of employment in order toencourage or discourage membership in any labororganization.

8(a)(3)

4. Discharge or otherwise discriminate against employeesbecause they have given testimony under the Act.

8(a)(4)

5. Refuse to bargain collectively with representatives of itsemployees.

8(a)(5)

Unfair Labor Practices Charges Against Employers Section of the NLRA*


Employer and Union Unfair Labor Practices Employer and Union Unfair Labor Practices ChargesCharges (cont’d)(cont’d)

1. Restrain or coerce employees in the exercise of their rightsunder Section 7.

8(b)(1);(A)

2. Restrain or coerce an employer in the selection of itsrepresentatives.

8(b)(1)(B)

3. Cause or attempt to cause an employer to discriminate againstan employee.

8(b)(2)

4. Refuse to bargain collectively with the employer. 8(b)(3)

5. Require employees to pay excessive fees for membership. 8(b)(5)

6. Engage in “featherbed practices” of seeking pay for servicesnot performed.

8(b)(6)

7. Use secondary boycotts (banned, except for publicity proviso). 8(b)(4)

8. Allow recognitional and organizational picketing by anuncertified union.

8(b)(7)

9. Enter into “hot cargo” agreements, except for construction andgarment industries

8(e)

Unfair Labor Practices Charges Against Employers Section of the NLRA*


Chapter 40 SummaryChapter 40 SummaryChapter 40 SummaryChapter 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.


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.

Chapter 40 Summary Chapter 40 Summary [2][2]Chapter 40 Summary Chapter 40 Summary [2][2]


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.



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.



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.



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-to-know” laws, which require employers to inform their employees of any hazardous substances present in the workplace.



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.



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.



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.



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.


Chapter 40 Regulation of Employment Twomey, Business Law and the Regulatory Environment (14th Ed.)

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Transcript of Chapter 40 Regulation of Employment Twomey, Business Law and the Regulatory Environment (14th Ed.)